                      COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Willis and Bray
Argued at Norfolk, Virginia

TROY LAMONT KEY

v.           Record No. 2139-94-1              OPINION BY
                                         JUDGE RICHARD S. BRAY
COMMONWEALTH OF VIRGINIA                   DECEMBER 5, 1995


          FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                     Robert B. Cromwell, Jr., Judge

            William F. Burnside, Assistant Public Defender,
            for appellant.
            Steven A. Witmer, Assistant Attorney General
            (James S. Gilmore, III, Attorney General, on
            brief), for appellee.



     Troy Lamont Key (defendant) was convicted by the trial court

for unlawfully wounding a law enforcement officer in violation of

Code § 18.2-51.1.    Defendant complains on appeal that the evidence

was insufficient to establish that the victim, a Virginia Beach

policeman employed as a part-time security guard at the time of the

offense, was performing the duties of a law enforcement officer.

Finding no error, we affirm the conviction.

     Under familiar principles of appellate review, we view the

evidence in the light most favorable to the Commonwealth, granting

to it all reasonable inferences fairly deducible therefrom.
Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721

(1988).    The findings of the trial court will not be disturbed

unless "plainly wrong," Commonwealth v. Grimstead, 12 Va. App.

1066, 1067, 407 S.E.2d 47, 48 (1991), and the burden is upon the

appellant to show reversible error.    Reynolds v. Commonwealth, 9

Va. App. 430, 436, 388 S.E.2d 659, 663 (1990).
     On the evening of January 23, 1994, Detective Douglas E.

Zebley of the Virginia Beach Police Department was employed as a

"part-time security" guard at the Friendship Inn in Virginia Beach.

Zebley was dressed in full police uniform, displaying his badge of

authority and equipped with "normal duty gear," including a

holstered sidearm and baton.   At approximately 1:30 a.m., Zebley

responded to a report of a "person asleep on the fifth floor" of

the hotel and discovered defendant sleeping on the floor adjacent

to the elevator.   Zebley woke defendant and noticed that his "eyes

were glassy," and he "looked a little bit out of it."   Using the

wall for support, defendant "stood up," and Zebley asked if he had

"a room at the hotel."   Zebley also advised defendant that, without

a room, he must leave the hotel or "be trespassing."
     Defendant did not respond to Zebley's inquiries and proceeded

"down a corridor" with no exits.   Zebley placed his hand on

defendant's shoulder and inquired, "Is your room down there?"

Defendant then "turned," answered, "F___ this," and assumed "a

fighting position" with "clinched . . . fists."   As Zebley removed

his baton from his "duty belt," defendant struck him in the mouth

with his right fist.   Zebley then repeatedly hit defendant about

the legs with the baton, instructing him "to go to his knees,"

"stop fighting," and advising that he was "under arrest."   However,

despite Zebley's commands, defendant's violent aggression persisted

for "eight to ten" minutes, during which defendant bit Zebley three

times.   Defendant continued to struggle until restrained by other

police officers summoned to assist Zebley.



                                - 2 -
     Code § 18.2-51.1 provides in pertinent part that
          [i]f any person unlawfully, but not maliciously
          . . . causes bodily injury to another by any
          means, knowing or having reason to know such
          other person is a law-enforcement officer . . .
          engaged in the performance of his public duties
          as a law-enforcement officer, he shall be
          guilty of a Class 6 felony . . . .


Defendant does not challenge the sufficiency of the evidence to

establish the requisite knowledge that Zebley was a law enforcement

officer.    Rather, he contends that Zebley was acting as a

privately-employed security guard during the incident and,

therefore, was not performing "public duties as a law-enforcement

officer."
     Code § 15.1-133.1 provides, in pertinent part, that
          [a]ny county, city or town may adopt an
          ordinance which permits law-enforcement
          officers and deputy sheriffs in such locality
          to engage in off-duty employment which may
          occasionally require the use of their police
          powers in the performance of such employment.
          Such ordinance may . . . delegate the
          promulgation of . . . reasonable rules and
          regulations [governing such activity] to the
          chief of the respective police departments
          . . . .


Accordingly, § 27-2(c) of the Virginia Beach City Code expressly

authorizes the chief of police to permit such "off-duty

employment," and police departmental "General Order" 91.02 approves

that activity.   This policy comports with Code § 15.1-138, which

requires that "[e]ach policeman shall endeavor to prevent the

commission . . . of offenses against the law . . .; shall detect

and arrest offenders against the same; shall preserve good order

. . .; and shall secure the [populace] from violence and . . .



                                 - 3 -
property . . . from injury."

     It is uncontroverted that Zebley initially approached the

defendant in furtherance of his duties as a security guard for the

hotel.   Defendant was asleep in a hallway, "glassy-eyed" and "out

of it," did not respond to Zebley's inquiries and admonishments,

and walked away from the officer.    Such circumstances clearly

provided articulable suspicion that defendant was committing a

criminal trespass and justified further investigation by Zebley.

Although Zebley encountered defendant while acting in a private

capacity, he was fully empowered by his public office to pursue an

investigation, detain defendant if necessary, and arrest if

justified. 1   See DePriest v. Commonwealth, 4 Va. App. 577, 585, 359

S.E.2d 540, 544 (1987), cert. denied, 488 U.S. 985 (1988).       The

coincidence of Zebley's private and public duties during the

encounter did not eclipse his authority and responsibility as a law

enforcement officer.

     Zebley was, therefore, "engaged in the performance of his

public duties as a law-enforcement officer" when attacked and

unlawfully wounded by defendant.    Accordingly, we affirm the

judgment of the trial court.
                                          Affirmed.




     1
      Defendant's argument on brief that he was unconstitutionally
seized by Zebley was not presented to the trial court and will not
be noticed on appeal. Jacques v. Commonwealth, 12 Va. App. 591,
593, 405 S.E.2d 630, 631 (1991) (citing Rule 5A:18).

                                 - 4 -
