                                           COURT OF APPEALS OF VIRGINIA


            Present: Chief Judge Huff, Judges Humphreys and O’Brien
            Argued at Fredericksburg, Virginia
PUBLISHED




            NICHOLAS GABRIEL PARKER DAVIS
                                                                                  OPINION BY
            v.      Record No. 0825-17-4                                   JUDGE MARY GRACE O’BRIEN
                                                                                  MAY 15, 2018
            COMMONWEALTH OF VIRGINIA


                                FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
                                            Jeffrey W. Parker, Judge

                            Kevin J. Gerrity, Deputy Public Defender, for appellant.

                            Eugene Murphy, Senior Assistant Attorney General (Mark R.
                            Herring, Attorney General, on brief), for appellee.


                    A jury convicted Nicholas Gabriel Parker Davis (“appellant”) of possessing a firearm while

            subject to a protective order, in violation of Code § 18.2-308.1:4(B). At trial, appellant asserted a

            due process defense, arguing that he reasonably relied on information from the Fairfax Juvenile and

            Domestic Relations District Court (“JDR court”) that the protective order was no longer in effect.

            On appeal, he contends that the trial court erred in denying his motion to strike and refusing his

            proffered jury instruction on the affirmative defense of reasonable reliance. Because we find that

            the court erred in determining that the defense did not apply, we reverse.

                                                      BACKGROUND

                    The undisputed evidence established that, on October 12, 2016, while appellant was parked

            at a McDonald’s restaurant, a sheriff’s deputy observed an AR-15 rifle on the backseat of his car.

            Appellant explained that he had been to a local shooting range and that the gun belonged to his

            friend. The deputy checked appellant’s information through dispatch and learned that appellant was

            the subject of a protective order. When the deputy told appellant about the protective order,
appellant responded, “That was dismissed.” The deputy arrested appellant for possession of a

firearm while subject to a protective order.

        Eight months earlier, on February 8, 2016, appellant’s wife, Liliana Zuniga, obtained a

protective order in the JDR court. The order, issued pursuant to Code § 16.1-279.1, prohibited

appellant from having any contact with Zuniga or their minor child, and it granted Zuniga custody

of the child “until further order of the court.” The protective order also stated:

                Pursuant to Code of Virginia § 18.2-308.1:4, [appellant] shall not
                purchase or transport any firearm while this order is in effect. . . .
                Either party may at any time file a motion with the court requesting a
                hearing to dissolve or modify this order; however, this order remains
                in full force and effect unless and until dissolved or modified by the
                court.

        A specific case number was listed on the order, and the attached certificate of service

indicated that appellant was personally served with the order on February 9, 2016.

        Appellant and Zuniga appeared pro se in the JDR court on February 18 for a “status

hearing.” On that date, the judge signed an order reflecting that “[p]etitioner wishes to non-suit all

petitions” and “[a]ll petitions [are] dismissed.” (Emphasis added). The order listed three case

numbers and had boxes checked indicating the types of cases heard: “custody,” “child support,”

and “spousal support.” The order neither addressed the protective order nor referred to its specific

case number.

        Following appellant’s arrest, on December 28, 2016, Zuniga wrote a letter to the JDR court

and requested that the protective order be dismissed. In the letter, Zuniga wrote, “Both [of us]

thought the order was dropped due to our court [appearance] back in January or February.” The

JDR court entered an order dissolving the protective order on January 11, 2017.

        Zuniga testified at appellant’s criminal trial. She stated that, prior to the February 18

hearing in JDR court, she decided to dissolve the protective order and dismiss the other petitions

because “we both agreed to work on our marriage and to fix everything for the baby.” According to
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Zuniga, she asked the JDR judge if “everything against [appellant] – child support, custody of the

baby and the protective order” could “be dropped,” and the JDR judge responded that “[a]ll matters

against [appellant] have been dropped.” Appellant and Zuniga left the courthouse together, took a

family vacation, and remained reconciled at the time of trial.

        Appellant also testified that following the February 18 hearing, he and Zuniga “both thought

[the protective order] was dropped.” He stated that at the JDR hearing, Zuniga “asked the judge to

drop everything, the custody, the restraining order, the spousal support, [and] just to let us fix it.”

According to appellant, he did not know that the protective order was still in effect until his arrest on

October 12, 2016.

        At the conclusion of the evidence, appellant moved to strike and argued that a conviction

would violate his due process rights because he reasonably relied on information from the JDR

court that the protective order was dismissed. The court denied the motion, ruling that the defense

did not apply because “[w]e don’t have any official agency giving advice to the defendant as to not

having to comply with the terms of the protective order[,] and I don’t have anything from the judge

saying that the protective order was dissolved.”

        Appellant offered a jury instruction on the affirmative defense of reasonable reliance, which

he had adapted from Miller v. Commonwealth, 25 Va. App. 727, 492 S.E.2d 482 (1997). The court

refused the instruction, ruling that the defense did not apply because the JDR judge did not qualify

as a “government official” who is “charged by law with responsibility for defining permissible

conduct with respect to the offense at issue” under Miller, 25 Va. App. at 739, 492 S.E.2d at 489.

The court further ruled that a court speaks through its orders, and the February 18 JDR order was

unambiguous and did not address the protective order.

        During deliberations, the jury asked the following question: “If we believe [appellant]

thought the protective order was dismissed in February 2016, would that constitute reasonable doubt

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and nullify the weapons possession charge?” The court responded: “The jury has to apply the

instructions submitted for guidance in deciding this case.” The jury found appellant guilty and

recommended a one-dollar fine.

                                              ANALYSIS

        The decision to grant or deny proffered jury instructions rests within the sound discretion of

the trial court. Sarafin v. Commonwealth, 288 Va. 320, 325, 764 S.E.2d 71, 74 (2014). The Court’s

“sole responsibility in reviewing [jury instructions] is to see that the law has been clearly stated and

that the instructions cover all issues which the evidence fairly raises.” Swisher v. Swisher, 223 Va.

499, 503, 290 S.E.2d 856, 858 (1982). Instructions must be supported by “more than a mere

scintilla of evidence.” Herbin v. Commonwealth, 28 Va. App. 173, 181, 503 S.E.2d 226, 230

(1998) (quoting Gibson v. Commonwealth, 216 Va. 412, 417, 219 S.E.2d 845, 849 (1975)). “If a

proffered instruction finds any support in credible evidence, its refusal is reversible error.”

McClung v. Commonwealth, 215 Va. 654, 657, 212 S.E.2d 290, 293 (1975).

        Appellant concedes that he possessed a firearm while subject to a protective order, but

argues that he had a constitutional due process right to reasonably rely on affirmative assurances by

a government official that the protective order had been dismissed. He asserts that he was entitled

to a jury instruction on his affirmative defense because he presented evidence that the JDR judge

stated “all matters . . . have been dropped,” and entered an order indicating that “all petitions [are]

dismissed.”

        We have recognized that a due process defense is available to a defendant who is on trial

“for reasonably and in good faith doing that which he was told he could do.” Miller, 25 Va. App. at

737, 492 S.E.2d at 487. The defense is based on the premise that “convicting an individual who has

reasonably relied on the advice of a state actor is so fundamentally unfair as to raise due process

concerns.” Id. at 739, 492 S.E.2d at 488. “The defendant bears the burden of establishing the

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affirmative defense,” and establishing “as a threshold matter, the legal sufficiency of the content and

source of the information received.” Id. at 737, 492 S.E.2d at 487-88. “The application of the

defense then requires a factual determination whether the defendant’s reliance upon the information

received was reasonable and in good faith.” Id.

        Citing Miller, this Court articulated the three requirements to successfully raise a due

process defense in Branch v. Commonwealth, 42 Va. App. 665, 593 S.E.2d 835 (2004). A

defendant must present evidence:

                1) that he was assured that the conduct giving rise to the conviction
                was lawful; 2) that the assurance was given by a “government
                official,” i.e., “a public officer or body charged by law with
                responsibility for defining permissible conduct with respect to the
                offense at issue”; and 3) that, based on the totality of the
                circumstances, reliance upon the advice was reasonable and in good
                faith.

Id. at 671, 593 S.E.2d at 837 (quoting Miller, 25 Va. App. at 738-39, 745, 492 S.E.2d at 488-89,

491).

        In Miller, we reversed a conviction for possessing a firearm by a convicted felon because the

defendant had been advised by his probation officer that he could lawfully possess a muzzle-loading

rifle for hunting. 25 Va. App. at 729-30, 492 S.E.2d at 484. At issue was whether the probation

officer qualified as a “government official” who was “charged by law with responsibility for

defining permissible conduct with respect to the offense at issue.” Id. at 739, 492 S.E.2d at 489.

Because a probation officer’s authority necessarily requires an interpretation of permissible conduct

by a probationer, we ruled that “Miller’s probation officer was . . . a source legally sufficient to

invoke the Due Process Clause as a bar to his prosecution and conviction.” Id. at 745, 492 S.E.2d at

491. See also Palmer v. Commonwealth, 48 Va. App. 457, 464-66, 632 S.E.2d 611, 614-15 (2006)

(holding that a juvenile’s North Carolina probation officer was a source legally sufficient to invoke




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the due process clause, because a statute authorized out-of-state probation officers to serve as

adjuncts to the Virginia system).

       Here, the court denied appellant’s request for a “reasonable reliance” instruction because it

found that the JDR judge was not a “government official” who could give an affirmative assurance

that the protective order was dismissed. The court stated:

               I don’t think a judge is a “government official” as used in [the
               Miller] opinion.

                       A government official . . . is someone such as a probation
               officer or a police officer or maybe a Commonwealth’s attorney, or
               someone otherwise charged with duties to enforce the law but not in
               the same scope as a judge would be in terms of administering the
               law.

                           ....

                       So I don’t believe that we have a government official charged
               by law with the responsibility for defining legal conduct. Judges just
               don’t sit around and define legal conduct. We adjudicate cases. We
               don’t give advisory opinions and recommendations to individuals as
               to how they should comport themselves.

       However, case law recognizes that judges have a duty to interpret and apply the law and

therefore their statements can implicate the reasonable reliance defense. See United States v. Brady,

710 F. Supp. 290, 294-95 (D. Colo. 1989) (holding that due process precluded a conviction for

possessing a weapon as a felon, after a judge advised the defendant that he could use a gun for

hunting and trapping), cited with approval in Miller, 25 Va. App. at 740, 492 S.E.2d at 489. Judges

“define permissible conduct” under the law and enforce compliance. Miller, 25 Va. App. at 739,

492 S.E.2d at 489. “The case for allowing the due process defense when the advice is given by a

judge is . . . compelling.” Brady, 710 F. Supp. at 295.

               Because of the unique role of the judiciary in interpreting the law,
               many courts have recognized that it “would be an act of ‘intolerable
               injustice’ to hold criminally liable a person who had engaged in
               certain conduct in reasonable reliance on a judicial opinion
               instructing that such conduct is legal.”
                                                 -6-
Id. (quoting Kratz v. Kratz, 477 F. Supp. 463, 481 (E.D. Pa. 1979)). See id. (collecting cases).

Here, the protective order was entered in the JDR court and subject to enforcement and modification

there. The JDR judge, who was making a statement about the status of the protective order, is

therefore a source legally sufficient to implicate due process concerns. Accordingly, the court erred

in finding that the JDR judge could not be a “government official” for purposes of the reasonable

reliance defense.

       Additionally, we find that appellant’s undisputed evidence of an affirmative assurance was

legally sufficient to support giving an instruction. See Miller, 25 Va. App. at 737 n.5, 492 S.E.2d at

488 n.5. “The reasonable reliance defense under Miller is available only where a defendant seeks to

determine if ‘the conduct giving rise to the conviction is lawful’ and the source gives ‘affirmative

assurance’ that it is.” Claytor v. Commonwealth, 62 Va. App. 644, 655, 751 S.E.2d 686, 691

(2013) (quoting Miller, 25 Va. App. at 738, 492 S.E.2d at 488). In Claytor, this Court found the

affirmative defense did not apply where the defendant subjectively interpreted a court order to have

unconditionally reinstated his driving privileges. Id. at 655-56, 751 S.E.2d at 691. We noted that

the defendant “sought no determination of conduct,” and therefore, “the court had no occasion to

give an ‘affirmative assurance’ that such conduct was permissible.” Id. “[T]he Due Process Clause

is not implicated simply because a defendant misreads or misunderstands a court order.” Id. at 656,

751 S.E.2d at 691.

       Here, Zuniga specifically requested dismissal of the protective order, and the JDR judge

responded that all matters were dropped. Although the order stating that “all petitions [are]

dismissed” did not specifically reference the protective order, other evidence corroborated the

judge’s verbal assurance. Appellant and Zuniga left the JDR hearing together freely, without

intervention from law enforcement that appellant was violating a protective order. When appellant

was later found in possession of the firearm and asked about the protective order, he told police that

                                                 -7-
it had been dismissed. Zuniga’s December 2016 motion to dismiss the protective order stated that

both she and appellant thought it had already been dissolved.

       In contrast to Claytor, appellant not only relied on the court’s order, but more importantly,

on the court’s verbal dismissal of all matters after Zuniga specifically requested dismissal of the

protective order. This case is more analogous to Miller, in which we found the content legally

sufficient to invoke due process concerns because the defendant expressly asked for and received

information about the offense at issue. Miller, 25 Va. App. at 741, 492 S.E.2d at 489-90. The

evidence was similarly sufficient here: appellant sought and received an affirmative assurance that

the protective order was no longer active and, therefore he was no longer subject to its express

prohibition against possessing a firearm.

       The issue of whether appellant’s reliance on this affirmative assurance from a government

official was reasonable and in good faith is a question of fact to be determined by the jury, based on

the totality of the circumstances. See id. at 737, 492 S.E.2d at 487-88. Because the court

erroneously concluded that the JDR judge was not a government official, appellant was not

permitted to instruct the jury on his affirmative defense when more than a scintilla of evidence

existed in support of the instruction. Accordingly, we reverse and remand the case for retrial, if the

Commonwealth be so advised.

                                                                              Reversed and remanded.




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