                               COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Felton, Judge Elder and Senior Judge Willis
Argued at Chesapeake, Virginia


LAWRENCE WESLEY ROBERTS
                                                               MEMORANDUM OPINION * BY
v.     Record No. 1815-10-1                                    JUDGE JERE M. H. WILLIS, JR.
                                                                    OCTOBER 4, 2011
COMMONWEALTH OF VIRGINIA


                   FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                               Everett A. Martin, Jr., Judge

                 J. Barry McCracken, Assistant Public Defender (Office of the Public
                 Defender, on brief), for appellant.

                 Donald E. Jeffrey, III, Senior Assistant Attorney General
                 (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.


       Lawrence Wesley Roberts was convicted in the trial court of possessing cocaine, obstruction

of justice, and driving after having been declared an habitual offender, a second or subsequent

offense. On appeal, he contends: (1) the trial court erred in denying his motion to suppress the

evidence because the police lacked probable cause to arrest him, and (2) the evidence was

insufficient to sustain his conviction of obstruction of justice. We affirm Roberts’ convictions of

possessing cocaine and driving after being declared an habitual offender. We reverse his conviction

of obstructing justice and order that charge dismissed.

                                           BACKGROUND

       Under familiar principles of appellate review, we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible

therefrom. See Haskins v. Commonwealth, 31 Va. App. 145, 149-50, 521 S.E.2d 777, 779

       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
(1999). When a motion to suppress is reviewed on appeal, we examine the records of both the

suppression hearing and the trial to determine whether the evidence was lawfully seized. See

DePriest v. Commonwealth, 4 Va. App. 577, 583, 359 S.E.2d 540, 542 (1987).

       At about 7:45 p.m. on October 6, 2009, Officers Wright and Serrano were on patrol in the

area of 26th Street and Colonial Avenue in Norfolk. The officers spotted a Honda Accord with a

license plate that had expired in 2008, according to the computer located in the police vehicle.

However, the license plate on the Honda had a decal indicating the tag was valid until 2010. The

police computer also indicated the vehicle had been sold and the current owners were a man and a

woman.

       The Honda pulled into the parking lot of a convenience store and stopped. The officers

followed the Honda into the parking lot and activated the police car’s flashing lights. Roberts got

out of the driver’s seat of the Honda, and a woman exited the passenger side. Wright instructed

Roberts to return to the vehicle, but he continued to walk toward the store. Wright followed him

and repeated his command to return to the car. Roberts looked over his shoulder and turned back

toward the Honda.

       Wright asked Roberts whether he had a driver’s license and who owned the vehicle.

Roberts did not reply but took off running northbound on Colonial Avenue. Wright told him to

stop, that he was not free to leave. Pursuing Roberts, Wright again ordered him to stop or he would

use his stun gun. Roberts tripped and fell. When he got up and tried to run again, Wright grabbed

him and deployed his stun gun. Roberts fell to the ground.

       On the ground, Roberts resisted the arrest. Although Wright ordered him to put his hands

behind his back, he tried to reach with his hands to the front of his waistband. Wright feared he was

reaching for a weapon. Wright and Serrano subdued Roberts, pulling his hands behind his back and

placing him in handcuffs.

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       Wright searched Roberts incident to his arrest and found eight bags of cocaine in his right

front pocket. Police records disclosed that Roberts had been ordered not to drive because he was an

habitual offender and had been previously convicted of violating that order.

                                            ANALYSIS

                                       I. Motion to Suppress

       Appellant contends the trial court erred in denying the motion to suppress because the police

lacked probable cause to arrest him.

                       A defendant’s claim that evidence was seized in violation
               of the Fourth Amendment presents a mixed question of law and
               fact that we review de novo on appeal. In making such a
               determination, we give deference to the factual findings of the
               circuit court, but we independently determine whether the manner
               in which the evidence was obtained meets the requirements of the
               Fourth Amendment. The defendant has the burden to show that,
               considering the evidence in the light most favorable to the
               Commonwealth, the trial court’s denial of his suppression motion
               was reversible error.

McCain v. Commonwealth, 275 Va. 546, 551-52, 659 S.E.2d 512, 515 (2008) (citations omitted).

       Probable cause “‘as the very name implies, deals with probabilities.’” Slayton v.

Commonwealth, 41 Va. App. 101, 105-06, 582 S.E.2d 448, 450 (2003) (quoting Derr v.

Commonwealth, 242 Va. 413, 421, 410 S.E.2d 662, 666 (1991)). It does not “‘demand any

showing that such a belief be correct or more likely true than false.’” Id. at 106, 582 S.E.2d at

450 (quoting Texas v. Brown, 460 U.S. 730, 742 (1983)). It does not require that the facts be

sufficient to convict the suspect of the offense. See id. at 107, 582 S.E.2d at 451.

       In pertinent part, Code § 46.2-722 provides:

                       Any person who, with fraudulent intent, alters any license
               plate or decal issued by the Department or by any other state,
               forges or counterfeits any license plate or decal purporting to have
               been issued by the Department under the provisions of this title or
               by any other state under a similar law or who, with fraudulent
               intent, alters, falsifies, or forges any assignment thereof, or who
               holds or uses any license plate or decal knowing it to have been
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               altered, forged, or falsified, shall be guilty of a Class 1
               misdemeanor.

                       The owner of a vehicle who operates it while it displays
               altered or forged license plates or decals shall be presumed to have
               knowledge of the alteration or forgery.

Further, Code § 46.2-613(2) prohibits any person from

               [d]isplay[ing], caus[ing] or permit[ting] to be displayed, any
               registration card, certificate of title, or license plate or decal which
               he knows is fictitious or which he knows has been cancelled,
               revoked, suspended, or altered; or display[ing] or caus[ing] or
               permit[ting] to be displayed on any motor vehicle . . . any license
               plate or decal that he knows is currently issued for another vehicle.

       Using the police computer, Wright learned that the decal on the vehicle appellant was

driving was inconsistent with the expiration date of the license plate. Roberts’ presence with a

woman in the car was consistent with the information provided by the computer that a man and a

woman had purchased the car. When Wright asked about Roberts’ driver’s license and the

vehicle’s ownership, Roberts ran. Flight “invites pursuit and colors conduct which hitherto has

appeared innocent.” Quigley v. Commonwealth, 14 Va. App. 28, 33 n.6, 414 S.E.2d 851, 854

n.6 (1992).

       Based upon the information obtained from the computer and their observation of Roberts’

conduct, the police had probable cause to believe that he had violated Code § 46.2-722 by

knowingly operating a vehicle with an altered or fraudulent license plate or decal. This justified

his arrest and search incident to that arrest. See Virginia v. Moore, 553 U.S. 164, 178 (2008).

The trial court did not err in denying the motion to suppress.

                           II. Sufficiency to Prove Obstruction of Justice

       When addressing the sufficiency of the evidence, we “‘presume the judgment of the trial

court to be correct’ and reverse only if the trial court’s decision is ‘plainly wrong or without

evidence to support it.’” Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447


                                                 -4-
(2003) (en banc) (quoting Davis v. Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d 875, 876-77

(2002)).

       Code § 18.2-460(A) provides, in pertinent part:

               If any person without just cause knowingly obstructs . . . 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 . . . law-enforcement officer, . . .
               he shall be guilty of a Class 1 misdemeanor.

To constitute a violation of the statute,

               the defendant must intend to impede an officer “in the performance
               of his duties.” Woodson v. Commonwealth, 14 Va. App. 787, 795,
               421 S.E.2d 1, 6 (1992). Impeding an officer’s duties does not
               require the defendant to commit “an actual or technical assault
               upon the officer.” Love v. Commonwealth, 212 Va. 492, 494, 184
               S.E.2d 769, 771 (1971). Rather, “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.” Ruckman v.
               Commonwealth, 28 Va. App. 428, 429, 505 S.E.2d 388, 389
               (1998).

Craddock v. Commonwealth, 40 Va. App. 539, 552-53, 580 S.E.2d 454, 461 (2003). See also

Jordan v. Commonwealth, 273 Va. 639, 648, 643 S.E.2d 166, 171 (2007).

       By running and not putting his hands behind his back, as ordered, Wright resisted arrest.

However, his resistance did not prevent or significantly impede the officers in the performance

of their duties. Thus the evidence was insufficient to prove him guilty of obstruction of justice.

His conviction of that offense is reversed, and that charge is ordered dismissed.

                                                                                    Affirmed in part,
                                                                                        reversed and
                                                                                    dismissed in part.




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