                    COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Senior Judge Cole
Argued at Richmond, Virginia


JASON ALAN MASON
                                           MEMORANDUM OPINION * BY
v.   Record No. 1189-98-2               JUDGE JERE M. H. WILLIS, JR.
                                                AUGUST 3, 1999
COMMONWEALTH OF VIRGINIA


       FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG
                    John W. Scott, Jr., Judge

            Elizabeth Virginia Killeen, Assistant Public
            Defender (Office of the Public Defender, on
            brief), for appellant.

            Donald E. Jeffrey, III, Assistant Attorney
            General (Mark L. Earley, Attorney General, on
            brief), for appellee.


     On appeal, Jason Alan Mason contends that the evidence is

insufficient to support his conviction of obstruction of justice

and that the trial court erred in denying his motion to strike the

evidence.   We disagree and affirm the judgment of the trial court.

     Code § 18.2-460(A) provides:

            If any person without just cause knowingly
            obstructs . . . any law-enforcement officer
            in the performance of his duties as such
            . . . , he shall be guilty of a Class 2
            misdemeanor.

On appeal of a criminal conviction, we view the evidence "in the

light most favorable to the Commonwealth, granting to it all

     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
reasonable inferences fairly deducible therefrom."    Brown v.

Commonwealth, 27 Va. App. 111, 113, 497 S.E.2d 527, 528 (1998).

       On the evening of October 27, 1997, Officers Moore and

Gentry of the Fredericksburg Police Department responded to a

domestic complaint at 1612 Charles Street.   At that location, a

citizen complained that two men in the front yard of the house

at 1700 Charles Street had threatened him and that a man wearing

a leather jacket had made a gesture suggesting that he had a

gun.   The officers approached 1700 Charles Street to investigate

the complaint and entered the unfenced front yard. In the yard

were several men, including Mason and another man, who was

wearing a leather jacket.   The officers asked the man wearing

the leather jacket to approach so that they could talk to him.

Mason became belligerent, demanding that the officers leave

"his" yard.   His demands were put forth in such a loud and

obstreperous manner that the officers were unable to communicate

with the man wearing the leather jacket.   After warning Mason

several times to cease interfering with their effort to question

the man wearing the leather jacket, the officers arrested him

for obstructing justice.

       On appeal, Mason contends that 1700 Charles Street was his

home, that the officers had no right to come onto his yard, and

that he had the right to demand that they leave.   At trial,

Mason testified that he had asserted no ownership interest in

the property and that he had not demanded that the officers

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leave.    He testified that he had simply advised the other men,

who were his friends, not to leave the yard, lest they be

arrested for drunk in public.

        The Commonwealth argues that Mason's contention on appeal

cannot rise above his trial testimony and that he cannot

successfully argue on appeal that his interchange with the

officers was simply a defense of his privacy right in his yard.

In ruling on Mason's motion to strike the evidence, the trial

court rejected this argument, accepted the testimony of the

Commonwealth's witnesses, and ruled that regardless of Mason's

status in the yard, he had no right to interfere with the

officers' lawful investigation of a citizen complaint.       We take

the same approach to the case.    If Mason's account be accepted,

he did nothing more than advise his friends to remain in his

yard, conduct which would not support the charge.    The testimony

of the police officers cannot be sectioned so as to eliminate

their description of Mason's strident and vituperative demands

that they leave.    Thus, we base our decision on the police

officers' testimony, as plainly did the trial court and the

jury.

        The officers received a citizen complaint of angry

confrontation and the apparent threat of a handgun.    This

potentially lethal situation presented an exigency that demanded

immediate investigation and justified their entry for purposes

of inquiry into the front yard of 1700 Charles Street.       Mason

                                 - 3 -
did more than ask that they leave.    He injected himself between

the officers and the man with whom they sought to speak, plainly

intending and accomplishing interference with the proper

performance of the officers' duties.   Credible evidence of this

conduct supports Mason's conviction.    See Code § 18.2-460(A);

Woodson v. Commonwealth, 245 Va. 401, 406, 429 S.E.2d 27, 30

(1993).

     The judgment of the trial court is affirmed.

                                                    Affirmed.




                              - 4 -
Benton, J., dissenting.

     In the absence of the existence of a well recognized

exigent circumstance, see Minnesota v. Olsen, 495 U.S. 1 (1990),

a homeowner is privileged to order a warrantless police officer

to leave the homeowner's real property.    The curtilage "has been

considered part of the home itself for Fourth Amendment

purposes."   Oliver v. United States, 466 U.S. 170, 180 (1984).

Thus, the police may not intrude on that space without a warrant

to seek evidence of a suspected crime.     See United States v.

Karo, 468 U.S. 705, 713-15 (1984).

     The officer's "presence on the premises violated [Jason A.

Mason's] Fourth Amendment rights unless [the officer] had

consent to be there."     Johnson v. Commonwealth, 26 Va. App. 674,

687, 496 S.E.2d 143, 149 (1998).    A homeowner may legitimately

demand privacy for activities in the area immediately

surrounding his or her home.     See Oliver, 466 U.S. at 178.

Furthermore, the law of trespass recognizes a homeowner's right

to exclude unwanted visitors, see Montgomery v. Commonwealth, 99

Va. 833, 835, 37 S.E. 841, 842 (1901), and confers protections

to a homeowner far broader than the Fourth Amendment.

     When Mason ordered the officers to leave his property and

raised his voice in so doing, he did not act in violation of

Code § 18.2-460(A).   Mason's verbal protest in support of his

demand that the officers leave his property did not constitute

obstruction of justice.     See Jones v. Commonwealth, 141 Va. 471,

                                 - 5 -
478-79, 126 S.E. 74, 77 (1925).   See also Ruckman v.

Commonwealth, 28 Va. App. 428, 505 S.E.2d 388 (1998); Brown v.

Commonwealth, 27 Va. App. 111, 497 S.E.2d 527 (1998).

     I dissent.




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