                                COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Beales and Powell
Argued at Richmond, Virginia


BRANDON JARELL LOVE
                                                               MEMORANDUM OPINION * BY
v.      Record No. 1795-09-2                                   JUDGE RANDOLPH A. BEALES
                                                                   OCTOBER 26, 2010
COMMONWEALTH OF VIRGINIA


                       FROM THE CIRCUIT COURT OF AMELIA COUNTY
                                  Thomas V. Warren, Judge

                  Evelyn G. Tucker for appellant.

                  Virginia B. Theisen, Senior Assistant Attorney General (Kenneth T.
                  Cuccinelli, II, Attorney General, on brief), for appellee.


        A jury convicted Brandon Jarell Love (appellant) of the misdemeanor offense of obstruction

of justice, pursuant to Code § 18.2-460(A). 1 On appeal, appellant raises two questions: 1.)

whether the trial court erred in denying his motion to strike the evidence as insufficient to support

the obstruction conviction; and 2.) whether the trial court fully and accurately instructed the jury.

Underlying both of appellant’s questions is his position that, in order to convict a person of violating

Code § 18.2-460(A), the Commonwealth must prove that a defendant did more than simply run

away from the police after being told to stop. We agree with appellant’s underlying premise that,

under existing Virginia law, evidence that a suspect ran away from the police, without doing




        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
        1
         Appellant was also charged with felony vehicular eluding, pursuant to Code § 46.2-817.
The jury could not reach a unanimous verdict regarding this offense, however, and so the trial
court declared a mistrial as to this charge.
anything else, is insufficient as a matter of law to convict a person under Code § 18.2-460(A).

Therefore, we reverse his conviction.

                                          BACKGROUND

        Because the parties are fully conversant with the record in this case and because this

memorandum opinion carries no precedential value, we forego a full discussion of the evidence

presented to the jury and instead recite only those facts relevant and necessary to the parties’

understanding of our holding. We review this evidence in the light most favorable to the party that

prevailed below (here, the Commonwealth), as we are required to do in an appeal questioning the

sufficiency of the evidence to support a factfinder’s decision to convict a defendant. Walton v.

Commonwealth, 255 Va. 422, 425-26, 497 S.E.2d 869, 871 (1998).

        The relevant evidence here proved that, after refusing to stop his car in response to a police

car’s lights and siren, appellant drove up to his mother’s house, jumped out of his car, and ran.

Officer McDonald, who had been following appellant’s car down the road, then stopped his patrol

car, got out, and yelled for appellant to “stop because he was under arrest.” Although he denied

hearing the officer, appellant clearly knew as he ran around the house and then into the woods that

the law-enforcement officer wanted him to stop. Officer McDonald testified at trial that he was

never able to touch appellant and that appellant never threw anything at or near the officer to

impede his progress, nor was there evidence that he threatened the officer in any manner.

                                             ANALYSIS

        Appellant was charged with violating Code § 18.2-460(A). 2 This statute states, in pertinent

part, that a person commits a Class 1 misdemeanor if he “knowingly obstructs” a police officer in


        2
          Appellant was not charged with resisting arrest. See Code § 18.2-479.1(A) (“Any
person who intentionally prevents or attempts to prevent a law-enforcement officer from lawfully
arresting him, with or without a warrant, is guilty of a Class 1 misdemeanor.”). Therefore, we do
not address whether the facts presented to the jury would have supported a conviction under this
statute prohibiting the resisting of arrest.
                                                -2-
the performance of his duties or if he refuses “to cease such obstruction when requested to do so” by

a police officer. Code § 18.2-460(A). Therefore, in order to successfully prosecute a charge under

this statute, the Commonwealth must prove that a defendant “obstructed” an officer.

         The Code does not define “obstruct.” However, in 1925, the Supreme Court analyzed the

phrase “obstruct any officer” in the context of prohibition statutes. Jones v. Commonwealth, 141

Va. 471, 126 S.E. 74 (1925). In that case, the police chased Jones’s car “at a terrific rate of

speed” for four miles. Id. at 476, 126 S.E. at 76. During the chase, as the police car got within

150 feet of his car, Jones climbed into the back seat and threw a bag of barley out of the car

window. Id. The police then had to swerve their car in order to avoid hitting the bag. Id. The

police finally stopped Jones’s car, which someone else was driving, and charged Jones with

obstructing justice. Id. Jones testified at his trial that he threw the bag out of the car because he

believed that transporting the barley was a violation of the prohibition laws. Id. at 477, 126 S.E.

at 76.

         In holding that Jones’s conviction should be reversed, the Supreme Court found, “The

fact that the accused sought to escape the officer by merely running away was not such an

obstruction as the law contemplates.” Id. at 478, 126 S.E. at 76 (citing State v. LeBlanc, 98 A.

119 (Me. 1916)). In discussing the definition of “obstruct,” the Court cited the following:

                 “To constitute obstruction of an officer in the performance of his
                duty, it is not necessary that there be an actual or technical assault
                upon the officer, but 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 and forcible or threatened means. It
                means to obstruct the officer himself not merely to oppose or
                impede the process with which the officer is armed.”

Id. at 478-79, 126 S.E. at 77 (quoting 2 Hascal R. Brill, Cyc. of Criminal Law § 1156 (1923)).

The Supreme Court then rejected the Commonwealth’s argument that throwing the bag of barley

into the road constituted obstruction, finding that this evidence did not prove that Jones had the
                                                 -3-
intent to obstruct the officers because the bag would not “naturally result in the wreck or

obstruction of an automobile one hundred and fifty feet in the rear of the obstacle.” Id. at 479,

126 S.E. at 77.

       In Atkins v. Commonwealth, 54 Va. App. 340, 678 S.E.2d 834 (2009), this Court applied

the principles expressed by the Supreme Court in Jones. In Atkins, Officer Bennett saw Atkins’s

car in a parking lot, and he also observed Atkins talking to Officer Crowder. Id. at 341, 678

S.E.2d at 835. Officer Bennett discovered that the license plate on Atkins’s car was stolen, so he

told Officer Crowder to “detain” Atkins. Id. Instead of waiting for Officer Crowder to act,

“Atkins ran into the woods.” Id. at 342, 678 S.E.2d at 835. Based on his actions, Atkins was

convicted of violating Code § 18.2-460.

       In reversing Atkins’s conviction, this Court explained:

                  “[O]bstruction of justice does not occur when a person fails to
                  cooperate fully with an officer or when the person’s conduct
                  merely renders the officer’s task more difficult” or “frustrat[es]
                  [his or her] investigation.” Id. at 429, 431, 505 S.E.2d at 389, 390.
                  Thus, “an accused’s hiding or seeking ‘to escape [an] officer by
                  merely running away [is] not such an obstruction as the law
                  contemplates.’” Id. at 430, 505 S.E.2d at 389 (quoting Jones, 141
                  Va. at 478, 126 S.E. at 76).

Id. at 343, 678 S.E.2d at 835 (quoting Ruckman v. Commonwealth, 28 Va. App. 428, 505 S.E.2d

338 (1998)) (alterations in original).

       Given the foregoing analysis of the term “obstruct,” we must determine whether the

evidence here was sufficient to support the factfinder’s determination that appellant violated Code

§ 18.2-460(A).

       “While it is the duty of every citizen to submit to lawful arrest,” Jones, 141 Va. at 478,

126 S.E. at 76, the Commonwealth must prove that a defendant did more than run from an officer

in order to convict him of engaging in the actual conduct prohibited by Code § 18.2-460(A).

Nothing in this record suggests that appellant did more than run from the officer. Given the
                                                  -4-
Supreme Court’s analysis in Jones and this Court’s decision in Atkins, we must therefore conclude

that appellant’s failure to stop running away from the officer did not constitute obstruction of justice

under Code § 18.2-460(A). 3

                                           CONCLUSION

        Based on the Supreme Court’s analysis in Jones and this Court’s decision in Atkins,

evidence that a suspect ran away from the police, without doing anything else, is insufficient as a

matter of law to convict a person under Code § 18.2-460(A). Consequently, in this case, the

Commonwealth did not prove beyond a reasonable doubt that appellant “obstructed” a

law-enforcement officer pursuant to Code § 18.2-460(A). 4 Therefore, we must reverse and dismiss

appellant’s conviction for obstruction of justice under Code § 18.2-460(A).

                                                                              Reversed and dismissed.




        3
          The Commonwealth asks this Court to base its opinion on a footnote in Atkins that
states, “No evidence suggested that Atkins willfully disobeyed a command by the officer to stop,
and thus, we need not address case law finding this circumstance dispositive.” 54 Va. App. at
343 n.3, 678 S.E.2d at 835 n.3. However, even though Officer McDonald yelled to the fleeing
appellant in this case to stop because he was under arrest, we find that the binding precedent of
this Court’s decision in Atkins and of the Supreme Court’s decision in Jones governs the facts
presented here, as Atkins also clearly ran from the police because he knew that they wanted to
detain him, and as Jones clearly knew that the police wanted to stop his vehicle.
        4
         Because we find the evidence was insufficient as a matter of law for a conviction under
Code § 18.2-460(A), we do not need to address appellant’s second question presented regarding
the proper instruction to the jury.
                                             -5-
