                  COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Willis and Elder
Argued at Salem, Virginia


FREDRICK SHAFT PRICE
                                         MEMORANDUM OPINION * BY
v.   Record No. 1628-99-3               JUDGE SAM W. COLEMAN III
                                             OCTOBER 10, 2000
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
                      James F. Ingram, Judge

          Joseph R. Winston (Elwood Earl Sanders, Jr.,
          Appellate Defender; Public Defender
          Commission, on briefs), for appellant.

          Marla Graff Decker, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     Fredrick Shaft Price was convicted in a bench trial of

possession of cocaine with intent to distribute and felonious

assault and battery of a police officer.    On appeal, Price

argues that the trial court erred by denying his motion to

suppress the cocaine and that the evidence is insufficient to

support his assault and battery conviction.   We disagree and

affirm the convictions.




     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
                          I.   BACKGROUND

     Police Officers Matthew Walker and J.W. McLaughlin were on

foot patrol at approximately 10:30 p.m. when they encountered a

vehicle with its rear passenger door open "sitting in the middle

of the street in the lane of traffic."      The vehicle was

approximately three or four feet from the curb.     The officers

observed another car approach, which had to go around the

vehicle because it was stopped in the road.     The officers

observed a person get in the stopped vehicle and the vehicle

proceeded toward them.   The officers stopped the driver of the

vehicle, intending to give the driver a citation for impeding

the flow of traffic.

     Officer McLaughlin stood beside the driver's door and

gathered information from the driver.    Officer Walker went to

the passenger side of the vehicle where another individual was

sitting in the front passenger seat.    The defendant, Price, was

sitting in the back seat behind the passenger.     Officer Walker

noticed what he testified to as an open beer bottle protruding

from a brown paper bag between Price's legs.     Walker asked Price

for the bottle and, as Price handed Walker the bottle, Price

opened the back door of the vehicle.    Walker closed the door and

instructed Price to roll down the window so that Walker could

obtain information from Price as to his name and social security

number.   While Walker was attempting to obtain the information


                               - 2 -
from Price, Price "tried to jump out of the car and threw the

door open."   Walker, who was standing "directly in front of the

door" speaking with the defendant, was "struck" by the door as

it "flew open" and was "knocked back."         Walker "grabbed hold of

the door" to keep from falling.      He tried to shut the car door,

but Price was "already half-way out."      Walker "grabbed hold" of

Price as Price exited the car and tried to flee, and a struggle

ensued between them.    Walker and McLaughlin were able to subdue

Price and handcuff him.      Price was arrested for assaulting a

police officer.

     Walker conducted a search incident to arresting Price and

found $198 in cash in Price's pants pocket and two baggies

containing an off-white rock-like substance in his jacket

pocket.   Officer McLaughlin searched Price's book bag and found

digital scales and several razors.      The rock-like substance was

analyzed and determined to be cocaine.

                              II.   ANALYSIS

                        A.   Motion to Suppress

     Price argues that the trial court erred by denying his

motion to suppress.    He argues that the officers had no

reasonable basis to suspect that beer was in the bottle until

after they seized it.    In other words, he claims that the

evidence was insufficient to cause a police officer to

reasonably suspect that he possessed an open container of beer.


                                - 3 -
Accordingly, Price asserts that when Walker demanded the bottle,

that action constituted an illegal search and seizure for Fourth

Amendment purposes, which action was prior to the time the

officer had reason to suspect that the bottle contained beer.

Additionally, Price argues, even if the officer had reason to

suspect that Price possessed an open container of beer, a

violation of the open container ordinance is a misdemeanor not

punishable by confinement and, therefore, under Knowles v. Iowa,

525 U.S. 113 (1998), the officer's request that Price remain in

the vehicle after the bottle was seized constituted an unlawful

detention which led to the unlawful search which led to the

discovery of the cocaine. 1

     When we review a trial court's denial of a suppression

motion, "[w]e view the evidence in a light most favorable to

. . . the prevailing party below, and we grant all reasonable

inferences fairly deducible from that evidence."   Commonwealth

v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991)

(citation omitted).   "[W]e are bound by the trial court's


     1
       On appeal, Price "assumes," without conceding, that the
Danville ordinance, prohibiting an open alcoholic beverage
container in public in Danville, prohibits possession of an open
container in a vehicle on a public street. He does not contend
on appeal that his possession of an open container of beer would
not be a violation of the Danville ordinance. Accordingly, we
are not called upon to, and do not, decide whether possession of
an open container of beer by a passenger in the back seat of a
car on a public street violates Danville's open container
ordinance.


                              - 4 -
findings of historical fact unless 'plainly wrong' or without

evidence to support them."    McGee v. Commonwealth, 25 Va. App.

193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (citing Ornelas

v. United States, 517 U.S. 690, 699 (1996)).    "However, we

consider de novo whether those facts implicate the Fourth

Amendment and, if so, whether the officers unlawfully infringed

upon an area protected by the Fourth Amendment."    Hughes v.

Commonwealth, 31 Va. App. 447, 454, 524 S.E.2d 155, 159 (2000)

(en banc) (citing McGee, 25 Va. App. at 198, 487 S.E.2d at 261).

     "A warrantless search is per se unreasonable and violative

of the Fourth Amendment of the United States Constitution,

subject to certain exceptions."    Tipton v. Commonwealth, 18 Va.

App. 370, 373, 444 S.E.2d 1, 3 (1994) (citation omitted).

However, searches made by law enforcement officers incident to

arrest are permitted as an exception to the warrant requirement.

See United States v. Robinson, 414 U.S. 218, 235 (1973).       In

Robinson, the United States Supreme Court noted that the

authority to conduct a search incident to arrest is based on the

need to disarm the suspect in order to take him into custody and

the need to preserve evidence for later use at trial.    See id.

at 234.   The Court stated that a custodial arrest involves

"danger to an officer" because of "the extended exposure which

follows the taking of a suspect into custody and transporting

him to the police station."    Id. at 234-35.


                              - 5 -
     Here, the officers lawfully stopped the vehicle to issue

the driver a citation for impeding the flow of traffic.     Viewing

the evidence in the light most favorable to the Commonwealth,

the evidence shows that, while Walker was standing outside the

passenger-side door, he observed what he perceived was an open

beer bottle.   Walker testified that when he approached the

passenger-side door, he "noticed [Price] with a beer between his

legs."    Upon seeing the clear bottle protruding from the bag,

Walker readily recognized the object as an open Corona beer

bottle.   Walker described the bottle and what it contained.

Although Price contends that, upon viewing the record as a

whole, it is apparent that the officer was not aware that the

bottle contained beer until after he seized and examined it,

from our reading of the record, in the light most favorable to

the Commonwealth, that conclusion does not necessarily follow.

Based on the foregoing reading of the record, the officer had

reasonable suspicion that Price had an open container of beer

between his legs.   Therefore, the officer was lawfully permitted

to detain Price while he investigated the ordinance violation.

See Terry v. Ohio, 392 U.S. 1 (1968).    "'[I]f there are

articulable facts supporting a reasonable suspicion that a

person has committed a criminal offense, that person may be

stopped in order to identify him, to question him briefly, or to

detain him briefly while attempting to obtain additional


                              - 6 -
information.'"   Parker v. Commonwealth, 255 Va. 96, 104, 496

S.E.2d 47, 52 (1998) (quoting Hayes v. Florida, 470 U.S. 811,

816 (1985)).   Thus, regardless of the fact that Walker could not

search Price incident to an offense for which he only could

issue a citation, see Knowles, 525 U.S. 113, the officer could

lawfully detain Price to investigate the Danville ordinance

violation and to issue a summons.

     In addition, the officer was permitted to briefly detain

Price, as a passenger in the vehicle, pending the completion of

the traffic stop of the vehicle and the driver.   See Harris v.

Commonwealth, 27 Va. App. 554, 561-63, 500 S.E.2d 257, 260-61

(1998) (holding that law enforcement officers are permitted,

following a lawful traffic stop, to detain the occupants of the

vehicle, pending the completion of the traffic stop); see also

Hatcher v. Commonwealth, 14 Va. App. 487, 491-92, 419 S.E.2d

256, 258-59 (1992) (holding that in effecting a traffic stop, an

officer, to ensure his safety and to maintain control of a

potentially hazardous situation, may briefly detain not only the

driver but the passengers as well).   In Maryland v. Wilson, 519

U.S. 408, 415 (1997), the United States Supreme Court held that

"an officer making a traffic stop may order passengers to get

out of the car pending completion of the stop."   The Court

reasoned that:

          danger to an officer from a traffic stop is
          likely to be greater when there are

                             - 7 -
            passengers in addition to the driver in the
            stopped car. While there is not the same
            basis for ordering the passengers out of the
            car as there is for ordering the driver out,
            the additional intrusion on the passenger is
            minimal.

Id. at 414-15.   In Wilson, the Court extended its holding from

Pennsylvania v. Mimms, 434 U.S. 106 (1977) (per curiam), in

which it held that "a police officer may as a matter of course

order the driver of a lawfully stopped car to exit his vehicle,"

to passengers of the vehicle.   519 U.S. at 410.   The Court in

Wilson found that the "same weighty interest in officer safety

is present regardless of whether the occupant of the stopped car

is a driver or passenger."    Id. at 413.

     Thus, Walker lawfully detained Price by directing that he

remain in the vehicle because he was entitled to do so while he

investigated the open container violation and because, under the

circumstances, he could require as a safety precaution that

Price remain in the vehicle while the driver was being issued a

citation.   Because Walker's intrusion on Price's privacy rights

and freedom of movement was minimal when weighed against the

officers' safety, the brief detention was lawful.

     After Walker shut the car door, effectively ordering him to

remain in the vehicle, Price "threw" the door open a second

time, hitting Walker with the car door as Price attempted to

leap out of the car.   Thereafter, Price was subdued and

handcuffed for assaulting a police officer with the car door.

                              - 8 -
The officer did not search Price incident to issuing him a

citation for having an open alcoholic beverage container.

Rather, the officer searched Price incident to his lawful arrest

pursuant to Code § 18.2-57(C) for felonious assault of a police

officer.   See Robinson, 414 U.S. at 235.    Accordingly, we hold

that the trial court did not err by denying Price's motion to

suppress the cocaine.

                  B.    Sufficiency of the Evidence

     Price argues that the evidence is insufficient to support his

conviction for assault and battery.    Price, relying on Haywood v.

Commonwealth, 20 Va. App. 562, 458 S.E.2d 606 (1995), argues that

the evidence failed to show that he had the requisite intent.    He

asserts that he was merely attempting to flee the scene.

     "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) (quoting Martin v.

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

"The judgment of a trial court sitting without a jury is entitled

to the same weight as a jury verdict, and will not be disturbed on

appeal unless plainly wrong or without evidence to support it."

Beck v. Commonwealth, 2 Va. App. 170, 172, 342 S.E.2d 642, 643

(1986) (citations omitted).




                               - 9 -
        To sustain a conviction under Code § 18.2-57(C), the

Commonwealth must prove that Price assaulted an individual that he

knew or had reason to know was a police officer engaged in the

performance of his duties.    "An assault and battery is an

unlawful touching of another.     It is not necessary that the

touching result in injury to the person.     Whether a touching is

a battery depends on the intent of the actor, not on the force

applied."     Gnadt v. Commonwealth, 27 Va. App. 148, 151, 497

S.E.2d 887, 888 (1998) (citation omitted).     "'Intent is a state

of mind that may be proved by an accused's acts or by his

statements and that may be shown by circumstantial evidence.'"

Wilson v. Commonwealth, 249 Va. 95, 101, 452 S.E.2d 669, 673-74

(1995) (citations omitted).    "[A] person is presumed to intend the

immediate, direct, and necessary consequences of his voluntary

act."    Nobles v. Commonwealth, 218 Va. 548, 551, 238 S.E.2d 808,

810 (1977) (citation omitted).

        Price's reliance on Haywood is misplaced.   In Haywood, the

defendant had a verbal altercation with another individual at a

park.     After the altercation, the defendant got into his truck

and sped off toward the park exit.      The victim promptly called

the police.     Three officers in separate vehicles tried to stop

the defendant, who was traveling down the middle of the road at

a high rate of speed.     Two officers, individually, set up

roadblocks by placing their vehicles in the defendant's path.


                               - 10 -
Each time the defendant approached a roadblock, he failed to

slow down.   The officers had to take evasive action to avoid a

collision.   The defendant was convicted of two counts of

attempted capital murder of a police officer.    We reversed the

convictions, finding that the Commonwealth's evidence failed to

exclude the reasonable hypothesis of innocence, that being the

defendant was merely attempting to avoid apprehension.       We

noted, however, that "[t]here was no evidence that [the

defendant] ever swerved or aimed his truck to hit the police

cars when they pulled out of his path or that he turned his

truck around in an attempt to hit the police cars after passing

by them."    Id. at 567, 458 S.E.2d at 608-09.

     Here, the evidence viewed in the light most favorable to the

Commonwealth proves that, although Price attempted to flee, he

"threw the door open," striking Walker who was standing directly

in front of the door.   See Moody v. Commonwealth, 28 Va. App.

702, 708, 508 S.E.2d 354, 357 (1998) (finding that, although the

defendant "plainly sought to flee," the evidence also proved

that he had the further intent to run down the victim with his

vehicle in the process of fleeing).    Because Walker was directly

in front of the door, the only possible way Price could have

exited the car through the door was by first striking Walker.     The

fact finder could reasonably infer that Price intended to strike

Walker with the car door in order to flee the scene.   We,


                              - 11 -
therefore, find that the evidence is sufficient to support the

conviction.

     Accordingly, we affirm the trial court's ruling denying

Price's motion to suppress and affirm his conviction for felonious

assault and battery of a police officer.

                                                         Affirmed.




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