                        COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Frank and Clements
Argued at Richmond, Virginia


KEVIN GERALD TUCKER
                                           MEMORANDUM OPINION * BY
v.   Record No. 1697-00-1                   JUDGE ROBERT P. FRANK
                                                JULY 10, 2001
COMMONWEALTH OF VIRGINIA AND
 CITY OF VIRGINIA BEACH


         FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                     Edward W. Hanson, Jr., Judge

             Annette Miller (Office of the Public
             Defender, on brief), for appellant.

             Megan C.Z. Capoldo, Assistant Commonwealth's
             Attorney (Harvey L. Bryant, III,
             Commonwealth's Attorney, on brief), for
             appellee.


     Kevin Gerald Tucker (appellant) was convicted in a bench

trial of assault and battery, in violation of Code § 18.2-57, and

disturbing the peace, in violation of Virginia Beach City Code

§ 23-10. 1   On appeal, appellant contends the trial court erred in

finding the evidence sufficient to convict him of the disturbing

the peace charge.    Finding no error, we affirm.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
       Appellant challenges only the disturbing the peace
conviction.
                            I.   BACKGROUND

     "'On appeal, we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.'"      Archer v. Commonwealth,

26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation omitted).

     So viewed, the evidence proved three police officers

responded to a 911 call at appellant's home.     When they arrived,

they encountered a panicked woman fleeing the house.     Officer J.T.

Randall approached the house and asked appellant to come outside

to talk.    Appellant opened the door screaming excitedly, waving a

knife in front of him.

     Officer Randall told appellant to drop the knife "because he

still had the knife straight out and was moving it around

quickly."    Appellant continued in his excited state, screaming,

making irrational statements and holding the knife out, bringing

it up and down.   Officer Randall testified, "I got a distance

between myself and [appellant], and I pleaded with him to drop the

knife, and [appellant] kept stating to me that he was eating a

steak."    Officer Kelley observed appellant being very loud and

boisterous and could hear him yelling as soon as he exited his

patrol car.   Appellant calmed down somewhat, but "[h]e kept

holding [the knife] out, putting it down," and Officer Randall had

to knock the knife out of appellant's hand.     Officer Randall

stated, "He was not willing to drop the knife voluntarily, so I

had to physically take the knife away from him and take it out of

                                 - 2 -
his hand."   Officer Randall attempted to place appellant under

arrest for disturbing the peace, but appellant continued to yell

very loudly, and Officers Fortin and Kelley had to assist in the

arrest.

     Once they had appellant in custody, Officers Fortin and

Kelley began to walk appellant toward the curb while Officer

Randall retrieved the police car.    During that walk, appellant

fought with the officers and kicked Officer Fortin, striking her

on her upper left thigh.   When questioned, appellant stated he had

threatened Officer Randall because he was "pissed" that he had

spilled coffee on himself and that he had the knife because he had

a temper problem.   When asked why he kicked Officer Fortin,

appellant stated he has a real bad temper and that he was sorry.

                           II.    ANALYSIS

     Appellant contends that because police officers routinely

respond to situations where the public's peace is being disturbed,

he should not be convicted of disturbing the peace of a law

enforcement officer.   Appellant argues, "To charge someone with a

crime for what amounts to a commonplace element associated with

their jobs does not form an adequate basis of a disturbing the

peace charge."   Appellant cites no authority to support his

contention, nor have we found any.

     "It shall be unlawful and a Class 1 misdemeanor for any

person to disturb the peace of others by violent, tumultuous,

offensive, or obstreperous conduct or by threatening, challenging

                                 - 3 -
to fight, assaulting, fighting or striking another."    City of

Virginia Beach Code § 23-10.

     "The plain, obvious, and rational meaning of a statute is

always preferred to any curious, narrow or strained construction;

a statute should never be construed so that it leads to absurd

results."   Branch v. Commonwealth, 14 Va. App. 836, 839, 419

S.E.2d 422, 424 (1992) (citations omitted).

     "'Where a statute is unambiguous, the plain meaning is to be

accepted without resort to the rules of statutory

interpretation.'"   Frazier v. Commonwealth, Dep't. of Social

Servs., Div. of Child Support Enforcement, ex rel. Sandridge, 27

Va. App. 131, 134, 497 S.E.2d 879, 880 (1998) (citation omitted).

     Nothing in the City Code exempts law enforcement officers

from protection from threatening or assaultive behavior.   It is

inconceivable that such should be legislative intent.

     Appellant's behavior did not consist merely of offensive,

profane or uncivil speech.

                 "[T]he First Amendment protects a
            significant amount of verbal criticism and
            challenge directed at police officers.
            'Speech is often provocative and
            challenging . . . . [But it] is nevertheless
            protected against censorship or punishment,
            unless shown likely to produce a clear and
            present danger of a serious substantive evil
            that rises far above public inconvenience,
            annoyance, or unrest.'"




                               - 4 -
Ford v. City of Newport News, 23 Va. App. 137, 143, 474 S.E.2d

848, 851 (1996) (quoting City of Houston v. Hill, 482 U.S. 451,

461 (1987) (citation omitted)).2

     In Ford, we wrote:

               The words uttered by the defendant,
          however offensive or rude, do not establish
          disorderly conduct. Although Officer Nowak
          testified that the defendant "[threw] his
          arms about in the air" and was "loud and
          boisterous," he made no threatening remarks,
          uttered no words that would reasonably incite
          a breach of the peace, or made no threatening
          movements toward the officers. While the
          defendant's remarks lacked civility and were
          impolite, loud, and persistent protestations
          about his treatment, his act of throwing his
          arms in the air could in no reasonable way
          cause or incite the officers to violence.
          There is simply no evidence in the record to
          support a reasonable belief that the
          defendant's conduct would cause a reasonable
          officer to respond with physical force or
          violence or that the officers considered the
          defendant's throwing his arms in the air to
          be an assault.

Id. at 144, 474 S.E.2d at 851.

     In Marttila v. City of Lynchburg, 33 Va. App. 592, 535 S.E.2d

693 (2000), we interpreted Ford:

               In our subsequent decision in Ford, 23
          Va. App. at 144, 474 S.E.2d at 851, we quoted
          extensively from Hill, recognizing, at least
          implicitly, its holding that police officers
          are, in fact, required to exercise a higher
          degree of restraint when confronted by
          language or conduct which is offensive but
          does not have a direct tendency to cause acts

     2
       While Ford involves the sufficiency of a disorderly
conduct conviction, its analysis is instructive as to
appellant's argument that law enforcement officers cannot be the
victims of breach of peace violations.

                                 - 5 -
          of violence by the person to whom,
          individually, the language or conduct is
          directed. Applying that standard to Ford's
          conviction for disorderly conduct, we held as
          follows: "There is simply no evidence in the
          record to support the reasonable belief that
          the defendant's conduct would cause a
          reasonable officer to respond with physical
          force or violence or that the officers
          considered the defendant's throwing his arms
          in the air to be an assault." Id. (emphasis
          added). Thus, our decision in Ford
          recognized and applied Hill's holding that
          the First Amendment requires properly trained
          police officers to exercise a higher degree
          of restraint when confronted by disorderly
          conduct and abusive language.

Id. at 601 n.5, 535 S.E.2d at 698 n.5.

     Here, appellant, armed with a knife, waved it up and down and

held it straight out, forcing the officer to knock the knife out

of his hand.

     "A breach of the peace is an act of violence or an act likely

to produce violence."   Taylor v. Commonwealth, 11 Va. App. 649,

653, 400 S.E.2d 794, 796 (1991) (citations omitted).

     At oral argument, the City conceded that appellant did not

assault Officer Randall, but that his violent, tumultuous,

offensive or obstreperous conduct "prompted this officer's

physical response to take the knife from appellant."   We agree.

     Obstreperous conduct is that which is resistant to "control

or restraint . . . with a show of noisy disorder."   Webster's

Third New International Dictionary 1559 (1993).

     The evidence was sufficient to prove that appellant disturbed

the peace by his conduct that forced the officer to use physical

                               - 6 -
force.   Finding no error, we affirm appellant's conviction of

disturbing the peace.

                                                          Affirmed.




                               - 7 -
Benton, J., dissenting.

     Kevin Gerald Tucker was convicted of disturbing the peace

of others in violation of the City's ordinance, which provides

as follows:

               It shall be unlawful and a Class 1
            misdemeanor for any person to disturb the
            peace of others by violent, tumultuous,
            offensive or obstreperous conduct or by
            threatening, challenging to fight,
            assaulting, fighting or striking another.

City of Virginia Beach Ordinance § 23-10.    The City argues that

the conviction was properly based on Tucker's behavior because

he was threatening, violent, offensive and obstreperous.

     The evidence proved that a police officer spoke to a woman

who ran from Tucker's house in a "state . . . of panic."    When

the officer "couldn't verify anything of the situation at hand,"

he went to Tucker's house and "banged on the door with [his]

flashlight."     As Tucker came to the door, the officer asked him

to come outside.    The officer testified that the following

occurred:

            Mr. Tucker came outside and was very
            excited, was yelling, screaming. He was
            very disheveled, had a lot of -- I don't
            know exactly what it was, but blotches on
            his shirt and on his pants and in his hands.

            Q:   Was he yelling anything in particular?

            A: What I can recall, he was just very
            excited. He was screaming. I don't know
            exactly what he was screaming at. At first
            nothing was directed at me. He was just
            screaming. I would assume that it was about
            the young lady that ran.

                                 - 8 -
     The officer testified that when he asked Tucker to drop the

steak knife Tucker was holding, Tucker "kept stating" that he

had been eating a steak.    The officer further testified as

follows:

           A: And he was screaming loudly. I really
           couldn't decide what he was screaming at,
           but he was just excited, kept bringing the
           knife out. He kept saying no as if he was
           trying to convince me of something, just
           making irrational statements. I really
           don't know what he was trying to tell me.
           He kept holding it out, putting it down.

           Q:    And what did you do in reaction to this?

           A: At this time I got Mr. Tucker calmed
           down somewhat. He was still trying to make
           statements to me. I didn't know what he was
           trying to tell me, and at that point he put
           the knife out. I knocked it out of his
           hand. Then I tried to place him under
           arrest.

     Tucker's behavior falls into two broad categories.       First,

he possessed a knife openly in the officer's presence.      The City

concedes, however, that Tucker's possession of the knife under

the circumstances of this case did not amount to an assault on

the officer. 3   Furthermore, it does not fulfill the other

elements of the ordinance.    The officer testified that Tucker

explained his conduct at the time by stating that he had been

eating a steak.    By the City's own evidence, Tucker was confused


     3
       Tucker was convicted of disturbing the peace and simple
assault and battery. The assault and battery conviction was not
challenged, but it was based on Tucker's struggle after he was
arrested.


                                 - 9 -
and distraught and gave no indication that he intended violence

against the officer with the knife.     From that evidence, it is

more likely that Tucker did not realize he had the knife or did

not realize its danger.   The evidence tends to prove the officer

knocked the knife out of Tucker's hand as a precaution against

accident.

     Second, Tucker spoke loudly to the officer.     Such speech,

however, carries constitutional protection.    "'Speech is often

provocative and challenging . . . . [But it] is nevertheless

protected against . . . punishment, unless shown likely to

produce a clear and present danger of serious substantive evil

that rises far above public inconvenience, annoyance, or

unrest.'"    Houston v. Hill, 482 U.S. 451, 461 (1987) (quoting

Terminiello v. Chicago, 337 U.S. 1, 4 (1949)).     See also Lewis

v. City of New Orleans, 415 U.S. 130 (1973).

     In Ford v. City of Newport News, 23 Va. App. 137, 474

S.E.2d 848 (1996), we held as follows:

            The words uttered by the defendant, however
            offensive or rude, do not establish
            disorderly conduct. Although [the officer]
            testified that the defendant "[threw] his
            arms about in the air" and was "loud and
            boisterous," he made no threatening remarks,
            uttered no words that would reasonably
            incite a breach of the peace, or made no
            threatening movements toward the officers.
            While the defendant's remarks lacked
            civility and were impolite, loud, and
            persistent protestations about his
            treatment, his act of throwing his arms in
            the air could in no reasonable way cause or
            incite the officers to violence. There is

                               - 10 -
           simply no evidence in the record to support
           a reasonable belief that the defendant's
           conduct would cause a reasonable officer to
           respond with physical force or violence or
           that the officers considered the defendant's
           throwing his arms in the air to be an
           assault.

Id. at 144, 474 S.E.2d at 851.

     The evidence in this case is similar to the evidence in

Ford.   It was insufficient to prove Tucker committed any "act of

violence or an act likely to produce violence" either by

gestures or words.   Taylor v. Commonwealth, 11 Va. App. 649,

653, 400 S.E.2d 794, 796 (1991).    I would hold, therefore, that

the evidence simply failed to prove Tucker's conduct fell within

the prohibition of the ordinance.   Thus, I would reverse the

conviction for disturbing the peace.




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