Mark Lee Ward v. Commonwealth ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Felton and Senior Judge Hodges
Argued at Chesapeake, Virginia
MARK LEE WARD
MEMORANDUM OPINION * BY
v. Record No. 1773-01-1 JUDGE WALTER S. FELTON, JR.
OCTOBER 15, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Johnny E. Morrison, Judge
Charles B. Lustig, Assistant Public Defender
(Brenda C. Spry, Deputy Public Defender, on
brief), for appellant.
Kathleen B. Martin, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Mark Ward was convicted in a bench trial of possession with
the intent to distribute cocaine, in violation of Code
§ 18.2-248, and felony obstruction of justice, in violation of
Code § 18.2-460. On appeal, he contends that the evidence was
insufficient to support the felony obstruction of justice
conviction. We affirm the judgment of the trial court.
I. BACKGROUND
On January 26, 2001, at approximately 8:30 a.m., Portsmouth
Police Officer S.W. Johnson was conducting a narcotics
surveillance operation at a Portsmouth Redevelopment and Housing
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Authority property. Concealed from observation since 5:00 a.m.
and employing binoculars to aid in the surveillance, he observed
a white, four-door Chrysler with handicapped tags pull up in
front of a residence. Officer Johnson had observed the vehicle
in the area earlier that morning.
A person known to the police exited the back seat and
entered the residence. A man and a woman subsequently
approached the passenger side of the vehicle and began speaking
with the passenger, later identified as Mark Ward. The man bent
over and held out his hand toward Ward. Ward placed in his hand
what appeared to be two rocks of cocaine. In return, the man
handed him U.S. currency. The man placed the cocaine in his
pocket and then walked off with the woman.
At that time, the back seat passenger returned to the
vehicle and the car drove away. Officer Johnson radioed his
observations to the arrest teams. Officer G.B. Smith and
Officer Woodson were assigned to an arrest team and stopped the
white Chrysler. Officer Smith, wearing his badge around his
neck, his gunbelt, and a shirt marked "police," exited his
vehicle and approached the passenger side of the Chrysler. As
he approached, he saw Ward's hand go down to his lap, then to
his mouth. When Officer Smith opened the passenger door he saw
Ward chewing. Officer Smith did not see the actual item that
Ward placed in his mouth. However, based on his police
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experience, Officer Smith believed Ward was placing drugs into
his mouth to prevent the police from recovering the evidence.
Officer Smith grabbed Ward and placed his hand on the back
of Ward's jaw to prevent him from swallowing. He repeatedly
told Ward to "spit it out," but he did not. Ward began
struggling with Officer Smith, flailing his arms. During the
struggle, he grabbed Officer Smith's badge and ripped it off
from around his neck. Ward was subsequently removed from the
vehicle at which time he exclaimed "I swallowed it, I swallowed
it." He was handcuffed, placed in the police car, and
transported to police headquarters. A search of Ward yielded
thirty-nine dollars in cash. No drugs were found on his person.
Officer J.D. Stokes was also part of an arrest team. He
arrested Eric Johnson who was observed with a woman buying
cocaine from Ward. Upon stopping Johnson, two rocks of crack
cocaine folded in a ten dollar bill were recovered.
In a bench trial conducted on April 23, 2001, Ward was
convicted of possession with the intent to distribute cocaine,
in violation of Code § 18.2-248, and obstruction of justice, in
violation of Code § 18.2-460. Ward appeals the obstruction of
justice conviction.
II. ANALYSIS
Where the sufficiency of the evidence is
challenged after conviction, it is our duty
to consider it in the light most favorable
to the Commonwealth and give it all
reasonable inferences fairly deducible
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therefrom. We should affirm the judgment
unless it appears from the evidence that the
judgment is plainly wrong or without
evidence to support it.
Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,
537 (1975).
Ward contends that the evidence was insufficient to support
the felony obstruction of justice conviction. He argues that
the Commonwealth failed to establish that he took any action to
obstruct or impede Officer Smith. He was merely trying to
defend himself as Officer Smith was choking him. We disagree.
Code § 18.2-460(C) provides in pertinent part:
If any person by threats of bodily harm or
force knowingly attempts to intimidate or
impede a . . . law-enforcement officer,
lawfully engaged in the discharge of his
duty . . . he shall be guilty of a Class 5
felony.
As the evidence shows, Ward used force to impede Officer Smith's
attempts to recover evidence in his mouth. Officers Smith and
Woodson stopped Ward's vehicle after Officer Johnson observed a
drug transaction occur. At the time of the stop, Ward knew of
the police presence. Officer Smith approached the car wearing
his gunbelt, a shirt marked "police," and his badge around his
neck.
As Officer Smith approached, Ward placed something in his
mouth and began to chew. Based on his training, experience, and
the earlier observations by the drug surveillance team of Ward's
activities, Officer Smith reasonably believed he was destroying
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evidence. Officer Smith attempted to recover the items. With
his hand around Ward's jaw and neck, he ordered Ward several
times to spit the items out of his mouth. Ward ignored the
commands. He struggled with Officer Smith, flailing his arms
and ripping Officer Smith's badge off from around his neck.
From this evidence, the fact finder could find beyond a
reasonable doubt that Ward's resistance was an act to free
himself from Officer Smith's grasp in order to prevent him from
recovering suspected drug evidence. This conduct amounts to a
use of force to impede a law enforcement officer's discharge of
his lawful duty. Consequently, the evidence at trial was
sufficient to support the felony obstruction of justice
conviction.
The judgment of the trial court is affirmed.
Affirmed.
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