                      COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judge Lemons and
          Senior Judge Duff
Argued at Alexandria, Virginia


KNUT FREDRIKSEN, S/K/A
 KNUT E. FREDRIKSEN
                                         MEMORANDUM OPINION * BY
v.   Record No. 0732-98-4                 JUDGE CHARLES H. DUFF
                                              JUNE 22, 1999
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
                  Benjamin N. A. Kendrick, Judge

           John M. Tran (Tobin, O'Connor & Ewing, on
           briefs), for appellant.

           Leah A. Darron, Assistant Attorney General
           (Mark L. Earley, Attorney General, on brief),
           for appellee.


     Appellant contends that there was insufficient evidence

that he "impeded the police officer in the performance of her

duties."   Appellant further argues that the officer had no

authority to arrest him for refusing "to take the summons," that

his arrest was unlawful, that his refusal to take and sign the

summons "after identifying himself does not impede or obstruct a

police officer in the performance of her duties," and that he

had a right to resist the unlawful arrest.




    *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
     "On appeal, we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom."   Martin v. Commonwealth,

4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).   So viewed, the

evidence proved that Ida Bawaugh, a Code Enforcement Officer for

Arlington County, initiated a complaint against appellant for

violating a county ordinance.   After considering Bawaugh's

complaint, a magistrate issued a summons charging appellant with

violating the ordinance.

     On July 10, 1997, Officer Rosa Ortiz, while in uniform,

visited appellant's home to serve the summons.   Appellant was

standing in his driveway near his truck when Ortiz arrived.

Appellant acknowledged he was the person named on the summons.

After Ortiz "advised [him] she needed to serve the summons on

him . . . [appellant] stated that he did not want it" 1 and

ordered Ortiz off his property.   Ortiz repeated "that she had to

serve the summons on him," and appellant repeated, "'I don't

want it'" and he directed Ortiz "to leave it at the front door

or give it to his lawyer."   Appellant "again ordered [Ortiz] to

leave his property.   At that point, [appellant] picked up a

shovel and two plastic bags and took a step towards Officer

Ortiz."   Fearing for her safety, Ortiz grabbed appellant's

     1
      Quotations are from the statement of facts, there being
no transcript of the evidence in the record.



                                - 2 -
"forearms to prevent him from potentially hitting her with a

shovel."   Ortiz told appellant "that he was making this into a

big deal and that he does not want to assault a police officer."

Ortiz "advised [appellant] to drop the shovel and informed him

that he would be arrested if he did not accept the summons."

Appellant told Ortiz he did not care and he instructed her to do

what she had to do.   "At that point," appellant "pushed forward

with his arms" and Ortiz proceeded to handcuff him.     Ortiz

transported appellant to the police station where he was charged

with obstruction of justice.

     "At the conclusion of the case," appellant "moved for

acquittal on grounds the officer did not have the right to

require him to sign for the summons or do anything else in

accepting the summons."   He argued that he was wrongfully

arrested and, therefore, "acting in reasonable self-defense by

pulling away from the officer."   Appellant also contended that

Ortiz "could have" posted the summons on his door.

     "A law-enforcement officer may execute within his

jurisdiction a warrant, capias or summons issued anywhere in the

Commonwealth.   A warrant or capias shall be executed by the

arrest of the accused, and a summons shall be executed by

delivering a copy to the accused personally."    Code § 19.2-76

(emphasis added).   "The officer executing a summons shall

endorse the date of execution thereon and make return thereof to

the court to which the summons is returnable."    Id.

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     Code § 15.2-1704(A) invests local police officers "with all

the power and authority which formerly belonged to the office of

constable at common law" and holds them responsible for, inter

alia, "the preservation of peace and the enforcement of state

and local laws, regulations, and ordinances."      Code

§ 15.2-1704(B)(iii) authorizes local police officers to, inter

alia, "execute all warrants or summons as may be placed in his

hands by any magistrate for the locality and to make due return

thereof."

     Code § 8.01-296 prescribes the manner of serving process

upon natural persons "[i]n any action at law or in equity or any

other civil proceeding . . . for which no particular mode of

service is prescribed."    Under that code section, service must

be effected "[b]y delivering a copy [of the process] in writing

to the party in person."     Id.    The statute provides for

substituted service "[i]f the party to be served is not found at

his usual place of abode."     Id. (emphasis added).

     Code § 18.2-460 provides, in pertinent part:

            A. If any person without just cause
            knowingly obstructs a . . . law-enforcement
            officer in the performance of his duties as
            such or fails or refuses without just cause
            to cease such obstruction when requested to
            do so by such . . . law-enforcement officer,
            he shall be guilty of a Class 2 misdemeanor.

            B. If any person, by    threats or force,
            knowingly attempts to   intimidate or impede a
            . . . law-enforcement   officer, lawfully
            engaged in his duties   as such, . . . he


                                   - 4 -
          shall be deemed to be guilty of a Class 1
          misdemeanor.

     Armed with a valid summons issued by a judicial officer,

Officer Ortiz proceeded to the address listed on the summons.

After finding appellant at that address, Ortiz was required by

statute to personally serve appellant with the summons.   The

evidence proved that appellant refused personal service and

assumed an aggressive posture by brandishing a shovel and

pushing away from Ortiz while she tried to protect herself and,

at the same time, have him sign and accept the summons.   The

trial court could reasonably find that, by brandishing the

shovel and approaching Ortiz in a threatening manner, appellant

attempted to "intimidate or impede" Ortiz, who was lawfully

engaged in her duties.   Appellant's conduct obstructed Ortiz

from performing her duty in violation of Code § 18.2-460(B).

The Commonwealth's evidence was competent, was not inherently

incredible, and was sufficient to prove beyond a reasonable

doubt that appellant was guilty of the charged offense.

Appellant's contention that Ortiz should have posted the summons

is without merit because the Code requires personal service if

the recipient is present.   Appellant was present; therefore,

Ortiz was required to personally serve him with the summons.

     Despite appellant's contention that Ortiz was not

authorized to arrest appellant for refusing to take the summons,

appellant cited no case law, statute or rule prohibiting an


                               - 5 -
arrest for refusing service of process.       Our review of

authorities in Virginia likewise disclosed nothing addressing

the issue.    Therefore, we look to case law from other

jurisdictions.

     In Migliore v. County of Winnebago, 321 N.E.2d 476 (Ill.

Ct. App. 1974), police officers tried to serve a subpoena on

Migliore.    Migliore refused to tell the officers if he was the

person listed on the subpoena and ordered them to leave his

property.    Certain that the person was Migliore, one of the

officers touched Migliore's "arm with the subpoena, laid it on

the desk, and left the premises."        Id. at 478.   Later the

officers returned to Migliore's home where they met their

superior, a detective.    The detective "explained that they were

there to serve a civil subpoena" on the person named therein,

and, "if he did not tell them who he was, they would arrest him

for obstructing a police officer."       Migliore again ordered the

officers to leave the premises, and the police arrested him.

The Illinois Court of Appeals explained:

             At the time the officers attempted to serve
             the subpoena, they were under a legal duty
             to do so. If they failed to obey the
             command of the subpoena they could be held
             in contempt of court and also held liable
             for damages to the aggrieved party.

Id. at 478-79 (noting also that, upon execution, the officer

must complete the return).




                                 - 6 -
     In holding against Migliore, the court made the following

statement:

             A citizen also has legal duties: not to
             knowingly resist or obstruct a police
             officer in the performance of any authorized
             act; and not to knowingly resist or obstruct
             the authorized service of any civil process.
             Courts do not favor those who seek to evade
             service of summons. Resistance or
             obstruction may be passive as well as
             active. A citizen may be found guilty of
             resisting or obstructing a police officer in
             the performance of his duty merely by
             stating that he will not move on when
             requested to do so by a police officer.

Id. at 479 (holding that Migliore was under duty to comply with

officer's request) (citations omitted).

     Nothing in the statement of facts indicates that, during

the confrontation, Ortiz conveyed to appellant the nature of the

summons or other details as to the upcoming legal action.   Thus,

upon locating him at his home, she was required to provide him

with personal notice of the summons including the grounds for

the summons and other details.    Before Ortiz could convey to

appellant the necessary information and successfully carry out

her duty, appellant became aggressive, thereby precluding

successful service and a peaceful outcome.

     Moreover, despite a citizen's traditional common law right

to resist an unlawful arrest by using reasonable force, see

Foote v. Commonwealth, 11 Va. App. 61, 69, 396 S.E.2d 851, 856

(1990), we need not apply such an analysis because appellant was

not arrested for refusing to accept the summons.    Before Ortiz

                                 - 7 -
initiated any such arrest, appellant brandished a shovel and

approached Ortiz in a threatening manner causing her to fear for

her safety.    Therefore, appellant's attempt to intimidate Ortiz

by his aggressive actions preempted Ortiz from carrying out her

verbal threat to arrest appellant and impeded Ortiz, who was

"lawfully engaged in [her] duties."     Code § 18.2-460(B).

Because of appellant's conduct preceding any threatened arrest

by Ortiz and his aggressive conduct after the warning, his

arrest was lawful; therefore, appellant had no right to resist

that arrest.   He grabbed a shovel, assumed a threatening stance,

and approached Ortiz in a manner that the fact finder obviously

found aggressive.   Accordingly, appellant's conviction is

affirmed.

                                                          Affirmed.




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