Latoya Nicole Carter v. Commonwealth of Virginia

LYNCHBURG, VA - Assault and battery of a law enforcement officer











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 partially

1

In accordance with familiar principles of appellate review, we recite the facts in the

light most favorable to the Commonwealth, as the prevailing party at trial. See Anaman v.

Commonwealth, 64 Va. App. 379, 383 (2015).

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open. 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.

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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 with

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the 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, 67

2 The court went on to explain that regardless of what side of the door the appellant was

on, she had “assault[ed]” the officer when he had “attempt[ed] to detain her.” (Emphasis added).

3 When the court explained its decision to find the appellant guilty it focused on the

appellant’s efforts to resist a “temporary detention.” However, the trial court also commented

that the appellant’s actions were unjustified with regard to a legal arrest. It explained that the

appellant’s resistance was not justified “even [in] an arrest” because that “arrest [was] for

disorderly conduct in the manner in which [the appellant] w[as] conducting [her]self.” The

explanation suggests that the court fully understood and considered the appellant’s defense that

she was resisting an illegal arrest, and simply rejected it because it found that even if Officer

Reed’s actions amounted to an arrest it was supported by probable cause.

4 The Supreme Court explained in Hill that a detention is a “brief intrusion on an

individual’s liberty” and that “the provocation resulting from an illegal detention is far less

significant than the provocation that attends an illegal arrest.” 264 Va. at 548. Therefore, the

Court reasoned that a “recognition of a right to resist an unlawful detention would not advance

the rationale supporting the common law right to use reasonable force to resist an unlawful

arrest, but would only serve to increase the danger of violence inherent in such detentions.” Id.

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Va. 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

5 We note that in her reply brief the appellant argues that her interaction with Officer

Reed was a consensual encounter at the time that she first slammed his foot in the door. This

argument was not raised in the trial court and therefore we do not consider it on appeal. See

Rule 5A:18 (“No 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.”); see also Bethea v.

Commonwealth, 297 Va. 730, 743 (2019) (“Specificity and timeliness undergird the

contemporaneous-objection rule . . . ‘so that the trial judge . . . know[s] the particular point being

made in time to do something about it.’” (quoting Dickerson v. Commonwealth, 58 Va. App.

351, 356 (2011))).

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(2009) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). “Rather, the relevant

question is whether ‘any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.’” Id. (quoting Jackson, 443 U.S. at 319).

When this Court considers a challenge to the sufficiency of the evidence, we review “the

evidence in the light most favorable to the Commonwealth, ‘as the prevailing party in the trial

court.’” Kelley v. Commonwealth, 69 Va. App. 617, 624 (2019) (quoting Hamilton v.

Commonwealth, 279 Va. 94, 103 (2010)). Viewing the evidence in this light “requires us to

‘discard the evidence of the accused in conflict with that of the Commonwealth, and regard as

true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn

therefrom.’” Commonwealth v. Perkins, 295 Va. 323, 323-24 (2018) (quoting Vasquez v.

Commonwealth, 291 Va. 232, 236 (2016)).

Further, the appellate court “presume[s]—even in the absence of specific factual

findings—that the trial court resolved all factual ambiguities or inconsistencies in the evidence in

favor of the prevailing party and gave that party the benefit of all reasonably debatable

inferences from the evidence.” Hill v. Commonwealth, 297 Va. 804, 808 (2019); cf. Bowman v.

Commonwealth, 290 Va. 492, 500 n.8 (2015) (noting that when an appellate court is “faced with

a record of historical facts that supports conflicting inferences” it “must presume” that the trier of

fact resolved those conflicts in favor of the prevailing party, and “must defer to that resolution”

(quoting Jackson, 443 U.S. at 326)).

The appellant’s first argument is that she had a common law right to expel Officer Reed

from her home because she alleges that he was not engaged in his public duties and thus was

trespassing in her home. However, the common law right of a landowner to expel a trespasser is

contingent on the landowner ordering the trespasser to leave her property. See Pike v.

Commonwealth, 24 Va. App. 373, 375 (1997) (noting the long recognized “right of a landowner

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to order a trespasser to leave, and if the trespasser refuses to go, to employ proper force to expel

him” (citing Montgomery v. Commonwealth, 99 Va. 833 (1901))).

Regardless of whether Reed acted lawfully when he initially crossed the threshold of

appellant’s front door to stop her from closing it, she battered him before telling him to leave.

6

Consequently, the appellant’s actions could not constitute a legitimate exercise of her common

law right to expel a trespasser, and this argument must fail at its inception.7

Second, the appellant contends that Officer Reed was not acting within the scope of his

law enforcement duties at the time she assaulted him and therefore she could not be guilty of

assault and battery of a law enforcement officer. She notes that “[i]n order for [her] to be

convicted of assault and battery of [the officer],” the Commonwealth was required to “prove

every element of the offense, including that [the officer] was engaged in the performance of his

public duties.” See Code § 18.2-57(C); Oulds v. Commonwealth, 260 Va. 210, 214 (2000). We

hold that the record shows that the officer was clearly engaged in the performance of his duties at

the time of the offense.

Officer Reed was dispatched to the appellant’s home based on a 911 call. When the

officer arrived at her home, he encountered a disorderly situation involving the appellant, who

was just inside her open door, and other people on her front porch. Reed, who immediately

witnessed disorderly behavior, also was confronted with two different versions of what preceded

the disturbance as he assessed the situation. He attempted to determine whether a crime had

6 Even assuming that the appellant’s statement, “I don’t give a fuck if you’re not done or

not, bye,” could be construed as an order to leave her property, that declaration was made after

the appellant had slammed the officer’s foot in the door the first time. Further, the appellant

made the statement after Officer Reed had communicated that she was not free to leave.

7 The Commonwealth argues that the appellant’s use of force to expel the officer from

her home was “unnecessary, disproportionate, and thus patently unreasonable.” However, since

we hold that the appellant’s actions were not a legitimate exercise of her common law right to

expel a trespasser, we do not address this argument.

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been committed at the appellant’s residence and, if so, the nature of the crime. The situation

deteriorated during the officer’s investigation because of the appellant’s unruly and belligerent

behavior. Instead of cooperating with the officer, the appellant attempted to shut the door on him

and retreat into her home. Reed’s effort to prevent the appellant from retreating into her home so

that he could investigate the incident was entirely reasonable given the circumstances. See

Thomas v. Commonwealth, 16 Va. App. 851, 857 (1993) (“[B]rief, complete deprivations of a

suspect’s liberty . . . ‘do not convert a[n investigative detention] into an arrest so long as the

methods of restraint used are reasonable to the circumstances.’” (quoting United States v.

Crittendon, 883 F.2d 326, 329 (4th Cir. 1989))), adopted upon reh’g en banc, 18 Va. App. 454,

455 (1994). Based on the facts of this case, we conclude that Officer Reed was acting within the

scope of his public duties as he attempted to investigate the basis for the 911 call. See Code

§ 15.2-1704(A) (providing that the police are “responsible for the prevention and detection of

crime, the apprehension of criminals, the safeguard of life and property, the preservation of

peace and the enforcement of state and local laws, regulations, and ordinances”).

The appellant’s third contention is that she had the right to resist an unlawful arrest.

However, the facts of the case show that the appellant battered Officer Reed by slamming his

foot in the door multiple times before he seized her and placed her in handcuffs. Cf. Adams v.

Commonwealth, 33 Va. App. 463, 469, 471 (2000) (noting that even a slight touching of another

may constitute a battery under the law and holding that the evidence was sufficient to support a

conviction of assault and battery of a law enforcement officer where Adams shined a laser

pointer at an officer’s eye). We hold that the appellant’s acts of assault and battery against the

officer, meant to facilitate her attempted retreat from him, were efforts to resist an investigative

detention, not an arrest. See Hill, 264 Va. at 548. The appellant slammed the door on the

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officer’s foot, committing a battery while he was attempting to detain her in order to question her

about the incident he was dispatched to investigate. See generally Thomas, 16 Va. App. at

857-58 (noting that a detention was not unreasonable where a law enforcement officer

“diligently pursued a means of investigation that was likely to confirm or dispel [his] suspicions

quickly, during which time it was necessary to detain the defendant” (quoting DePriest v.

Commonwealth, 4 Va. App. 577, 587 (1987))). The right to resist an illegal arrest does not

extend to an individual who is merely detained. Hill, 264 Va. at 548.

8 Since the appellant was

simply detained rather than arrested, any right to resist an unlawful arrest is irrelevant to our

analysis.

In this case, the appellant admits to committing physical acts of violence against Officer

Reed but claims that her actions were justified. We hold that her proffered theories of innocence

are inapplicable in this case. Accordingly, the trial court did not err in finding that the evidence

was sufficient to convict her of assault and battery of a law enforcement officer.

Affirmed