Gilberto DeJesus, s/k/a Gilberto DeJesus, Jr. v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Petty and McCullough
UNPUBLISHED
Argued at Richmond, Virginia
GILBERTO DEJESUS, S/K/A
GILBERTO DEJESUS, JR.
MEMORANDUM OPINION* BY
v. Record No. 1055-12-2 JUDGE LARRY G. ELDER
JULY 2, 2013
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Bradley B. Cavedo, Judge
Joan J. Burroughs, Assistant Public Defender (Office of the Public
Defender, on brief), for appellant.
Lauren C. Campbell, Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
Gilberto DeJesus (appellant) challenges his convictions for assault and battery of a law
enforcement officer, in violation of Code § 18.2-57(C). On appeal, he argues that the trial court
erred in its instructions to the jury and in holding his arrest was lawful. For the reasons that
follow, we affirm.
I.
At trial, the Commonwealth presented evidence that appellant arrived at Loretta
Lightfoot’s house and asked to come inside. When Lightfoot refused, appellant banged and
kicked the back door with sufficient violence to force entry. After entering the home, appellant
bumped into Lightfoot’s daughter’s boyfriend as he passed him in the hallway.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Lightfoot called the police. Officer Rodriguez was dispatched to Lightfoot’s house in
response to a report that a breaking and entering was in progress. When he arrived, the door was
open and he saw two males “scuffling.”
Appellant, one of those two males, claimed he lived at the house. Rodriguez saw the
damage to the door and wall indicating someone had forced entry. Lightfoot informed
Rodriguez that appellant was her ex-boyfriend and did not live there. She showed Rodriguez the
lease, and it did not list appellant’s name as a tenant. Lightfoot’s daughter’s boyfriend told
Rodriguez that appellant pushed him when he entered the house.
Rodriguez arrested appellant for breaking and entering, placing him in the back of a
police car. Once in the car, appellant kicked, hit, and screamed. Rodriguez decided to transport
him in a patrol wagon to the jail. When the police officers transferred appellant to the patrol
wagon, appellant head-butted one of the police officers and pushed another. He also spit on both
of the officers.
Appellant did not present any evidence. However, Lightfoot testified that she was
appellant’s girlfriend at the time of the arrest. She additionally testified that at the time of the
arrest, appellant had lived with her for approximately one month and kept personal belongings in
her home. She explained that she had called the police because she was mad at appellant at the
time and did not want him in her house.
At the conclusion of all the evidence, appellant proffered a jury instruction that read: “A
battery is the willful touching of another, without legal excuse or justification, done in an angry,
rude, insulting or vengeful manner.”
The trial court denied the instruction. The trial court instead instructed the jury: “Any
touching in anger, without lawful provocation, however slight, including spitting on a person, is
sufficient to support a battery conviction.”
-2-
Appellant additionally sought to instruct the jury on an unlawful arrest and his right to
resist an unlawful arrest. Appellant argued that whether the police had probable cause to arrest
him was an issue for the jury. The trial court ruled that the arrest was supported by probable
cause as a matter of law and did not submit the matter to the jury.
The jury found appellant guilty of destruction of property and two counts of assault and
battery of a law enforcement officer. The jury found appellant not guilty of statutory burglary.
Appellant was sentenced to four years’ incarceration and fined $500.
II.
Appellant appeals his convictions for assault and battery of a police officer. He argues
that the jury instruction defining “battery” unduly emphasized a piece of the Commonwealth’s
evidence. Appellant further contends that the question of whether probable cause existed to
arrest appellant was a question of fact to be decided by the jury. Appellant alternatively argues
that even if the issue of probable cause was one of law, the trial court erred in not giving the
related instructions to the jury because they were supported by his theory of the case. Last,
appellant contends that the evidence did not support the trial court’s holding that probable cause
existed to arrest him.
Battery Instruction
Appellant contends that the jury instruction explaining what types of touching were
sufficient to support a battery conviction singled out for emphasis the evidence of spitting and
may have misled the jury. The Commonwealth responds that the instruction was proper because
it correctly stated the law and did not suggest the credibility or weight of any specific evidence.
The matter of granting and denying jury instructions rests within the discretion of the trial
court. Cooper v. Commonwealth, 277 Va. 377, 381, 673 S.E.2d 185, 187 (2009). However,
[w]hen a trial judge instructs the jury in the law, he or she may not
“single out for emphasis a part of the evidence tending to establish
-3-
a particular fact.” Woods v. Commonwealth, 171 Va. 543, 548,
199 S.E. 465, 467 (1938)). The danger of such emphasis is that it
gives undue prominence by the trial judge to the highlighted
evidence and may mislead the jury. On the other hand,
instructions should relate to the specific evidence of the case . . . .
Terry v. Commonwealth, 5 Va. App. 167, 170, 360 S.E.2d 880, 882 (1987) (citations omitted).
“Both the Commonwealth and the defendant are entitled to appropriate instructions to the jury of
the law applicable to each version of the case, provided such instructions are based upon the
evidence adduced.” Simms v. Commonwealth, 2 Va. App. 614, 616, 346 S.E.2d 734, 735
(1986). “When granted instructions fully and fairly cover a principle of law, a trial court does
not abuse its discretion in refusing another instruction relating to the same legal principle.”
Stockton v. Commonwealth, 227 Va. 124, 145, 314 S.E.2d 371, 384 (1984).
Again, the trial court instructed the jury: “Any touching in anger, without lawful
provocation, however slight, including spitting on a person, is sufficient to support a battery
conviction.” As in Terry, the instruction
did not suggest that specific evidence impelled any particular
finding. . . . The jury was free to draw all reasonable and
permissible inferences from the evidence without any suggestion in
the jury instructions as to the conclusion. The instructions did not
suggest the credibility or weight which should be given any
specific evidence adduced at trial. . . . Therefore, . . . the
instructions did not impermissibly highlight any of the evidence to
the exclusion of other evidence.
5 Va. App. at 171, 360 S.E.2d at 882.
Further, the given instruction fully and fairly explained what types of touching can
constitute a battery. See, e.g., Gilbert v. Commonwealth, 45 Va. App. 67, 70-71, 608 S.E.2d
509, 511 (2005) (explaining battery can consist of any touching of, including spitting on, another
person done in anger). Therefore, the instruction was proper and the trial court did not abuse its
discretion in denying appellant’s proposed instruction relating to the same legal principle.
-4-
Legality of the Arrest
Appellant argues that the trial court erred in denying his proffered jury instructions
regarding the question of whether probable cause existed to arrest him, because it was a question
of fact for the jury to decide. The Commonwealth contends that the trial court properly ruled on
probable cause because the facts were not in dispute.
Code § 18.2-57(C) provides that “any person [who] commits an assault or an assault and
battery against . . . a law enforcement officer . . . is guilty of a Class 6 felony.” However,
“[u]nder the common law, a citizen generally is permitted to use reasonable force to resist an
illegal arrest.” Commonwealth v. Hill, 264 Va. 541, 546, 570 S.E.2d 805, 808 (2002).
“‘The test of constitutional validity [of a warrantless arrest] is whether at the moment of
the arrest the arresting officer had knowledge of sufficient facts and circumstances to warrant a
reasonable man in believing that an offense has been committed.’” Ross v. Commonwealth, 35
Va. App. 103, 106, 542 S.E.2d 819, 820 (2001) (quoting DePriest v. Commonwealth, 4 Va. App.
577, 583-84, 359 S.E.2d 540, 543 (1987)). Sufficient facts and circumstances are referred to as
“probable cause.” See, e.g., Purdie v. Commonwealth, 36 Va. App. 178, 185, 549 S.E.2d 33, 37
(2001).
Typically, evaluating the lawfulness of an arrest presents a mixed question of law and
fact. Smith v. Commonwealth, 30 Va. App. 737, 740, 519 S.E.2d 831, 832 (1999). Where the
facts are undisputed, however, only a question of law remains. See Bristol v. Commonwealth,
272 Va. 568, 573, 636 S.E.2d 460, 463 (2006) (reviewing “de novo the issue of law whether the
undisputed facts . . . establish[ed] that the officers effectuated an arrest”). Because the facts
leading to the arrest were undisputed, the only issue left to be determined was the legal question
of whether probable cause supported the arrest.
-5-
Juries decide factual questions, not legal ones. “Where the facts are undisputed it is a
question of law, and should be determined by the court . . . .” Blakely v. Greene, 24 F.2d 676,
681 (4th Cir. 1928). Therefore, the trial court appropriately resolved the remaining legal
question of whether probable cause supported appellant’s arrest.
Appellant alternatively argues that the trial court erred in denying his proposed jury
instructions regarding his right to resist an unlawful arrest because they were supported by his
theory of the case. The Commonwealth argues that the trial court properly refused the proffered
instructions because no evidence supported appellant’s theory of the case.
“[A]n instruction is proper only if supported by more than a scintilla of evidence.”
Commonwealth v. Sands, 262 Va. 724, 729, 553 S.E.2d 733, 736 (2001). In reviewing the trial
court’s refusal to grant appellant’s proffered jury instructions, we view the evidence in the light
most favorable to appellant. See, e.g., Cooper, 277 Va. at 381, 673 S.E.2d at 187.
When Officer Rodriguez arrived at Lightfoot’s house, Lightfoot informed him that
appellant was her ex-boyfriend and did not live there. Rodriguez saw appellant inside the house
and observed damage to the door where someone forced entry. These circumstances were
sufficient for a police officer to believe that appellant had committed statutory burglary, in
violation of Code § 18.2-91. Although appellant told Rodriguez that he lived there, the test for a
lawful arrest is whether there was “‘a probability or substantial chance of criminal activity, not
an actual showing of such activity.’” Ross, 35 Va. App. at 107, 542 S.E.2d at 821 (quoting Ford
v. City of Newport News, 23 Va. App. 137, 143-44, 474 S.E.2d 848, 851 (1996)).
Because the record does not contain evidence supporting appellant’s theory of the case
that his arrest was unlawful, the trial court properly refused his proposed instructions relating to
the legality of the arrest.
-6-
Last, appellant contends that the trial court erred in holding that probable cause existed to
arrest him. Appellant argues that the evidence did not support the ruling because Lightfoot had
not told him he was no longer welcome in her home. The Commonwealth responds that the
evidence amply supported the trial court’s holding that probable cause supported the arrest.
Having concluded that the evidence established that probable cause supported the arrest,
we do not need to address this issue further. We note only that appellant’s reliance on Mayo v.
Commonwealth, No. 0293-97-2 (Va. Ct. App. Nov. 25, 1997), is misplaced, because whether the
evidence is sufficient to support a statutory burglary conviction is a separate question from
whether probable cause exists to arrest an individual for the offense. See Ross, 35 Va. App. at
107, 542 S.E.2d at 821.
III.
Because the trial court did not abuse its discretion in instructing the jury or err in holding
appellant’s arrest was lawful, we affirm the convictions.
Affirmed.
-7-