Brian Charles Henley v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges O’Brien, Russell and Senior Judge Haley
UNPUBLISHED
Argued at Fredericksburg, Virginia
BRIAN CHARLES HENLEY
MEMORANDUM OPINION* BY
v. Record No. 0429-16-4 JUDGE MARY GRACE O’BRIEN
MAY 16, 2017
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
Jeffrey W. Parker, Judge
Kevin J. Gerrity, Deputy Public Defender (Christopher Morehouse,
Assistant Public Defender, on brief), for appellant.
Rosemary V. Bourne, Senior Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
Brian Charles Henley (“appellant”) was charged with identity fraud, in violation of Code
§ 18.2-186.3, and assault and battery of a law enforcement officer, in violation of Code § 18.2-57.
Appellant filed a pretrial motion to suppress his statements to law enforcement officers.
Following a hearing, the court denied his motion. At trial, the court granted appellant’s motion
to strike the evidence on the identity fraud charge. A jury convicted appellant of the remaining
charge of assault and battery of a law enforcement officer.
Appellant asserts the following assignments of error:
1. The trial court erred in denying [a]ppellant’s motion to
suppress by finding that [a]ppellant was not in custody at the
time of questioning by the three deputies thereby allowing the
deputies to continue to question him despite his request for
counsel.
2. The jury erred when it determined [a]ppellant to be guilty of
assault and battery of a law enforcement officer and not finding
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
[a]ppellant used a reasonable amount of force to resist an
illegal arrest.
BACKGROUND
On the evening of June 20, 2015, Lisa Davis, a paramedic, encountered appellant laying
in the grass near an apartment building. Davis was concerned because appellant appeared
“confused and groggy” and was unable to respond to questions. He struggled to sit up, and she
testified that he appeared to have “an altered mental status.” Davis called for police assistance.
Deputy Wesley Frost, Deputy Joy Weaver, and Corporal Steven Brubaker responded.
Deputy Frost approached appellant, who was sitting on steps outside the apartment building, and
asked “how he was doing.” When appellant “looked up, he had dilated eyes, bloodshot eyes,”
and the deputy observed “a faint odor of alcoholic beverage coming from him.” As Deputy Frost
spoke with appellant, he noticed that his speech was slurred and that he had a “thousand-yard
stare.” Despite appellant’s assertion that he “was fine,” Deputy Frost asked him to write down
his name, date of birth, and social security number to determine if there were any outstanding
warrants or medical issues under appellant’s name.
Appellant told the deputies that he wanted to call his attorney. The deputies permitted
appellant to make the call, but he was unable to contact the attorney. The deputies reiterated
their request for appellant’s identifying information and appellant wrote down a name, social
security number, and a phone number. The social security number was inaccurate.
Appellant attempted to enter the apartment building, but Corporal Brubaker followed
him, touched him on the arm, and asked him to return outside. After the deputies confirmed that
there were no active warrants for appellant, they asked him to perform a preliminary breath test.
Because the test registered a blood alcohol content of .129, the deputies placed appellant under
arrest for drunk in public and identity fraud for providing a false social security number.
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As they attempted to walk appellant toward Deputy Frost’s cruiser, appellant became
disorderly. He made lewd comments to Corporal Brubaker, kicked him, and attempted to kiss
him. As a result, appellant was charged with assault and battery on a law enforcement officer.
ANALYSIS
A. Assignment of Error 1 – Denial of Motion to Suppress
Appellant contends that he was subjected to a custodial interrogation after he requested
counsel. He argues that “all statements made by [him] subsequent to requesting an attorney
should be suppressed.” Appellant does not specify what “statements” were incriminating and
should be suppressed.
Appellant was only convicted of assault and battery on a law enforcement officer; the
identity fraud charge was dismissed. Even assuming appellant’s argument refers to the
information he wrote at the officer’s direction, which led to the identity fraud charge, those
“statements” are not relevant to the assault and battery charge. Accordingly, as appellant
conceded at oral argument, there were no incriminating statements to be suppressed by the trial
court.
B. Assignment of Error 2 – Appellant’s Right to Resist an Illegal Arrest
Appellant argues that the “jury erred” by failing to find that he was illegally arrested and
therefore had a right to resist the arrest with reasonable force. Initially, we note that this Court
only reviews errors of law, not errors of fact. The appellate court’s “function is to review the
rulings of the trial court.” Brown v. Commonwealth, 8 Va. App. 126, 131, 380 S.E.2d 8, 10
(1989).
Additionally, although appellant made a motion to strike, it was not based on his
contention that he had the right to resist an illegal arrest. His sole argument was that the
evidence was insufficient to prove assault and battery. At the conclusion of the evidence, he
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renewed his motion to strike “on the same grounds.” Further, appellant did not move to set aside
the jury verdict after the trial concluded.
Because he did not specifically raise the issue before the trial court, appellant’s
assignment of error is barred by Rule 5A:18. Under Rule 5A:18, “[n]o ruling of the trial court
. . . will be considered as a basis for reversal unless an objection was stated with reasonable
certainty at the time of the ruling, except for good cause shown or to enable the Court of Appeals
to attain the ends of justice.” “Making one specific argument on an issue does not preserve a
separate legal point on the same issue for review.” Edwards v. Commonwealth, 41 Va. App.
752, 760, 589 S.E.2d 444, 448 (2003) (en banc). “The same argument must have been raised,
with specificity, at trial before it can be considered on appeal.” Correll v. Commonwealth, 42
Va. App. 311, 324, 591 S.E.2d 712, 719 (2004).
Appellant argues that he preserved the issue in his closing argument. He is incorrect.
“[I]n a jury trial, the closing argument is addressed to the jury, not the trial judge, and does not
require the trial judge to rule on the evidence as a matter of law. Only a motion to strike the
evidence accomplishes that objective in a jury trial.” Campbell v. Commonwealth, 12 Va. App.
476, 481, 405 S.E.2d 1, 3 (1991) (en banc). While appellant may have argued that he “rightfully
resisted his illegal arrest with reasonable force” in his closing argument, his failure to raise the
issue in his motion to strike bars him from raising the issue on appeal.
Finally, appellant requests that we consider the issue under the “ends of justice”
exception to Rule 5A:18. We decline to do so because appellant has not demonstrated that a
miscarriage of justice has occurred. See Redman v. Commonwealth, 25 Va. App. 215, 221-22,
487 S.E.2d 269, 272-73 (1997) (holding that in order to show a miscarriage of justice, appellant
must demonstrate that he was convicted for conduct that was not a criminal offense or the record
must affirmatively prove an element of the offense did not occur). The trial court found the
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evidence sufficient and denied appellant’s motion to strike the assault and battery charge. The
jury likewise determined that the evidence was sufficient to find appellant guilty beyond a
reasonable doubt. We find that this conclusion was not “plainly wrong or without evidence to
support it,” and therefore we will not apply the ends of justice exception to Rule 5A:18. See
Davis v. Commonwealth, 39 Va. App. 96, 99-100, 570 S.E.2d 875, 877 (2002) (quoting Dodge
v. Dodge, 2 Va. App. 238, 242, 343 S.E.2d 363, 365 (1986)).
Affirmed.
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