                               COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Felton, Senior Judges Willis and Annunziata
Argued at Alexandria, Virginia


LUIS ARMANDO SOLORZANO
                                                             MEMORANDUM OPINION * BY
v.     Record No. 2782-06-4                                JUDGE ROSEMARIE ANNUNZIATA
                                                                  JANUARY 22, 2008
COMMONWEALTH OF VIRGINIA


                 FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
                                 Lisa B. Kemler, Judge

                 Bryan Waldron (Nichole Dannielle Flippen; Butler Legal Group,
                 P.L.L.P., on brief), for appellant.

                 Eugene Murphy, Senior Assistant Attorney General (Robert F.
                 McDonnell, Attorney General, on brief), for appellee.


       Luis Armando Solorzano, appellant, contends the evidence was insufficient as a matter of

law to prove beyond a reasonable doubt that he committed assault and battery of a firefighter in

violation of Code § 18.2-57(C), a Class 6 felony, and misdemeanor obstruction of justice of a

police officer in violation of Code § 18.2-460(B). We find no error and affirm.

                                              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) (quoting Martin v. Commonwealth, 4 Va. App.

438, 443, 358 S.E.2d 415, 418 (1987)). So viewed, the evidence proved that on March 13, 2006,




       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Korrina Torres found appellant, her father, unconscious in his home. 1 Appellant only briefly

regained consciousness. Torres called the paramedics for assistance.

       Approximately fifteen minutes later, paramedics and firefighters arrived at Solorzano’s

home. Leddyanne Dell, a paramedic for the City of Alexandria Fire Department, discovered

appellant unconscious and unresponsive. Dell and her co-worker attempted several procedures

and protocols to revive appellant and determine his condition. They placed an oxygen mask over

his mouth and nose, attached a portable heart monitor, and Dell administered two one-milligram

doses of Narcan to appellant. 2 When appellant did not respond, rescue personnel strapped

appellant onto a stretcher and transported him to the elevator. Dell, her supervisor Kathleen

Barrett, and firefighters Thompson and Lalhei accompanied the stretcher into the elevator. The

paramedics wore T-shirts inscribed with the word “Medic,” and the firefighters wore T-shirts

inscribed with “Firefighter.”

       As the elevator descended, appellant regained consciousness and became “very

combative, coming out of a seatbelt” holding him onto the upright stretcher. The rescue

personnel “tried to explain to him and reassure him what was going on.” They told him that they

were fire and EMT personnel and that they were there to help him. They also used hand gestures

to instruct appellant to calm down. Appellant then “made a purposeful movement for [Barrett],

taking his hand and placing it around her neck.” When appellant began choking Barrett,

firefighter Thompson helped Barrett remove appellant’s hands from her neck. When Barrett



       1
            Appellant is a fifty-two-year-old Venezuelan native. He is a permanent United States
resident.
       2
          Narcan is a drug used to counteract an opiate, morphine, or heroin overdose. At trial,
Dell testified that she administered Narcan in an attempt to bring Solorzano out of
unconsciousness, which is standard protocol when there is no information regarding why a
patient is unconscious.

                                                -2-
raised her hand to protect herself, appellant grabbed her wrist, bending it backwards. 3 Appellant

then struck Dell across the chest with his elbow and arm, knocking her to the back of the

elevator.

       When they reached the lobby, appellant’s daughter, Torres, tried to speak with appellant,

but rescue personnel asked her to move back because “it was making the situation worse.”

Meanwhile, appellant continued to physically resist police officers who were waiting at the

elevator door to assist in response to Dell’s call for help. A Spanish-speaking police officer

explained the situation to appellant, but appellant remained combative and resistant. When

officers tried to restrain appellant, “he pulled so hard away from [one officer] that he bent the

handcuffs.” Appellant continued to “thrash about” and pull away even after he had been

handcuffed. During Dell’s testimony, the Commonwealth played for the trial court a videotape

depicting a portion of the events that took place. 4 Moreover, Dell wore in court the same

uniform she wore the day of the incident.

       Officer Feltham received the paramedic’s emergency signal and approached the elevator

when the doors opened on the ground floor. Feltham, who was in his police uniform at the time,

testified that appellant “was violently thrashing about” and “trying to push the firefighters away.”

       At trial, a medical expert testified that Narcan would not produce violent behavior, and

appellant stipulated that Narcan had nothing to do with his behavior. The parties also stipulated

that, upon arrival at the hospital, appellant had a blood alcohol content (BAC) of .22 and that


       3
          In the confrontation with Barrett, appellant “laterally crushed [Barrett’s] wrist and then
snapped it backwards.” Barrett sustained several tears in her radial attachment, has permanent
Stage II lymphodema, and has retired from the fire department because she can no longer
perform her job. She also sustained strains, pulls, and nerve damage in her shoulder and the
scapula behind her shoulder.
       4
        The videotape was marked for identification as Commonwealth’s Exhibit Number 4, but
it was not admitted at trial or sent with the record on appeal.

                                                -3-
appellant was diagnosed with acute alcohol intoxication and chronic alcoholism. 5 At the

hospital, the doctor spoke with appellant and communicated with him in English.

       Appellant testified that he remembered nothing up until the time he awoke in the elevator

on the ground floor, and he had no recollection of struggling with the paramedics or police.

       The trial court, sitting without a jury, convicted appellant of assault and battery of Barrett

in violation of Code § 18.2-57(C) and obstruction of justice in violation of Code § 18.2-460(B).

The court found appellant not guilty with respect to the charged assault on Dell.

                                            ANALYSIS

                         Summary of Arguments and Standard of Review

       Appellant contends the evidence failed to prove he knew the people surrounding him

were firefighters, paramedics, and police officers. He argues he had no reason to know their

identities because he did not know English well enough to understand the explanations provided

to him by the emergency services personnel. He also argues the evidence did not exclude all

reasonable hypotheses of innocence as is necessary to show guilt beyond a reasonable doubt. He

reasons that the evidence showed he believed he was defending himself from being kidnapped,

that this hypothesis of innocence was inconsistent with guilt, and that the Commonwealth failed

to rebut this evidence at trial. Finally, appellant contends the Commonwealth did not show that

appellant’s mental and physical states at the time were such that he was able to accurately

process the meaning of the events and information provided to him. In addition to the arguments

appellant advances in defense of the assault charges, he contends the slight challenge he

presented to firefighters and police officers was insufficient to sustain a conviction for




       5
         Appellant testified that on March 13, 2006, he had seven whiskeys to drink before he
returned to his home. The night before he consumed ten to twelve whiskeys.

                                                -4-
obstruction of justice. Finally, appellant argues the “Commonwealth failed to prove” he “was

not entitled to defend himself.”

       “Where the sufficiency of the evidence is challenged after conviction, it is our duty to

consider it in the light most favorable to the Commonwealth and give it all reasonable inferences

fairly deducible therefrom.” Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d

534, 537 (1975). ‘“[T]he relevant question is whether . . . any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.’” Kelly v. Commonwealth,

41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc) (quoting Jackson v. Virginia, 443

U.S. 307, 319 (1979)). ‘“The judgment of a trial court sitting without a jury is entitled to the same

weight as a jury verdict and will not be disturbed on appeal unless plainly wrong or without

evidence to support it.’” Askew v. Commonwealth, 40 Va. App. 104, 107, 578 S.E.2d 58, 60

(2003) (quoting Beck v. Commonwealth, 2 Va. App. 170, 172, 342 S.E.2d 642, 643 (1986)).

       We address each argument seriatim.

                                       Assault of a Firefighter

       Code § 18.2-57(C) provides, in pertinent part, “if any person commits an assault or an

assault and battery against another knowing or having reason to know that such other person is

. . . a firefighter as defined in § 65.2-102 . . . engaged in the performance of his public duties,

such person is guilty of a Class 6 felony.” Appellant concedes Barrett was a firefighter as

defined in the Code, but contests the conclusion that he knew or had reason to know Barrett was

a firefighter or emergency medical technician.

       “Actual knowledge is a fact that may be proved by direct or circumstantial evidence.”

Tooke v. Commonwealth, 47 Va. App. 759, 766, 627 S.E.2d 533, 536 (2006). “‘Guilty

knowledge . . . [a]bsent proof of an admission against interest, . . . necessarily must be shown by




                                                 -5-
circumstantial evidence.’” Snow v. Commonwealth, 33 Va. App. 766, 775, 537 S.E.2d 6, 11

(2000) (quoting Lewis v. Commonwealth, 225 Va. 497, 503, 303 S.E.2d 890, 893 (1983)).

       Here, the evidence established appellant knew or had reason to know Barrett was a

firefighter. When paramedics arrived at the scene, they were informed appellant understood

English. As soon as appellant regained consciousness, he looked around the elevator. Each

person in the elevator wore a uniform identifying that individual as a firefighter or medic.

Additionally, after the elevator reached the ground floor, an officer fluent in Spanish explained

the situation to appellant in Spanish, yet appellant remained uncooperative. When appellant

received treatment at the hospital, the medical staff communicated with him in English, and

when he testified at trial, he did not assert that his inability to understand English was the reason

he responded violently upon awakening.

       Even accepting appellant’s contention that he did not understand the instructions

provided to him or the words on the uniforms because his knowledge of the English language

was poor, we conclude that he nevertheless knew or had reason to know Barrett was a member of

an emergency rescue team because of the circumstances attending the incident. Appellant awoke

on a stretcher, “[h]e was hooked up to [a] life pack. He had an IV established.” “He had a

non-rebreather mask on his face for oxygen.” He was surrounded by people in uniform carrying

gear one would expect emergency personnel to carry: a “drill box, oxygen bag, [] life pack, and

[] jump bag.” As soon as appellant regained consciousness, the emergency personnel team was

“making hand gestures so that he understood to be calm and [that everything was] okay.” The

trial court as fact finder had an opportunity to view the uniforms worn by the emergency

personnel both at trial and on the videotaped account of the incident. In light of this evidence,

we find that appellant’s assertion he did not “knowingly” assault a firefighter is without merit.




                                                -6-
       Appellant also contends the trial court failed to exclude the reasonable hypothesis of

innocence that he thought he was being kidnapped and was acting in self-defense when he

assaulted Barrett. We find this contention to be likewise without merit.

       In determining whether the Commonwealth proved all of the elements of assault of a

firefighter, “‘all necessary circumstances proved must be consistent with guilt and inconsistent

with innocence and must exclude every reasonable hypothesis of innocence.’” Hamilton v.

Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993) (quoting Boothe v.

Commonwealth, 4 Va. App. 484, 492, 358 S.E.2d 740, 745 (1987)) (emphasis added). “It is

‘within the province of the jury to determine what inferences are to be drawn from proved facts,

provided the inferences are reasonably related to those facts.’” Commonwealth v. Hudson, 265

Va. 505, 514, 578 S.E.2d 781, 786 (2003) (quoting Inge v. Commonwealth, 217 Va. 360, 366,

228 S.E.2d 563, 567-68 (1976)). We “must determine not whether there is some evidence to

support [appellant’s] hypothesis of innocence but, rather, whether a reasonable fact finder, upon

consideration of all the evidence, could have rejected appellant’s theories and found him guilty

beyond a reasonable doubt.” Corbin v. Commonwealth, 44 Va. App. 196, 202, 604 S.E.2d 111,

114 (2004). “Further, a fact-finder having rejected a defendant’s attempted explanation as

untrue, may draw the reasonable inference that his explanation was made falsely in an effort to

conceal his guilt.” Covil v. Commonwealth, 268 Va. 692, 696, 604 S.E.2d 79, 82 (2004).

       Here, appellant claims that because he did not know the emergency rescue team was

trying to help him, he was defending himself from being kidnapped. Appellant testified at trial,

but did not testify to the issue. Instead, appellant’s daughter, Torres, testified that when

appellant emerged from the elevator, appellant stated, “[p]lease somebody help me. They’re

kidnapping me. Somebody please come and help me.” The court rejected appellant’s hypothesis

of innocence, and instead, chose to believe the emergency services personnel, none of whom

                                                -7-
testified appellant claimed he was being kidnapped during the encounter. The court was entitled

to reject Torres’ testimony, and conclude she was lying to help conceal her father’s guilt. Id.

Finally, appellant claims his mental state and intoxication rendered him unable “to accurately

process the meaning of the events giving him reason to know the identities of his escorts and to

act accordingly.” The evidence established appellant’s BAC was .22 at the time of the

altercation. Appellant’s altered mental state was the product of his own excessive drinking. Any

problem he had perceiving the identity of the fire and EMT personnel and understanding the

nature of their actions in trying to revive him was due to his own voluntary action. Appellant’s

voluntary intoxication does not excuse his behavior and does not constitute a basis for reversal as

a matter of law. Arnold v. Commonwealth, 37 Va. App. 781, 791, 560 S.E.2d 915, 919 (2002)

(“[V]oluntary intoxication is not an excuse for any crime. At most, it may negate the

deliberation and premeditation required for first degree murder.”).

                                      Obstruction of Justice

       Appellant contends in his brief that the “slight challenge to” the police officers did not

constitute obstruction of justice. He contends he “merely squirmed” as he was being handcuffed,

and his “struggles were purely and merely for the purpose of freeing himself from tethers and

strangers he thought were kidnapping him.” He also contends he did not act “knowingly” and

makes the same arguments for the obstruction conviction that he made for the assault conviction,

namely, his mental state precluded him from being aware the uniformed police officers were

“law enforcement officers engaged in the performance of their duties.”

       Criminal obstruction of justice occurs

               [i]f any person without just cause knowingly obstructs a judge,
               magistrate, justice, juror, attorney for the Commonwealth, witness
               or any 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 judge, magistrate, justice, juror,

                                                -8-
               attorney for the Commonwealth, witness, or law-enforcement
               officer, he shall be guilty of a Class 1 misdemeanor.

Code § 18.2-460.

       The evidence established appellant was “violently thrashing about . . . [and] pushing his

arms up, trying to push firefighters away.” Officer Feltham testified,

               I got a hold of his right hand. And as soon as I got a hold of his
               right hand, he grabbed my other hand with his hand. And me and
               another unknown person in the elevator literally had to pry his
               fingers off one by one in order to free my hand . . . to get the
               handcuff on his arm.

               Once we got the handcuff on, he was still thrashing about and
               pulling away. He had pulled the IV lines out of his arm. I was
               holding onto the one—the free bracelet, or the handcuff. And he
               pulled so hard away from me that he bent the handcuffs.

       From this record, it is clear that appellant presented more than a “slight challenge” to

Feltham and that he obstructed justice in his attempt to escape from being handcuffed.

                                           Self-Defense

       Appellant’s argument that he acted in self-defense in assaulting the paramedics and the

police and that the “Commonwealth failed to prove beyond a reasonable doubt that [he] was not

entitled to defend himself against what he reasonably perceived to be an imminent danger to

himself” was not presented to the trial court as required by Rule 5A:18 and, accordingly, was not

preserved for appeal. Furthermore, appellant does not argue we should invoke the “good cause”

or “ends of justice exception,” and this Court will not apply the exceptions to Rule 5A:18 sua

sponte. Edwards v. Commonwealth, 41 Va. App. 752, 761, 589 S.E.2d 444, 448 (2003) (en

banc). Moreover, even if appellant had preserved this issue below, it was not a question

presented in the petition for appeal as required by Rule 5A:12(c), nor in his opening brief, as




                                               -9-
required by Rule 5A:20(c), Jordan v. Commonwealth, 50 Va. App. 322, 326 n.2, 649 S.E.2d 709,

711-12 n.2 (2007), nor was it included as an issue in the order in which we granted Issue I. 6

        Accordingly, we are precluded from addressing this argument for the first time on appeal.

                                           CONCLUSION

        The Commonwealth presented competent, credible and sufficient evidence to prove

beyond a reasonable doubt that appellant was guilty of assaulting a firefighter and obstructing

justice, therefore, the trial court’s judgment was neither plainly wrong nor without evidence to

support it. See Askew, 40 Va. App. at 107, 578 S.E.2d at 60. Accordingly, the decision of the

trial court is affirmed.

                                                                                         Affirmed.




        6
            The question on which we granted the appeal was:

                 Whether the trial court erred in not setting aside the verdict, where
                 the evidence was insufficient as a matter of law to prove beyond a
                 reasonable doubt that (i) appellant assaulted and battered a
                 firefighter, and (ii) obstructed justice.

       Moreover, the law and standard of review relating to a challenge to the sufficiency of the
evidence differ from the law relating to self-defense. “Self-defense is an affirmative defense
which the accused must prove by introducing sufficient evidence to raise a reasonable doubt
about his guilt.” Smith v. Commonwealth, 17 Va. App. 68, 71, 435 S.E.2d 414, 416 (1993).

                                                 - 10 -
