                        COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Felton and Kelsey
Argued at Richmond, Virginia


JAVON MONTRELL BATTLE
                                           MEMORANDUM OPINION * BY
v.   Record No. 3019-01-2                JUDGE WALTER S. FELTON, JR.
                                              DECEMBER 31, 2002
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                    Margaret P. Spencer, Judge

          Gregory W. Franklin, Assistant Public
          Defender (Office of the Public Defender, on
          briefs), for appellant.

          Michael T. Judge, Assistant Attorney General
          (Jerry W. Kilgore, Attorney General, on
          brief), for appellee.


     Javon Battle was convicted in a bench trial of assaulting a

police officer in violation of Code § 18.2-57(C).      On appeal, he

contends that (1) the evidence was insufficient to support his

conviction because his resistance to Officer Brereton's illegal

seizure was lawful; and (2) the trial court erred in failing to

suspend the final judgment to allow it to reconsider the case

and render a decision on the merits.    We affirm.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                          I.   BACKGROUND

                          A.   THE OFFENSE

     At approximately noon on March 16, 2001, Officer William C.

Brereton of the Richmond Police Department was on patrol in the

Gilpin Court area when he came in contact with Battle.     Officer

Brereton spotted Battle and two other males, Mr. Whitaker and an

unnamed male, on the second floor landing of a building on

Federal Street.   As he drove his police car past the building,

he made eye contact with the three causing them to "move[] back

away into the shadows of the landing."      Officer Brereton parked

his police car around the corner where it was no longer visible

from the landing and approached Battle, Whitaker, and the

unnamed male on foot.   He was investigating the possibility that

all three were trespassing and that Battle was truant from

school.

     The buildings in the Gilpin Court area were clearly marked

with Richmond Redevelopment and Housing Authority ("RRHA") "No

Trespassing" signs.   Alone, Officer Brereton approached Battle,

Whitaker, and the unnamed male.    He was in uniform and

displaying his badge of authority.      As he approached, he told

them he needed to speak to them.   He asked if any of them lived

in that building.   Battle did not respond.    However, Whitaker

stated his girlfriend lived there.      When asked which apartment,

Whitaker could not provide an answer.     At that time, Officer



                                - 2 -
Brereton allowed the unnamed male, whom he knew, to leave so he

would only "have to deal with two people."

     Subsequently, Battle attempted "two or three times to walk

away."   Officer Brereton had to raise his voice and tell Battle

he needed to stay where he was.    Battle continued to walk at

which point Officer Brereton told them he was going to walk them

down to the police car to check their names for warrants and to

determine if they lived there.    Officer Brereton walked them to

the car, holding the bottom of their shirts.   When they arrived

at the car he asked Battle and Whitaker to place their hands on

the car in order for him to pat them down for weapons to ensure

his safety.

     Whitaker attempted to walk away.    When Officer Brereton

tried to pull Whitaker back, Battle took off at a full run.

Still holding Battle by the shirt, Officer Brereton pulled

Battle back.   Battle turned toward him and began punching and

scratching Officer Brereton's hand and arm.    Officer Brereton

was cut, resulting in scars from the altercation.   Battle then

began punching Officer Brereton in the chest at which time he

got Battle on his back, on the ground.   While attempting to flip

Battle on his stomach to handcuff him, Battle began kicking

Officer Brereton in his legs, chest, and groin.

     During the struggle, Battle screamed for Officer Brereton

to "get the f*** off me."   He then began to scream that "this

cop is beating me.   Somebody come over here and help me."

                                 - 3 -
Battle then reached into his pants pocket for something Officer

Brereton believed was a weapon.   Officer Brereton attempted to

pull Battle's hand out of his pocket, but could not.     As a

result, he drew his service weapon.     Officer Brereton then

ordered Battle to take his hand out of his pocket.     Battle would

not and continued fighting him.   Officer Brereton re-holstered

his service weapon and tried to keep Battle's hand in his

pocket.   He also attempted to handcuff Battle's other hand.

Battle continued screaming for help.

     At that point, Officer Brereton looked up and noticed

approximately a hundred people had gathered.     He stated that

during the struggle someone shoved him from behind, which

allowed Battle to get to his feet.      Officer Brereton tackled

Battle, and several bottles were thrown from the crowd.     Battle

continued to fight, kicking Officer Brereton in the legs, chest,

and groin.   Officer Brereton then attempted to spray Battle with

mace, but failed because someone in the crowd warned Battle.

Battle covered his eyes and managed to knock the mace canister

from Officer Brereton's hand.   Battle was once again able to get

to his feet and charged Officer Brereton.     Battle attempted to

tackle Officer Brereton by grabbing him behind the knees with

his head between the officer's legs.     As a result, Officer

Brereton deployed his asp and struck Battle once on the back of




                                - 4 -
his legs. 1    Battle fell to his knees, then got back up.     He again

attempted to tackle Officer Brereton.      Officer Brereton struck

him again in the back of the legs.

     The crowd began to move closer, and threats were made from

the crowd.     Officer Brereton turned his attention to the crowd

and told them to get back.      Battle got to his feet, and the

struggle continued.      Officer Brereton grabbed Battle by his

clothing, but he was able to pull out of his two shirts and his

jacket.    Battle fled, and Officer Brereton pursued him a short

distance down St. John Street.      However, Officer Brereton had to

halt his pursuit because the crowd began chasing him.        He called

for backup and turned his attention toward the crowd.

     Officer Brereton was able to determine that Battle was not

a resident of Gilpin Court, but that he had a grandmother that

lived nearby on Hill Street.      He and other officers proceeded to

Hill Street and found Battle, wearing the same pants but a

different shirt.      Battle was arrested and charged with

assaulting a police officer, in violation of Code § 18.2-57(C).

              B.   TRIAL AND MOTION TO RECONSIDER AND VACATE

     At his bench trial, Battle testified in his own behalf.

Battle stated that Officer Brereton initially referred to him as

"Shawn."      He claimed he told Officer Brereton that Shawn was not

his name and he attempted to walk away.      He admitted attempting


     1
       An asp is a tactical, expandable baton used by the police,
similar in nature to a traditional nightstick.

                                   - 5 -
to get away several times afterwards.    Battle claimed that

Officer Brereton attempted to slam him on the car trunk, but he

landed on the ground instead.    Officer Brereton then pinned him

to the ground by placing his knees in his back.     Battle further

claimed that Officer Brereton had him by the collar of his shirt

and was choking him.

     Battle admitted struggling with Officer Brereton, but

denied ever kicking him, hitting him in the hand or chest,

calling out for help, or telling Officer Brereton to "get the

f*** off me."    Battle also denied having his hand in his pocket

or having drugs in his pocket.    However, he admitted that on the

same day he struggled with Officer Brereton, he was charged with

possessing six rocks of crack cocaine and later pleaded guilty

to the charge.   Battle further admitted that he did not live in

Gilpin Court.

     Battle was found guilty of assaulting a police officer.

The court entered a final conviction and sentencing order on

October 9, 2001.   On October 24, 2001, Battle filed a motion to

reconsider and vacate his conviction.    The motion cited recent

authority in support of his motion to set aside the conviction

based on his assertion that he was legally resisting detention

that was not supported by reasonable suspicion. 2   The motion was


     2
       Battle cited, what was then, the recently decided cases of
Harris v. Commonwealth, 262 Va. 407, 551 S.E.2d 606 (2001); Hill
v. Commonwealth, 37 Va. App. 1, 553 S.E.2d 529 (2001), rev'd,
264 Va. 541, 570 S.E.2d 805 (2002); and Hicks v. Commonwealth,

                                 - 6 -
heard on October 25, 2001.     The court stated it would take the

matter under advisement and directed Battle's attorney to

provide the court with the transcript of the trial proceedings.

The following colloquy ensued:

           MS. McCONNELL [Battle's attorney]: And in
           that case will you stay the 21 days?

           THE COURT: Yes. The motion was filed prior
           to the 21-day period.

           MS. McCONNELL:    Thank you very much.

On October 25, 2001, the trial court entered an order stating

the motion was taken under advisement.     It did not, however,

suspend the twenty-one days or vacate the final judgment order.

The sentencing order became final upon the expiration of the

twenty-one days.

                   II.   SUFFICIENCY OF THE EVIDENCE

     We first consider whether the evidence was sufficient to

support Battle's conviction of assaulting a police officer.

           When the sufficiency of the evidence is
           challenged on appeal, it is well established
           that we must view the evidence in the light
           most favorable to the Commonwealth, granting
           to it all reasonable inferences fairly
           deducible therefrom. The conviction will be
           disturbed only if plainly wrong or without
           evidence to support it.

Jones v. Commonwealth, 13 Va. App. 566, 572, 414 S.E.2d 193, 196

(1992).   Battle contends that the evidence was insufficient




36 Va. App. 49, 548 S.E.2d 249 (2001), aff'd on other grounds,
264 Va. 48, 563 S.E.2d 674 (2002).

                                 - 7 -
because he was resisting an unlawful detention by Officer

Brereton.   Assuming, without deciding, that Battle was the

subject of an unlawful detention, he possessed no right to use

force to resist the detention or "pat down" search.    The recent

Supreme Court decision in Commonwealth v. Hill, 264 Va. 541, 570

S.E.2d 805 (2002), is determinative on this issue.

     In Hill, the defendant was indicted for assault and battery

of a law enforcement officer.   Hill was the subject of a "pat

down" search by a police officer to determine if he was carrying

a weapon.   During the pat down, the officer noticed a bulge in

Hill's right pants pocket.   As the officer attempted to pat down

the pocket, Hill pushed the officer's hand away.    The officer

again attempted to pat down the right pants pocket, and Hill put

his hand in that pocket.   When the officer grabbed Hill's hand

and removed it, Hill turned and tried to run away.    In the

process, he struck the officer in the mouth with his open hand,

splitting the officer's lip.    A panel of this Court determined

that Hill had been illegally detained and that the force used in

resisting that detention was lawful.    Hill v. Commonwealth, 37

Va. App. 1, 9, 553 S.E.2d 529, 533 (2001).

     Reversing our decision, the Supreme Court held that a

person does not have the right to use force to resist an

unlawful detention or "pat down" search.     Hill, 264 Va. at 548,

570 S.E.2d at 809.   The Court reasoned that



                                - 8 -
          [b]ecause a detention is, by its nature, a
          brief intrusion on an individual's liberty,
          the provocation resulting from an illegal
          detention is far less significant than the
          provocation that attends an illegal arrest.
          Thus, recognition of a right to resist an
          unlawful detention would not advance the
          rationale supporting the common law right to
          use reasonable force to resist an unlawful
          arrest, but would only serve to increase the
          danger of violence inherent in such
          detentions.

Id. at 548, 570 S.E.2d at 808-09.

     Regardless of whether Battle's detention was unlawful or

not, he was not entitled to use force to resist the detention.

Thus, the evidence was sufficient beyond a reasonable doubt to

sustain his conviction of assaulting a police officer.

             III.    FAILURE TO SUSPEND FINAL JUDGMENT

     We next consider whether the trial court erred in failing

to suspend the final judgment to allow the court to consider a

post-trial motion.   Rule 1:1 states in pertinent part:

          All final judgments, orders, and decrees,
          irrespective of terms of court, shall remain
          under the control of the trial court and
          subject to be modified, vacated, or
          suspended for twenty-one days after the date
          of entry, and no longer. . . . The date of
          entry of any final judgment, order, or
          decree shall be the date the judgment,
          order, or decree is signed by the judge.

Battle argues that he was denied due process by the trial

court's failure to make good on its ruling to suspend the final

judgment order.   We disagree.




                                 - 9 -
        In Berean Law Group, P.C. v. Cox, 259 Va. 622, 528 S.E.2d

108 (2000), the trial court entered an order on September 24,

1998, stating that the defendant's demurrers would be sustained

and Cox's action against the defendants dismissed unless Cox

filed an amended motion for judgment on or before September 17,

1998.    Subsequent to the September 1998 order, the circuit court

agreed orally during a phone conference with all counsel to

permit Cox to file an amended motion for judgment on a date

later than the date specified in the September 24, 1998 written

order.    On November 16, 1998, Cox filed the amended motion for

judgment.    The defendants filed a motion to reject and dismiss

Cox's amended motion for judgment arguing that more than

twenty-one days had elapsed from the entry of the September 24,

1998 order.    The trial court considered counsel's arguments and

in an April 1999 order, permitted Cox to nonsuit his action.

Id. at 624-25, 528 S.E.2d at 109-10.

        On appeal, the Supreme Court held that allowing Cox to

nonsuit his action was in error.    According to the Court, the

circuit court lost control of the September 24, 1998 order

pursuant to Rule 1:1.    No written order was entered that

modified, vacated, or suspended the September 24, 1998 order.

It is true that there was an oral agreement to permit Cox to

file an amended motion for judgment after the specified date in

the September 24, 1998 order.    However, "the circuit court's



                                - 10 -
oral ruling cannot nullify its written final order, and it was

incumbent upon the plaintiff to submit timely a written order to

the circuit court suspending, modifying, or vacating the

September 24, 1998 order . . . ."     Id. at 111, 528 S.E.2d at

627.

       As in Cox, no written order suspending, modifying, or

vacating the twenty-one day period was entered prior to

expiration of the twenty-one days.      The trial court lost control

over the final order on October 30, 2001, twenty-one days after

its entry.    The fact the trial court orally agreed it would

suspend the final judgment in this case is of no consequence

since the trial court's oral ruling cannot nullify its written

order.   It was Battle's responsibility to submit a timely

written order to the trial court suspending, modifying, or

vacating the October 9, 2001 order.

       Although Battle procedurally defaulted in failing to submit

a written order to the trial court suspending the final order,

that issue is rendered moot by the fact that he properly

preserved for appeal the issue of justifiable resistance to an

illegal detention.   That issue is disposed of in this opinion.

As a general rule, "'[m]oot questions are not justiciable and

courts do not rule on such questions to avoid issuing advisory

opinions.'"    In re Times-World Corp., 7 Va. App. 317, 323, 373

S.E.2d



                               - 11 -
474, 477 (1988) (quoting United States v. Peters, 754 F.2d 753,

757 (7th Cir. 1985)).

     The judgment of the trial court is affirmed.

                                                       Affirmed.




                             - 12 -
