When I started this “blawg” I indicated that I would concentrate on summarizing and commenting on the published opinion of the Court of Appeals of Virginia, with occasional sojourns into the vast trove of unpublished opinions. I have been somewhat remiss in that latter mission, and have decided that it is time to rectify that circumstance. Let’s begin by heading back to December 6, 2022 and the decision in Horan v. Commonwealth. The circuit court convicted Horan of assault and battery of a law enforcement officer, in violation of Code § 18.2-57(C), attempting to disarm a law enforcement officer, in violation of Code §§ 18.2-57.02 and 18.2-26, trespassing, in violation of Code § 18.2-119, disorderly conduct, in violation of Code § 18.2-415, attempting to prevent his arrest, in violation of Code § 18.2-460(E), and public intoxication, in violation of Virginia Beach local ordinance 23-22. In addition to these charges, Horan was acquitted of assault, failure to provide identification to law enforcement, and obstruction of justice.
As you can probably guess, the underlying incident involved Horan having visited an establishment that serves adult beverages. What you may not have guessed is that Horan conceded that he was already several sheets to the wind upon arriving at the restaurant in the afternoon after leaving his job at a local brewery, suggesting that perhaps he had been sampling the product. In any case, Horan get into a brouhaha (or perhaps brew-haha) with the bartender and eventually “fell asleep” at the bar.
Horan refused the bartender’s request that he vacate the premises, but agreed to do so at the request of the manager. Except that he didn’t. While it is not entirely clear how, the bartender came into possession of Horan’s wallet, which she gave to the manager, who then emerged from his office to find several other customers from attempting to restrain Horan from assaulting the bartender. Now there is an interesting side note that the circuit court found the bartender’s testimony to be incredible – but nonetheless found the testimony of the other patrons and the manager sufficient to convict Horan, which makes one wonder exactly what the bartender said on the stand that was inconsistent with this other evidence, which included Horan throwing his sunglasses at her and calling her sexual and racial slurs.
Eventually, the police arrived, and Horan immediately complied. No, I’m kidding, of course. Horan, despite being handcuffed, continued to struggle and knock the police and another patron to the ground. At one point, Horan placed his hand on one of the officers’ service weapon and tugged at it. The weapon’s security strap was engaged, preventing Horan from removing the weapon. Horan, testifying on his own behalf, admitted to touching the weapons, but claimed he was merely “feeling around” to find something to allow him to steady his balance.
While the Court of Appeals, Judge Huff joined by Judges O’Brien and White, have no difficulty in affirming the rest of Horan’s conviction, they find the evidence insufficient to support the conviction attempting flee arrest. The Court reasons that Horan was never verbally advised that he was being placed under arrest and was never outside the officers’ “immediate control” despite his breaking free from their grasp when knocking them to the ground.
I am going to express some surprise that the Court did not find that this was a disputed issue of fact to be resolved in the light most favorable to the Commonwealth. While it is true that the officer’s never said “You are under arrest,” Code § 18.2-460(E) stated that “arrest” can arise as a result of “(i) the officer applies physical force to the person, or (ii) the officer communicates to the person that he is under arrest.” The officers definitely applied physical force to Horan, and he definitely tried to break away from that arrest. Perhaps the Court of Appeals is applying the Lynyrd Skynyrd “three steps rule”?
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