Kevin Gerald Tucker v. CW, City of Virginia Beach

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Frank and Clements
Argued at Richmond, Virginia
KEVIN GERALD TUCKER
MEMORANDUM OPINION * BY
v. Record No. 1697-00-1 JUDGE ROBERT P. FRANK
JULY 10, 2001
COMMONWEALTH OF VIRGINIA AND
CITY OF VIRGINIA BEACH
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Edward W. Hanson, Jr., Judge
Annette Miller (Office of the Public
Defender, on brief), for appellant.
Megan C.Z. Capoldo, Assistant Commonwealth's
Attorney (Harvey L. Bryant, III,
Commonwealth's Attorney, on brief), for
appellee.
Kevin Gerald Tucker (appellant) was convicted in a bench
trial of assault and battery, in violation of Code § 18.2-57, and
disturbing the peace, in violation of Virginia Beach City Code
§ 23-10. 1 On appeal, appellant contends the trial court erred in
finding the evidence sufficient to convict him of the disturbing
the peace charge. Finding no error, we affirm.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
Appellant challenges only the disturbing the peace
conviction.
I. BACKGROUND
"'On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom.'" Archer v. Commonwealth,
26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation omitted).
So viewed, the evidence proved three police officers
responded to a 911 call at appellant's home. When they arrived,
they encountered a panicked woman fleeing the house. Officer J.T.
Randall approached the house and asked appellant to come outside
to talk. Appellant opened the door screaming excitedly, waving a
knife in front of him.
Officer Randall told appellant to drop the knife "because he
still had the knife straight out and was moving it around
quickly." Appellant continued in his excited state, screaming,
making irrational statements and holding the knife out, bringing
it up and down. Officer Randall testified, "I got a distance
between myself and [appellant], and I pleaded with him to drop the
knife, and [appellant] kept stating to me that he was eating a
steak." Officer Kelley observed appellant being very loud and
boisterous and could hear him yelling as soon as he exited his
patrol car. Appellant calmed down somewhat, but "[h]e kept
holding [the knife] out, putting it down," and Officer Randall had
to knock the knife out of appellant's hand. Officer Randall
stated, "He was not willing to drop the knife voluntarily, so I
had to physically take the knife away from him and take it out of
- 2 -
his hand." Officer Randall attempted to place appellant under
arrest for disturbing the peace, but appellant continued to yell
very loudly, and Officers Fortin and Kelley had to assist in the
arrest.
Once they had appellant in custody, Officers Fortin and
Kelley began to walk appellant toward the curb while Officer
Randall retrieved the police car. During that walk, appellant
fought with the officers and kicked Officer Fortin, striking her
on her upper left thigh. When questioned, appellant stated he had
threatened Officer Randall because he was "pissed" that he had
spilled coffee on himself and that he had the knife because he had
a temper problem. When asked why he kicked Officer Fortin,
appellant stated he has a real bad temper and that he was sorry.
II. ANALYSIS
Appellant contends that because police officers routinely
respond to situations where the public's peace is being disturbed,
he should not be convicted of disturbing the peace of a law
enforcement officer. Appellant argues, "To charge someone with a
crime for what amounts to a commonplace element associated with
their jobs does not form an adequate basis of a disturbing the
peace charge." Appellant cites no authority to support his
contention, nor have we found any.
"It shall be unlawful and a Class 1 misdemeanor for any
person to disturb the peace of others by violent, tumultuous,
offensive, or obstreperous conduct or by threatening, challenging
- 3 -
to fight, assaulting, fighting or striking another." City of
Virginia Beach Code § 23-10.
"The plain, obvious, and rational meaning of a statute is
always preferred to any curious, narrow or strained construction;
a statute should never be construed so that it leads to absurd
results." Branch v. Commonwealth, 14 Va. App. 836, 839, 419
S.E.2d 422, 424 (1992) (citations omitted).
"'Where a statute is unambiguous, the plain meaning is to be
accepted without resort to the rules of statutory
interpretation.'" Frazier v. Commonwealth, Dep't. of Social
Servs., Div. of Child Support Enforcement, ex rel. Sandridge, 27
Va. App. 131, 134, 497 S.E.2d 879, 880 (1998) (citation omitted).
Nothing in the City Code exempts law enforcement officers
from protection from threatening or assaultive behavior. It is
inconceivable that such should be legislative intent.
Appellant's behavior did not consist merely of offensive,
profane or uncivil speech.
"[T]he First Amendment protects a
significant amount of verbal criticism and
challenge directed at police officers.
'Speech is often provocative and
challenging . . . . [But it] is nevertheless
protected against censorship or punishment,
unless shown likely to produce a clear and
present danger of a serious substantive evil
that rises far above public inconvenience,
annoyance, or unrest.'"
- 4 -
Ford v. City of Newport News, 23 Va. App. 137, 143, 474 S.E.2d
848, 851 (1996) (quoting City of Houston v. Hill, 482 U.S. 451,
461 (1987) (citation omitted)).2
In Ford, we wrote:
The words uttered by the defendant,
however offensive or rude, do not establish
disorderly conduct. Although Officer Nowak
testified that the defendant "[threw] his
arms about in the air" and was "loud and
boisterous," he made no threatening remarks,
uttered no words that would reasonably incite
a breach of the peace, or made no threatening
movements toward the officers. While the
defendant's remarks lacked civility and were
impolite, loud, and persistent protestations
about his treatment, his act of throwing his
arms in the air could in no reasonable way
cause or incite the officers to violence.
There is simply no evidence in the record to
support a reasonable belief that the
defendant's conduct would cause a reasonable
officer to respond with physical force or
violence or that the officers considered the
defendant's throwing his arms in the air to
be an assault.
Id. at 144, 474 S.E.2d at 851.
In Marttila v. City of Lynchburg, 33 Va. App. 592, 535 S.E.2d
693 (2000), we interpreted Ford:
In our subsequent decision in Ford, 23
Va. App. at 144, 474 S.E.2d at 851, we quoted
extensively from Hill, recognizing, at least
implicitly, its holding that police officers
are, in fact, required to exercise a higher
degree of restraint when confronted by
language or conduct which is offensive but
does not have a direct tendency to cause acts
2
While Ford involves the sufficiency of a disorderly
conduct conviction, its analysis is instructive as to
appellant's argument that law enforcement officers cannot be the
victims of breach of peace violations.
- 5 -
of violence by the person to whom,
individually, the language or conduct is
directed. Applying that standard to Ford's
conviction for disorderly conduct, we held as
follows: "There is simply no evidence in the
record to support the reasonable belief that
the defendant's conduct would cause a
reasonable officer to respond with physical
force or violence or that the officers
considered the defendant's throwing his arms
in the air to be an assault." Id. (emphasis
added). Thus, our decision in Ford
recognized and applied Hill's holding that
the First Amendment requires properly trained
police officers to exercise a higher degree
of restraint when confronted by disorderly
conduct and abusive language.
Id. at 601 n.5, 535 S.E.2d at 698 n.5.
Here, appellant, armed with a knife, waved it up and down and
held it straight out, forcing the officer to knock the knife out
of his hand.
"A breach of the peace is an act of violence or an act likely
to produce violence." Taylor v. Commonwealth, 11 Va. App. 649,
653, 400 S.E.2d 794, 796 (1991) (citations omitted).
At oral argument, the City conceded that appellant did not
assault Officer Randall, but that his violent, tumultuous,
offensive or obstreperous conduct "prompted this officer's
physical response to take the knife from appellant." We agree.
Obstreperous conduct is that which is resistant to "control
or restraint . . . with a show of noisy disorder." Webster's
Third New International Dictionary 1559 (1993).
The evidence was sufficient to prove that appellant disturbed
the peace by his conduct that forced the officer to use physical
- 6 -
force. Finding no error, we affirm appellant's conviction of
disturbing the peace.
Affirmed.
- 7 -
Benton, J., dissenting.
Kevin Gerald Tucker was convicted of disturbing the peace
of others in violation of the City's ordinance, which provides
as follows:
It shall be unlawful and a Class 1
misdemeanor for any person to disturb the
peace of others by violent, tumultuous,
offensive or obstreperous conduct or by
threatening, challenging to fight,
assaulting, fighting or striking another.
City of Virginia Beach Ordinance § 23-10. The City argues that
the conviction was properly based on Tucker's behavior because
he was threatening, violent, offensive and obstreperous.
The evidence proved that a police officer spoke to a woman
who ran from Tucker's house in a "state . . . of panic." When
the officer "couldn't verify anything of the situation at hand,"
he went to Tucker's house and "banged on the door with [his]
flashlight." As Tucker came to the door, the officer asked him
to come outside. The officer testified that the following
occurred:
Mr. Tucker came outside and was very
excited, was yelling, screaming. He was
very disheveled, had a lot of -- I don't
know exactly what it was, but blotches on
his shirt and on his pants and in his hands.
Q: Was he yelling anything in particular?
A: What I can recall, he was just very
excited. He was screaming. I don't know
exactly what he was screaming at. At first
nothing was directed at me. He was just
screaming. I would assume that it was about
the young lady that ran.
- 8 -
The officer testified that when he asked Tucker to drop the
steak knife Tucker was holding, Tucker "kept stating" that he
had been eating a steak. The officer further testified as
follows:
A: And he was screaming loudly. I really
couldn't decide what he was screaming at,
but he was just excited, kept bringing the
knife out. He kept saying no as if he was
trying to convince me of something, just
making irrational statements. I really
don't know what he was trying to tell me.
He kept holding it out, putting it down.
Q: And what did you do in reaction to this?
A: At this time I got Mr. Tucker calmed
down somewhat. He was still trying to make
statements to me. I didn't know what he was
trying to tell me, and at that point he put
the knife out. I knocked it out of his
hand. Then I tried to place him under
arrest.
Tucker's behavior falls into two broad categories. First,
he possessed a knife openly in the officer's presence. The City
concedes, however, that Tucker's possession of the knife under
the circumstances of this case did not amount to an assault on
the officer. 3 Furthermore, it does not fulfill the other
elements of the ordinance. The officer testified that Tucker
explained his conduct at the time by stating that he had been
eating a steak. By the City's own evidence, Tucker was confused
3
Tucker was convicted of disturbing the peace and simple
assault and battery. The assault and battery conviction was not
challenged, but it was based on Tucker's struggle after he was
arrested.
- 9 -
and distraught and gave no indication that he intended violence
against the officer with the knife. From that evidence, it is
more likely that Tucker did not realize he had the knife or did
not realize its danger. The evidence tends to prove the officer
knocked the knife out of Tucker's hand as a precaution against
accident.
Second, Tucker spoke loudly to the officer. Such speech,
however, carries constitutional protection. "'Speech is often
provocative and challenging . . . . [But it] is nevertheless
protected against . . . punishment, unless shown likely to
produce a clear and present danger of serious substantive evil
that rises far above public inconvenience, annoyance, or
unrest.'" Houston v. Hill, 482 U.S. 451, 461 (1987) (quoting
Terminiello v. Chicago, 337 U.S. 1, 4 (1949)). See also Lewis
v. City of New Orleans, 415 U.S. 130 (1973).
In Ford v. City of Newport News, 23 Va. App. 137, 474
S.E.2d 848 (1996), we held as follows:
The words uttered by the defendant, however
offensive or rude, do not establish
disorderly conduct. Although [the officer]
testified that the defendant "[threw] his
arms about in the air" and was "loud and
boisterous," he made no threatening remarks,
uttered no words that would reasonably
incite a breach of the peace, or made no
threatening movements toward the officers.
While the defendant's remarks lacked
civility and were impolite, loud, and
persistent protestations about his
treatment, his act of throwing his arms in
the air could in no reasonable way cause or
incite the officers to violence. There is
- 10 -
simply no evidence in the record to support
a reasonable belief that the defendant's
conduct would cause a reasonable officer to
respond with physical force or violence or
that the officers considered the defendant's
throwing his arms in the air to be an
assault.
Id. at 144, 474 S.E.2d at 851.
The evidence in this case is similar to the evidence in
Ford. It was insufficient to prove Tucker committed any "act of
violence or an act likely to produce violence" either by
gestures or words. Taylor v. Commonwealth, 11 Va. App. 649,
653, 400 S.E.2d 794, 796 (1991). I would hold, therefore, that
the evidence simply failed to prove Tucker's conduct fell within
the prohibition of the ordinance. Thus, I would reverse the
conviction for disturbing the peace.
- 11 -