COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Huff, J udges Humphreys and O’Brien Argued at Fredericksburg, Virginia

NICHOLAS GABRIEL PARKER DAVIS OPINION BY v. Record No . 0825-17-4 JUDGE MAR Y GRACE O’BRIEN MAY 15, 2018 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FAUQUIER COUNTY Jeffrey W. Parker, Judge Kevin J. Gerrity, Deputy Public Defender, for appellant. Eugene Murphy, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
A jury convicted Nicholas Gabriel Parker Davis (“appellant”) o f possessing a firearm while subject to a protective order, i n violation of Code § 18.2-308. 1:4(B). At trial, a ppellant asserted a due process defense, arguing that he reasonably relied on infor mation from the Fa irfax Juvenile and Domestic Relations District Cour t (“JDR court”) that the protec tive order was no longer in effect. On appeal, he contends that the trial court erred in denying hi s motion to strike and refusing his proffered jury instruction on the affirmative defense of reason able reliance. B ecause we find that the court erred in determining t hat the defense did not apply, we reverse. BACKGROUND The undisputed evidence establis hed that, on Oct ober 12, 2016, while appellant was parked at a McDonald’s restaurant, a s heriff’s deputy observed an AR-1 5 rifle on the backseat of his car. Appellant explained that he had been to a local shooting range and that the gun belonged to his friend. The deputy checked appe llant’s informat ion through dis patch and learned that appellant was the subject of a protective order. When the deputy told appell ant about the protective order,PUBLISHED- 2 - appellant responded, “That was dismissed.” The deputy arrested appellant for possession of a firearm while subject to a protective order. Eight months earlier, on February 8, 2016, appellant’s wife, Li liana Zuniga, obtained a protective order in the JDR court. The order, issued pursuant to Code § 16.1-279.1, prohibited appellant from having any contact with Zuniga or their minor ch ild, and it granted Zuniga custody of the child “until further order of the court.” The protectiv e order also stated: Pursuant to Code of Vir ginia § 18.2-308.1:4, [appellant] shall not purchase or transport any firearm while this order is in effect

. . . . Either party may at any time file a motion with the court reque sting a hearing to dissolve or modify this order; however, this order r emains in full force and effect unless and until dissolved or modified by the court. A specific case number was listed on the order, and the attache d certificate of service indicated that appellant was personally served with the order o n February 9, 2016. Appellant and Zuniga appeared pro se in the JDR court on Feb ruary 18 for a “status hearing.” On that date, the judge signed an order reflecting t hat “[p]etitioner wishes to non-suit all petitions” and “[ a ] ll petitions [are] dismissed.” (Emphasis added). The order liste d three case numbers and had boxes checked in dicating the type s of cases hea rd: “custody,” “child support,” and “spousal support.” The order neither addressed the protect ive order nor referred to its specific case number. Following appellant’s arrest, on December 28, 2016, Zuniga wro te a letter to the JDR court and requested that the protective order be dismissed. In the l etter, Zuniga wrote, “Both [of us] thought the order was dropped du e to our court [appearance] bac k in January or February.” The JDR court entered an order dissolving the protective order on J anuary 11, 2017. Zuniga testified at appellant’s criminal trial. She stated tha t, prior to the February 18 hearing in JDR court, she decide d to dissolve the protective or der and dismiss th e other petitions because “we both agreed to work o n our marriage and to fix ever ything for the baby.” According to- 3 - Zuniga, she asked the J DR judge if “everyth ing against [appella nt] – child support, custody of the baby and the protective order” c ould “be dropped,” and the JDR judge responded that “[a]ll matters against [appellant] have been dr opped.” Appellant and Zuniga l eft the courthouse together, took a family vacation, and remained reconciled at the time of trial. Appellant also testified that following the February 18 hearin g, he and Zuniga “both thought [the protective order] was dropped.” He stated that at the JDR hearing, Zuniga “as ked the judge to drop everything, the custody, th e restraining order, the spousa l support, [and] just to let us fix it.” According to appellant, he did not know that the protective ord er was still in effect u ntil his arrest on October 12, 2016. At the conclusion of the evide nce, appellant moved to strike a nd argued that a conviction would violate his due process ri ghts because he reasonably reli ed on informatio n from the JDR court that the protective order wa s dismissed. The court denie d the motion, rulin g that the defense did not apply because “[w]e don’ t have any official agency givi ng advice to the defendant as to not having to comply with the terms of the protective order[,] and I don’t have anything from the judge saying that the protectiv e order was dissolved.” Appellant offered a jury instruc tion on the affirmative defens e of reasonable reliance, which he had adapted from Miller v. Co mmonwealth, 25 Va. App. 727, 49 2 S.E.2d 482 (19 97). The court refused the instruction, ruling t hat the defense did not apply because the JDR judge did not qualify as a “government official” who is “charged by law with responsi bility for defining permissible conduct with respect to the o ffense at issue” under Miller, 25 Va. App. at 739, 49 2 S.E.2d at 489. The court further ruled that a court speaks through its orders, and the February 18 JDR order was unambiguous and did not addre ss the protective order. During deliberations, the jury asked the following question: “If we believe [appellant] thought the protective order was dismissed in February 2016, wo uld that constitute r easonable doubt- 4 - and nullify the weapons possessio n charge?” The court responde d: “The jury has to apply the instructions submitted for guidance in deciding this case.” Th e jury found appellant guilty and recommended a one-dollar fine.
ANALYSIS The decision to grant or deny proffered jury instructions rest s within the so und discretion of the trial court. Sarafin v. C ommonwealth, 288 Va. 320, 325, 76 4 S.E.2d 71, 74 (2 014). The Court’s “sole responsibility i n reviewing [jury ins tructions] is to see that the law has been clearly stated and that the instructions cover all issues which the evidence fairl y raises.” Swisher v. Swisher, 223 Va. 499, 503, 290 S.E.2d 856, 858 ( 1982). Instructions must be sup ported by “more than a mere scintilla of evidence.” Herbin v. Commonwealth , 28 Va. App. 17 3, 181, 503 S.E .2d 226, 230 (1998) (quoting Gibs on v. Commonwealth, 21 6 Va. 412, 417, 219 S .E.2d 845, 849 (1975)). “If a proffered instruction finds any s upport in credible evidence, i ts refusal is reversible error.” McClung v. Commonwea lth, 215 Va. 654, 657, 212 S.E.2d 290, 293 (1975). Appellant concedes that he possessed a firearm while subject t o a protective order, but argues that he had a constitutiona l due process right to reason ably rely on affirmative assurances by a government official that the protective order had been dismis sed. He asserts th at he was entitled to a jury instruction on his aff irmative defense because he pre sented evidence that the JDR judge stated “all matters . . . have b een dropped,” and entered an or der indicating that “all petitions [are] dismissed.” We have recognized that a due process defense is available to a defendant who is on trial “for reasonably and in good faith doing that which he was told he could do.” Mille r, 25 Va. App. at 737, 492 S.E.2d at 487. The defen se is based on the premise th at “convicting an individual who has reasonably relied on the advice of a state actor is so fundamentally unfair as to raise due process concerns.” Id. at 739, 492 S.E .2d at 488. “The defendant bear s the burden of establishing the- 5 - affirmative defense,” and establi shing “as a threshold matter, the legal sufficiency of the content and source of the information receive d.” Id. at 737 , 492 S.E.2d at 487-88. “The application of the defense then requires a factual determination whether the defen dant’s reliance upon the information received was reasonable a nd in good faith.” Id. Citing Miller, this C ourt articulated the t hree requirements t o successfully raise a due process defense in Branch v. Comm onwealth, 42 Va. App. 665, 593 S.E.2d 835 (2004). A defendant must present evidence: 1) that he was assured that the conduct giving rise to the conv iction was lawful; 2) that the assura nce was given by a “government official,” i.e. , “a public officer or bo dy charged by law with responsibility for defi ning permissible con duct with respect to the offense at issue”; and 3) that , based on the t otality of the circumstances, reliance upon the advice was reasonable and in g ood faith. Id. at 671, 593 S.E.2d at 837 ( quoting Miller, 25 Va. App. at 7 38-39, 745, 492 S. E.2d at 488-89, 491). In Miller, we reversed a convic tion for possessing a firearm b y a convicted felon because the defendant had been advised by his probation officer that he cou ld lawfully possess a muzzle-loading rifle for hunting. 25 Va. App. at 729-30, 4 92 S.E.2d at 484. At issue was whether the probation officer qualified as a “governme nt official” who was “charged b y law with responsibility for defining permissible conduct with respect to the offense at iss ue.” Id. at 739, 49 2 S.E.2d at 489. Because a probation officer’s a uthority necessarily requires an interpretation of permissible conduct by a probationer, we ruled that “Miller’s probation officer was . . . a source legally sufficient to invoke the Due Process Clause a s a bar to his prosecution and c onviction.” Id. at 745, 492 S.E.2d at 491. See also Palmer v. Commonw ealth, 48 Va. App . 457, 464-66, 632 S.E.2d 611, 614-15 (2006) (holding that a juvenile’s Nor th Carolina probation officer was a source legally sufficient to invoke- 6 - the due process clause , because a statute authorized out-of-sta te probation officers to serve as adjuncts to the Virginia system). Here, the court denied appellant’s request for a “reasonable r eliance” instruction because it found that the JDR judge was not a “government official” who co uld give an affirmative assurance that the protective order was dismissed. The court stated: I don’t think a judge is a “gov ernment official” as used in [th e Miller] opinion. A government official . . . i s someone such as a probation officer or a police officer or maybe a Commonwealth’s attorney, or someone otherwise charged with duties to enforce the law but no t in the same scope as a judge would be in terms of administering th e law.

. . . . So I don’t believe that we have a government official charged by law with t he responsibility for defining legal conduct. Judges just don’t sit around and define lega l conduct. We adjudicate cases . We don’t give advisory opinions and recommendations to individuals as to how they should c omport themselves. However, case law recognizes t hat judges have a duty to interp ret and apply the law and therefore their statements ca n implicate the re asonable relianc e defense. See United States v. Brady, 710 F. Supp. 290, 294-95 (D. Co lo. 1989) (holding that due proc ess precluded a conviction for possessing a weapon as a felon, after a judge advised the defen dant that he could use a gun for hunting and trapping), cited with approval in Miller, 25 Va. App. at 740 , 492 S.E.2d at 489. Judges “define permissible co nduct” under the law and enforce complian ce. Miller, 25 Va . App. at 739, 492 S.E.2d at 489. “The case fo r allowing the due process defe nse when the advice is given by a judge is . . . compelling.” Brady, 71 0 F. Supp. at 295. Because of the unique role of the judiciary in interpreting the law, many courts have recognized that it “would be an act of ‘intole rable injustice’ to hold criminally lia ble a person who had engaged i n certain conduct in reasonable reliance on a judicial opinion instructing that such conduct is legal.”- 7 - Id. (quoting Kratz v. Kratz, 477 F. Supp. 463, 48 1 (E.D. Pa. 19 79)). See id. (collecting cases). Here, the protective order was entered in the JDR court and sub ject to enforcement and modification there. The JDR judge, who was making a statement about the sta tus of the protective order, is therefore a source legally sufficient to implicate due process concerns. Accordingly, the court erred in finding that the JDR judge c ould not be a “government offici al” for purposes of the reasonable reliance defense. Additionally, we find that appellant’s undisputed evidence of an affirmative assurance was legally sufficient to support gi ving an instruction. See Mille r, 25 Va. App. at 737 n.5, 492 S.E.2d at 488 n.5. “The r easonable reliance defen se under Miller is avai lable only where a defendant seeks to determine if ‘the conduct givingrise to the conviction is lawf ul’ and the source gives ‘affirmative assurance’ that it is.” Clayt or v. Commonwealth, 62 Va. App. 6 44, 655, 751 S.E.2d 686, 691 (2013) (quoting Mille r, 25 Va. App. at 738, 492 S.E.2 d at 488). In Claytor, this Court found the affirmative defense did not appl y where the defe ndant subjectiv ely interpreted a court order to have unconditionally reinsta ted his driving privi leges. Id. at 655- 56, 751 S.E.2d at 691. We noted that the defendant “sought n o determination of conduct,” and therefo re, “the court had no occasion to give an ‘affirmative assurance’ t hat such conduct was permissib le.” Id. “[T]he Du e Process Clause is not implicated simply because a defendant misreads or misund erstands a court order.” Id. at 656, 751 S.E.2d at 691. Here, Zuniga specifically reque sted dismissal of the protectiv e order, and the JDR judge responded that all matters were dropped. Although the order st ating that “all petitions [are] dismissed” did not specifically r eference the protective order, other evidence corroborated the judge’s verbal assurance. Appellant and Zuniga left the JDR he aring together freely, without intervention from law enforcement that app ellant was violating a protective order. When appellant was later found in possession of the firearm and asked about th e protective order, he told police that- 8 - it had been dismissed. Zuniga’s December 2016 motion to dismis s the protective order stated that both she and appellant thought it had already been dissolved. In contrast to Claytor, appella nt not only relied on the court ’s order, but more importantly, on the court’s verbal dismissal of all matters after Zuniga spe cifically requested dismissal of the protective order. This case is more analogous to Miller, in wh ich we found the content legally sufficient to invoke due process concerns because the defendant expressly asked for and received information about the offense at issue. Mil ler, 25 Va. App. at 741, 492 S.E.2d at 489-90. The evidence was similarly sufficient here: appellant sought and r eceived an affirmative assurance that the protective order was no longer active and, therefore he was no longer subject to its express prohibition against po ssessing a firearm. The issue of whether appellant’s reliance on this affirmative assurance from a government official was reasonable and in good faith is a question of fact to be determined by the jury, based on the totality of the circumstanc es. See id. at 7 37, 492 S.E.2d at 487-88. Because the court erroneously concluded that the J DR judge was not a government o fficial, appellant was not permitted to instruct t he jury on his affir mative defense when more than a scintilla of evidence existed in support of the instr uction. Accordingly, we reverse and remand the case for retrial, if the Commonwealth be so advised. Reversed and remanded.