                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Elder, Petty and McCullough
UNPUBLISHED


              Argued at Richmond, Virginia


              GILBERTO DEJESUS, S/K/A
               GILBERTO DEJESUS, JR.
                                                                              MEMORANDUM OPINION* BY
              v.     Record No. 1055-12-2                                       JUDGE LARRY G. ELDER
                                                                                     JULY 2, 2013
              COMMONWEALTH OF VIRGINIA


                                FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                                              Bradley B. Cavedo, Judge

                               Joan J. Burroughs, Assistant Public Defender (Office of the Public
                               Defender, on brief), for appellant.

                               Lauren C. Campbell, Assistant Attorney General (Kenneth T.
                               Cuccinelli, II, Attorney General, on brief), for appellee.


                     Gilberto DeJesus (appellant) challenges his convictions for assault and battery of a law

              enforcement officer, in violation of Code § 18.2-57(C). On appeal, he argues that the trial court

              erred in its instructions to the jury and in holding his arrest was lawful. For the reasons that

              follow, we affirm.

                                                                I.

                     At trial, the Commonwealth presented evidence that appellant arrived at Loretta

              Lightfoot’s house and asked to come inside. When Lightfoot refused, appellant banged and

              kicked the back door with sufficient violence to force entry. After entering the home, appellant

              bumped into Lightfoot’s daughter’s boyfriend as he passed him in the hallway.




                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
        Lightfoot called the police. Officer Rodriguez was dispatched to Lightfoot’s house in

response to a report that a breaking and entering was in progress. When he arrived, the door was

open and he saw two males “scuffling.”

        Appellant, one of those two males, claimed he lived at the house. Rodriguez saw the

damage to the door and wall indicating someone had forced entry. Lightfoot informed

Rodriguez that appellant was her ex-boyfriend and did not live there. She showed Rodriguez the

lease, and it did not list appellant’s name as a tenant. Lightfoot’s daughter’s boyfriend told

Rodriguez that appellant pushed him when he entered the house.

        Rodriguez arrested appellant for breaking and entering, placing him in the back of a

police car. Once in the car, appellant kicked, hit, and screamed. Rodriguez decided to transport

him in a patrol wagon to the jail. When the police officers transferred appellant to the patrol

wagon, appellant head-butted one of the police officers and pushed another. He also spit on both

of the officers.

        Appellant did not present any evidence. However, Lightfoot testified that she was

appellant’s girlfriend at the time of the arrest. She additionally testified that at the time of the

arrest, appellant had lived with her for approximately one month and kept personal belongings in

her home. She explained that she had called the police because she was mad at appellant at the

time and did not want him in her house.

        At the conclusion of all the evidence, appellant proffered a jury instruction that read: “A

battery is the willful touching of another, without legal excuse or justification, done in an angry,

rude, insulting or vengeful manner.”

        The trial court denied the instruction. The trial court instead instructed the jury: “Any

touching in anger, without lawful provocation, however slight, including spitting on a person, is

sufficient to support a battery conviction.”

                                                 -2-
       Appellant additionally sought to instruct the jury on an unlawful arrest and his right to

resist an unlawful arrest. Appellant argued that whether the police had probable cause to arrest

him was an issue for the jury. The trial court ruled that the arrest was supported by probable

cause as a matter of law and did not submit the matter to the jury.

       The jury found appellant guilty of destruction of property and two counts of assault and

battery of a law enforcement officer. The jury found appellant not guilty of statutory burglary.

Appellant was sentenced to four years’ incarceration and fined $500.

                                                 II.

       Appellant appeals his convictions for assault and battery of a police officer. He argues

that the jury instruction defining “battery” unduly emphasized a piece of the Commonwealth’s

evidence. Appellant further contends that the question of whether probable cause existed to

arrest appellant was a question of fact to be decided by the jury. Appellant alternatively argues

that even if the issue of probable cause was one of law, the trial court erred in not giving the

related instructions to the jury because they were supported by his theory of the case. Last,

appellant contends that the evidence did not support the trial court’s holding that probable cause

existed to arrest him.

                                        Battery Instruction

        Appellant contends that the jury instruction explaining what types of touching were

sufficient to support a battery conviction singled out for emphasis the evidence of spitting and

may have misled the jury. The Commonwealth responds that the instruction was proper because

it correctly stated the law and did not suggest the credibility or weight of any specific evidence.

       The matter of granting and denying jury instructions rests within the discretion of the trial

court. Cooper v. Commonwealth, 277 Va. 377, 381, 673 S.E.2d 185, 187 (2009). However,

               [w]hen a trial judge instructs the jury in the law, he or she may not
               “single out for emphasis a part of the evidence tending to establish
                                                -3-
               a particular fact.” Woods v. Commonwealth, 171 Va. 543, 548,
               199 S.E. 465, 467 (1938)). The danger of such emphasis is that it
               gives undue prominence by the trial judge to the highlighted
               evidence and may mislead the jury. On the other hand,
               instructions should relate to the specific evidence of the case . . . .

Terry v. Commonwealth, 5 Va. App. 167, 170, 360 S.E.2d 880, 882 (1987) (citations omitted).

“Both the Commonwealth and the defendant are entitled to appropriate instructions to the jury of

the law applicable to each version of the case, provided such instructions are based upon the

evidence adduced.” Simms v. Commonwealth, 2 Va. App. 614, 616, 346 S.E.2d 734, 735

(1986). “When granted instructions fully and fairly cover a principle of law, a trial court does

not abuse its discretion in refusing another instruction relating to the same legal principle.”

Stockton v. Commonwealth, 227 Va. 124, 145, 314 S.E.2d 371, 384 (1984).

       Again, the trial court instructed the jury: “Any touching in anger, without lawful

provocation, however slight, including spitting on a person, is sufficient to support a battery

conviction.” As in Terry, the instruction

               did not suggest that specific evidence impelled any particular
               finding. . . . The jury was free to draw all reasonable and
               permissible inferences from the evidence without any suggestion in
               the jury instructions as to the conclusion. The instructions did not
               suggest the credibility or weight which should be given any
               specific evidence adduced at trial. . . . Therefore, . . . the
               instructions did not impermissibly highlight any of the evidence to
               the exclusion of other evidence.

5 Va. App. at 171, 360 S.E.2d at 882.

       Further, the given instruction fully and fairly explained what types of touching can

constitute a battery. See, e.g., Gilbert v. Commonwealth, 45 Va. App. 67, 70-71, 608 S.E.2d

509, 511 (2005) (explaining battery can consist of any touching of, including spitting on, another

person done in anger). Therefore, the instruction was proper and the trial court did not abuse its

discretion in denying appellant’s proposed instruction relating to the same legal principle.



                                                 -4-
                                         Legality of the Arrest

          Appellant argues that the trial court erred in denying his proffered jury instructions

regarding the question of whether probable cause existed to arrest him, because it was a question

of fact for the jury to decide. The Commonwealth contends that the trial court properly ruled on

probable cause because the facts were not in dispute.

          Code § 18.2-57(C) provides that “any person [who] commits an assault or an assault and

battery against . . . a law enforcement officer . . . is guilty of a Class 6 felony.” However,

“[u]nder the common law, a citizen generally is permitted to use reasonable force to resist an

illegal arrest.” Commonwealth v. Hill, 264 Va. 541, 546, 570 S.E.2d 805, 808 (2002).

          “‘The test of constitutional validity [of a warrantless arrest] is whether at the moment of

the arrest the arresting officer had knowledge of sufficient facts and circumstances to warrant a

reasonable man in believing that an offense has been committed.’” Ross v. Commonwealth, 35

Va. App. 103, 106, 542 S.E.2d 819, 820 (2001) (quoting DePriest v. Commonwealth, 4 Va. App.

577, 583-84, 359 S.E.2d 540, 543 (1987)). Sufficient facts and circumstances are referred to as

“probable cause.” See, e.g., Purdie v. Commonwealth, 36 Va. App. 178, 185, 549 S.E.2d 33, 37

(2001).

          Typically, evaluating the lawfulness of an arrest presents a mixed question of law and

fact. Smith v. Commonwealth, 30 Va. App. 737, 740, 519 S.E.2d 831, 832 (1999). Where the

facts are undisputed, however, only a question of law remains. See Bristol v. Commonwealth,

272 Va. 568, 573, 636 S.E.2d 460, 463 (2006) (reviewing “de novo the issue of law whether the

undisputed facts . . . establish[ed] that the officers effectuated an arrest”). Because the facts

leading to the arrest were undisputed, the only issue left to be determined was the legal question

of whether probable cause supported the arrest.




                                                  -5-
        Juries decide factual questions, not legal ones. “Where the facts are undisputed it is a

question of law, and should be determined by the court . . . .” Blakely v. Greene, 24 F.2d 676,

681 (4th Cir. 1928). Therefore, the trial court appropriately resolved the remaining legal

question of whether probable cause supported appellant’s arrest.

        Appellant alternatively argues that the trial court erred in denying his proposed jury

instructions regarding his right to resist an unlawful arrest because they were supported by his

theory of the case. The Commonwealth argues that the trial court properly refused the proffered

instructions because no evidence supported appellant’s theory of the case.

        “[A]n instruction is proper only if supported by more than a scintilla of evidence.”

Commonwealth v. Sands, 262 Va. 724, 729, 553 S.E.2d 733, 736 (2001). In reviewing the trial

court’s refusal to grant appellant’s proffered jury instructions, we view the evidence in the light

most favorable to appellant. See, e.g., Cooper, 277 Va. at 381, 673 S.E.2d at 187.

        When Officer Rodriguez arrived at Lightfoot’s house, Lightfoot informed him that

appellant was her ex-boyfriend and did not live there. Rodriguez saw appellant inside the house

and observed damage to the door where someone forced entry. These circumstances were

sufficient for a police officer to believe that appellant had committed statutory burglary, in

violation of Code § 18.2-91. Although appellant told Rodriguez that he lived there, the test for a

lawful arrest is whether there was “‘a probability or substantial chance of criminal activity, not

an actual showing of such activity.’” Ross, 35 Va. App. at 107, 542 S.E.2d at 821 (quoting Ford

v. City of Newport News, 23 Va. App. 137, 143-44, 474 S.E.2d 848, 851 (1996)).

        Because the record does not contain evidence supporting appellant’s theory of the case

that his arrest was unlawful, the trial court properly refused his proposed instructions relating to

the legality of the arrest.




                                                -6-
       Last, appellant contends that the trial court erred in holding that probable cause existed to

arrest him. Appellant argues that the evidence did not support the ruling because Lightfoot had

not told him he was no longer welcome in her home. The Commonwealth responds that the

evidence amply supported the trial court’s holding that probable cause supported the arrest.

       Having concluded that the evidence established that probable cause supported the arrest,

we do not need to address this issue further. We note only that appellant’s reliance on Mayo v.

Commonwealth, No. 0293-97-2 (Va. Ct. App. Nov. 25, 1997), is misplaced, because whether the

evidence is sufficient to support a statutory burglary conviction is a separate question from

whether probable cause exists to arrest an individual for the offense. See Ross, 35 Va. App. at

107, 542 S.E.2d at 821.

                                                      III.

       Because the trial court did not abuse its discretion in instructing the jury or err in holding

appellant’s arrest was lawful, we affirm the convictions.

                                                                                           Affirmed.




                                                -7-
