                               COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Kelsey and Haley
Argued at Richmond, Virginia


JONATHAN WAYNE BROWN
                                                             MEMORANDUM OPINION ∗ BY
v.     Record No. 0770-09-2                                  JUDGE JAMES W. HALEY, JR.
                                                                  JANUARY 19, 2010
COMMONWEALTH OF VIRGINIA


                      FROM THE CIRCUIT COURT OF HENRICO COUNTY
                                  Burnett Miller, III, Judge

                 Mufeed W. Said (Mufeed W. Said, P.L.L.C., on brief), for appellant.

                 Kathleen B. Martin, Senior Assistant Attorney General (William C.
                 Mims, Attorney General; Joshua M. Didlake, Assistant Attorney
                 General, on brief), for appellee.


                                        I. INTRODUCTION

       Appealing his conviction for obstruction of justice in violation of Code § 18.2-460(A),

Jonathan Wayne Brown argues the evidence was insufficient to support his conviction. Brown

maintains his forcible removal of his arm from the grip of a police officer arresting him and his

flight from the officer only represented avoidance of the officer not covered by the obstruction

statute. We affirm.

                                        II. BACKGROUND

       In the early morning hours of August 25, 2008, police officer A.W. Downer conducted a

traffic stop of a vehicle driven by Brown. When Downer requested Brown to provide a license

and registration, Brown stated his license was suspended. Brown did state his social security




       ∗
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
number and date of birth. Downer returned to his police vehicle and confirmed the identifying

information given by Brown was correct and that Brown’s license was suspended.

       Downer then decided to arrest Brown. He returned to Brown’s vehicle and told Brown

that he was under arrest. As Downer testified:

               Q. What happened then?

               A. I asked him to exit the vehicle, at which time I went to place
               handcuffs on Mr. Brown. He fled on foot . . . after I had grabbed
               one arm of him, while attempting to place him in custody.

Brown successfully eluded capture at the time.

                                           III. ANALYSIS

       On appeal, we view “the evidence in the light most favorable to the Commonwealth, the

prevailing party in the circuit court, and we accord the Commonwealth the benefit of all

reasonable inferences deducible from the evidence.” Britt v. Commonwealth, 276 Va. 569, 573,

667 S.E.2d 763, 765 (2008). We “will affirm the judgment unless the judgment is plainly wrong

or without evidence to support it.” Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d

584, 586 (2008).

       Code § 18.2-460(A) states that “[i]f any person without just cause knowingly obstructs a

. . . law-enforcement officer . . . in the performance of his duties as such or fails or refuses

without just cause to cease such obstruction when requested to do so by such . . .

law-enforcement officer,” he is guilty of obstruction of justice.

       Recently, our Supreme Court explained the meaning of obstruction of justice:

                       To constitute obstruction of an officer in the performance
               of his duty, it is not necessary that there be an actual or technical
               assault upon the officer, but there must be acts clearly indicating an
               intention on the part of the accused to prevent the officer from
               performing his duty, as to “obstruct” ordinarily implies opposition
               or resistance by direct action and forcible or threatened means. It
               means to obstruct the officer himself not merely to oppose or
               impede the process with which the officer is armed.

                                                 -2-
Jordan v. Commonwealth, 273 Va. 639, 648, 643 S.E.2d 166, 171 (2007) (citation omitted); see

also Atkins v. Commonwealth, 54 Va. App. 340, 343, 678 S.E.2d 834, 835 (2009). Likewise, we

have interpreted this statute to mean that obstruction “does not occur when a person fails to

cooperate fully with an officer or when the person’s conduct merely renders the officer’s task

more difficult but does not impede or prevent the officer from performing that task.” Ruckman

v. Commonwealth, 28 Va. App. 428, 429, 505 S.E.2d 388, 389 (1998). Actions that may

frustrate an officer, but do not “oppose, impede, or resist” him do not constitute obstruction. Id.

at 431, 505 S.E.2d at 390.

       Typically, a person’s attempt to avoid contact with an officer by fleeing or moving away

does not suffice for an obstruction charge. Interpreting section 55-C of the Mapp Prohibition

Law, 1 our Supreme Court long ago stated, albeit in dicta:

                      The fact that the accused sought to escape the officer by
               merely running away was not such an obstruction as the law
               contemplates. While it is the duty of every citizen to submit to
               lawful arrest, yet flight is not such an offense as will make a person
               amenable to the charge of resisting or obstructing an officer who is
               attempting to make an arrest, as there is a broad distinction
               between avoidance and resistance or obstruction.

Jones v. Commonwealth, 141 Va. 471, 478, 126 S.E. 74, 76-77 (1925). 2


       1
         The section at issue stated: “Any person who shall hinder or obstruct any officer of this
State charged with the duty of inspecting baggage for ardent spirits, or the duty of ascertaining
whether any ardent spirits is being illegally transported or stored . . . .” Jones v. Commonwealth,
141 Va. 471, 473, 126 S.E. 74, 75 (1925).
       2
         In Jones, two officers were chasing a car believed to contain ardent spirits. Id. at 476,
126 S.E. at 76. The defendant threw a bag of barley out the car window, erroneously believing
its possession constituted a crime. Id. at 476, 478, 126 S.E. at 76, 76. The bag fell upon the
highway. Id. at 476, 126 S.E. at 76. In reversing, our Supreme Court noted that:

                       The only foundation upon which to base the contention . . .
               that the accused intended to obstruct the officer, is the inference to
               be drawn from the act done. In view of the testimony of the
               accused that his intention of throwing out the bag of barley was not
               to obstruct the officer, but to get rid of evidence which he was

                                                -3-
       Brown’s actions here, however, extended beyond those delineated in Jones. He fled after

being advised of his arrest and after Officer Downer had “grabbed one arm of him.” The act of

pulling his arm from Downer constituted active resistance against a police officer so as to

constitute obstruction of justice. 3 The forcible removal of Brown’s arm “prevent[ed] the officer

from performing his duty” through “resistance by direct action and forcible” conduct. Jordan,

273 Va. at 648, 643 S.E.2d at 171 (citation omitted). Brown did not simply make “the officer’s

task more difficult,” because Brown acted in a direct and forcible manner. Ruckman, 28

Va. App. at 429, 505 S.E.2d at 389. As one commentator has written: “It is clear that a person

who employs force or violence against an officer may be found guilty, under either the common

law or under a statute, ordinance, or regulation, of the offense of resisting or obstructing an




               under the impression would convict him if found in his car, in our
               opinion does not warrant the conviction . . . . As a matter of fact
               the officer was not obstructed in the performance of his duty. The
               momentary swerving of the automobile to avoid the bag of barley
               may or may not have been necessary.

Id. at 479-80, 126 S.E. at 77.
        It was the act of throwing the bag of barley, not fleeing from the officer in his car, which
was the basis of the Commonwealth’s charge, and which was the factual foundation for the ratio
decidendi of the opinion. Accordingly, the remark in Jones about “flight” was not essential to
resolve the Commonwealth’s “sole contention” that “the obstruction charged in the indictment”
arose only from “the act of throwing the bag of barley into the road.” Id. at 478, 126 S.E. at 77.
Dicta generally refers to “that portion of an opinion ‘not essential’ to the disposition in the case”
and “cannot serve as a source of binding authority in American jurisprudence.” Newman v.
Newman, 42 Va. App. 557, 565-66, 593 S.E.2d 533, 537-38 (2004) (en banc) (citation omitted).
        We express no opinion here on whether flight may or may not constitute obstruction, as
we decide the case on other grounds.
       3
         Downer’s testimony, as quoted above, did not actually state Brown used force to
remove his arm. However, at trial, Brown’s counsel characterized Brown’s actions as “to break
free from the grasp of the officer” and during oral argument before the panel of this Court,
Brown’s counsel conceded “it’s certainly a reasonable inference” that Brown used force. A
reasonable fact finder could conclude Brown employed force to break free.

                                                -4-
officer in the performance of his or her duties.” Christopher Hall, Annotation, What Constitutes

Obstructing or Resisting Officer, in Absence of Actual Force, 66 A.L.R.5th 397 § 2 (1999).

       For the foregoing reasons, the judgment of the trial court is affirmed. 4

                                                                                       Affirmed.




       4
         We do not address whether Brown also escaped from the custody of a police officer in
violation of Code § 18.2-478. See Hall v. Commonwealth, ___Va. App. __, ___ S.E.2d ___
(Dec. 22, 2009).

                                               -5-
