Carter v. Commonwealth

LATOYA NICOLE CARTER v. COMMONWEALTH OF VIRGINIA

Record No. 1559-19-3

COURT OF APPEALS OF VIRGINIA

AUGUST 18, 2020

UNPUBLISHED

Present: Chief Judge Decker, Judge Humphreys and Senior Judge Annunziata

Argued by teleconference

MEMORANDUM OPINION^* BY CHIEF JUDGE MARLA GRAFF DECKER

FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG

F. Patrick Yeatts, Judge

Morgan W. Hollister, Assistant Public Defender, for appellant.

Rachel L. Yates, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Latoya Nicole Carter appeals her conviction for assault and battery of a law enforcement officer in violation of Code § 18.2-57(C). On appeal, she contends that the trial court erred when it "ruled that [she] could only raise the issue of the legality of her arrest by a motion to suppress." We hold that this assignment of error does not challenge an actual ruling of the trial court and, therefore, this issue is barred. The appellant also contends that the evidence was insufficient to support her conviction. She argues that she was legally justified in resisting the officer because he was a trespasser whom she was attempting to expel from her home. We hold that this argument fails because she did not order him from her home before committing an assault and battery. Additionally, based on the circumstances, the appellant was not justified in resisting the officer, who was acting within the scope of his public duties. Accordingly, we affirm the conviction.

I. BACKGROUND¹

On January 24, 2018, Officer S.C. Reed of the City of Lynchburg Police Department responded to a call for service at the appellant's home. When the officer arrived in the area, he parked his police car up the street from the house. As soon as he got out of his car he heard screaming and yelling coming from the appellant's home. The entire incident was captured by the officer's body camera, and the relevant footage was played for the trier of fact and admitted into evidence.

When Officer Reed approached the house, he saw two individuals on the front porch and the appellant standing in the doorway of the residence yelling at them. As he neared the house one of the people on the porch, Deshawn Penicks, told Reed that he had lived at the residence for "more than thirty days" and wanted to get "[his] stuff." At the same time, the appellant said Penicks had "put his hands on [her]" and "need[ed] to go." The officer first approached Penicks, who was "a lot calmer" than the appellant. As the officer attempted to speak with Penicks, the appellant continued to yell at them. Officer Reed instructed the appellant to "stop talking," but she refused. The appellant, who was just inside the house, attempted to shut the door. The officer said that he was going to "talk to one person at a time" and prevented the appellant from closing the door by placing his foot over the threshold. He then told the appellant that they were "not done," indicating that that he was still investigating the matter. The appellant replied, "I don't give a fuck if you're not done or not, bye."

The appellant continued to argue with Penicks and the other people on the porch as Officer Reed approached her. She was still just inside the house with the front door partiallyopen. She continued to shout at the officer and again attempted to shut the door on him at least two more times.

Officer Reed pushed through the door and told the appellant not to slam the door on him. The appellant then "got into [Reed's] face" and screamed at him. Reed attempted to handcuff the appellant, but she resisted and began "fighting against [him]." While the officer tried to get the appellant under control so that he could continue to investigate the incident, she elbowed him three times and hit him in the chest and arm.

At the appellant's bench trial, the court found that she committed an assault and battery against a law enforcement officer. The court imposed a sentence of two years, suspending one year and six months.

The appellant filed a motion to set aside the verdict, and the court held a hearing on the motion. She argued that the evidence was insufficient to find her guilty of assault and battery of a law enforcement officer. She asserted that once Officer Reed placed his foot inside the doorway, he was trespassing in her home and her act of shutting the door on his foot was "reasonable force to expel a trespasser." She also maintained that "she was within her legal rights to resist an unlawful detention or arrest."

The trial court disagreed. It specifically noted that "if it's an unlawful detention, then the proper way of dealing with that is a motion to suppress." (Emphases added). The court concluded that the evidence was sufficient to prove assault and battery because the appellant "slammed the door up against [the officer's] foot multiple times to keep him from entering." It noted that "even if [Officer Reed] was illegally detaining her" she still "assault[ed] and batter[ed]" him. Consequently, the court denied the motion to set aside the conviction for assault and battery of a law enforcement officer.

II. ANALYSIS

The appellant raises two assignments of error. She argues that the trial court erred when it ruled that she could only challenge the legality of her arrest through a motion to suppress. She also contends that the evidence was insufficient to prove that she committed an assault and battery of a law enforcement officer.

A. Challenge to the Legality of the Purported Arrest

The appellant's first assignment of error is: "The trial court erred in ruling that [the appellant] could only raise the issue of the legality of her arrest by a motion to suppress." She contends that the trial court committed a procedural error by ruling that she was required to raise this claim in a motion to suppress.

Rule 5A:12(c)(1)(ii) requires that the appellant present "[a]n assignment of error which . . . address[es] the findings, rulings, or failures to rule" of the "trial court . . . from which an appeal is taken." See Coleman v. Commonwealth, 60 Va. App. 618, 621 (2012) (dismissing the appeal because the assignment of error did not challenge a finding or ruling of the trial court); see also Parker v. Carilion Clinic, 296 Va. 319, 332 (2018) (dismissing an assignment of error under Rule 5:17(c)(1)(iii), the corollary to the Court of Appeals rule, for failure of the appellant to address in the assignment of error an actual ruling of the circuit court). It is also well established that this Court is "limited to reviewing the assignments of error presented by the litigant" and cannot "consider issues touched upon by the appellant's argument but not encompassed by h[er] assignment of error." Banks v. Commonwealth, 67 Va. App. 273, 289-90 (2017).

Here, the trial court ruled that "the proper way of dealing with [an unlawful detention] is a motion to suppress." (Emphasis added). The court explained that the issue would be barred "even if [the officer] was illegally detaining [the appellant]" because the potential problem withthe detention was how the officer "enter[ed]" the appellant's property and the appellant had not raised that issue in a motion to suppress.² (Emphasis added). Further, the court nevertheless specifically discussed the possible unlawful detention that occurred in the appellant's case and was silent regarding a possible illegal arrest.³ Significantly, the trial court did not rule that the appellant could raise the legality of her arrest only in a motion to suppress.

The actual specific ruling of the court addressed only the appellant's choice to forego a motion to suppress evidence obtained pursuant to the officer's alleged improper entry into her home. The court did not rule that the appellant "could only raise the issue of the legality of her arrest by a motion to suppress." Notably, arrests and detentions are very different concepts. See Commonwealth v. Hill, 264 Va. 541, 547 (2002) ("In our present justice system, the different consequences that attend an arrest and an investigative detention are manifest."). Each is a distinct legal term of art.⁴ While we recognize that the trial court's ruling in this case may be considered closely related to the purported ruling challenged by the appellant, we cannot reframe her assignment of error to bring the court's actual ruling within our purview. See Banks, 67Va. App. at 289-90 (noting that an appellate court is "limited to reviewing the assignments of error presented by the litigant" and cannot "consider issues touched upon by the appellant's argument but not encompassed by h[er] assignment of error"). Accordingly, we do not reach the merits of the appellant's first assignment of error. See Rule 5A:12(c)(1)(ii); Coleman, 60 Va. App. at 621.

B. Sufficiency of the Evidence

The appellant challenges the sufficiency of the evidence supporting her conviction for assault and battery of a law enforcement officer. She suggests three bases in support of her challenge. First, the appellant argues that her physical acts of violence toward the officer were defensible because she was using reasonable force to expel a trespasser. Second, she maintains that because Reed was not acting within the scope of his law enforcement duties at the time, she could not be guilty of assault and battery of a law enforcement officer. Third, she suggests that she was justified in striking the officer because she was resisting an illegal arrest.⁵

When reviewing a challenge to the sufficiency of the evidence, the judgment of the trial court is presumed correct, and it will be set aside only if it "is plainly wrong or without evidence to support it." Code § 8.01-680; Pijor v. Commonwealth, 294 Va. 502, 512 (2017). Given that presumption, this Court "does not 'ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.'" Williams v. Commonwealth, 278 Va. 190, 193(2009) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). "Rather, the...