COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Fe lton and Senior Judge Annunziata ∗ Argued at Alexandria, Virginia

MONEER R. ISHTIWI, S/K/A MOONER R. ISHTIWI MEMORANDUM OPINION ** BY v. Record No. 0734-04-4 J UDGE ROBERT J. HUMPHREYS JANUARY 11, 2005 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF FAIRFAX COUNTY Kathleen H. MacKay, Judge Mark J. Yeager (Law Offices of Mark J. Yeager, P.C., on brief), for appellant. Eugene Murphy, Assistant Attorn ey General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Appellant Moneer Ishtiwi appeals his convict ion, following a jury tria l, for obstruction of justice, in violation of Code § 18.2-460(C). Ish tiwi contends that the tr ial court erred in denying his motion to strike, arguing th at the Commonwealth’s evidence was insufficient to convict him of obstructing justice. For the reasons that follow, we disagree, and therefore affirm the judgment of the trial court. On September 26, 2002, Ishtiwi was involved in a traffic accident in Fairfax County. Officer Chad J. Ellis, a Fairfax County police officer, was called to the scene to investigate the

∗ Judge Annunziata participated in the hear ing and decision of this case prior to the effective date of her retirement on Decembe r 31, 2004 and thereafter by her designation as a senior judge pursuant to Code § 17.1-401.

** Pursuant to Code § 17.1-413, this opinion is not designated for publ ication. Moreover, as this opinion has no precedential value, we re cite only those facts necessary to our holding.- 2 - accident. Because Ishtiwi did not have proof of insurance for the car that he had been driving,

Officer Ellis asked Ishtiwi to “si gn a proof of insurance form . . . to send to the DMV.” Ishtiwi responded, “I’m not signing shit. I want to talk to my lawyer fi rst.” Ishtiwi then made a phone call, and Officer Ellis overheard Ishtiwi commenti ng, “There’s a nigger here saying that I have to sign this form, this proof of insurance.” After Ishtiwi hung up the phone, he told Officer Ellis, “I don’t trust you. You’re a piece of shit.” After a slight pause in the conversation, Ishtiwi told Officer Ellis, “You’re a fucking faggot,” and th at “You love me, you dream about me.” About three seconds later, he again said, “You’re a fucking faggot. You are – you’re nervous around me. Look at you standing there like a little girl.” 1

Ishtiwi then asked whether Officer Ellis was st ill investigating “that fake ID case.” Ellis responded, “[Y]es, [he] was.” Ishtiwi then as ked, “Am I on your list?” Officer Ellis responded, “I don’t know. I haven’t got computer forensics b ack.” Ishtiwi then told Officer Ellis, “If you come to my house, you’re going to get a dog bite .” Based on this interchange, Ishtiwi was indicted for obstruction of justice, in violation of Code § 18.2-460(C). At trial, Ellis explained that he was, at that time, conduc ting an investigation involving “individuals that were making fake ID’s, Virginia driver’s licen ses, within Fairfax County.” Although Ishtiwi was a suspect in that investigation, Officer Ellis “didn’t want to reveal to [Ishtiwi] that he was on [the] list [of suspects] be cause [Officer Ellis] was trying to keep that secret from each person whose houses [the police] were going to [investigate].” Officer Ellis also testified that, at the time of the incident, he was aware that Is htiwi kept two pit bulls at his

1 Ishtiwi eventually signed th e proof of insurance form, alt hough the record is not clear as to whether he signed it before or after asking Offi cer Ellis whether he was still investigating the fraudulent identification case.- 3 - home. Officer Ellis subsequently “made the decisi on not to go back to [Ishtiwi’s] house because it was not worth an officer being inju red, myself, or his dog or himself.” When the sufficiency of the evidence in a cr iminal case is challenged on appeal, we view the evidence and all reasonable inferences fairly de ducible from that evidence in the light most favorable to the Commonwealth, the party prevailing below. Walton v. Commonwealth , 255 Va. 422, 425-26, 497 S.E.2d 869, 871 (1988). “Great deferen ce must be given to the factfinder who, having seen and heard the witnesse s, assesses their credibility and weighs their testimony.” Id. at 426, 497 S.E.2d at 871. Thus, a trial court’s judgme nt will not be disturbed on appeal “unless it is plainly wrong or without evidence to support it.” Id. Code § 18.2-460(C) provides: If any person by threats of bodily harm or force knowingly attempts to intimidate or impede a judge, magistrate, justice, juror, witness, or any law-enforcement officer, lawfully engaged in the discharge of his duty . . . he shall be guilty of a Class 5 felony. Generally, obstruction of justice “does not require the defendant to commit an actual or technical assault upon the officer.” Craddock v. Commonwealth , 40 Va. App. 539, 552-53, 580 S.E.2d 454, 461 (2003); Love v. Commonwealth , 212 Va. 492, 494, 184 S.E.2d 769, 771 (1971). However, “there must be acts clea rly indicating an intention on th e part of the accused to prevent the officer from performing his duty, as to ‘obstr uct’ ordinarily implies opposition or resistance by direct action.” Craddock , 40 Va. App. at 553, 580 S.E.2d at 461 (internal quotations omitted); Ruckman v. Commonwealth , 28 Va. App. 428, 429, 505 S.E.2d 388, 389 (1998). Although words alone can support a convicti on for obstruction of justice, see Polk v.

Commonwealth , 4 Va. App. 590, 594, 358 S.E.2d 770, 772 (1987), those words generally must

contain some manner of a th reat intended to intimidate the police officer.- 4 - To establish that Ishtiwi violated Code § 18.2-460(C), the Commonwealth was therefore required to prove: (1) that Ishtiw i either issued a threat of bodily harm or used force; (2) in a knowing attempt to intimidate Officer Ellis; (3) who was lawfully engaged in the discharge of his official duties. Because the Commonwealth presented sufficient evidence of each of these three elements, we hold that the trial court di d not err in denying Ishtiwi’s motion to strike. First, Ishtiwi’s statement, “If you come to my house, you’re going to get a dog bite,” could reasonably be interpreted as a threat of bodily harm. The statement, when taken in context, constitutes a clear threat that, if Of ficer Ellis were to go to Ishtiwi’s home while investigating the fraudulent identification case, Ishtiwi would make sure that Officer Ellis received a physical injury in the form of a dog bite. Ishtiwi, however, contends that his statement did not constitute a threat of bodily harm because it is more akin to a generalized warning than a threat. Specifica lly, Ishtiwi asserts that the statement, “If you come to my house, you’re going to get a dog bite,” could reasonably be interpreted as a statement that, if Officer Ellis we re to visit Ishtiwi’s hou se, he should be careful to avoid being bitten by Ishtiw i’s dogs. The inferences that may be drawn from Ishtiwi’s statement, however, necessitate a comparison of the voice inflection and credibility of live witnesses’ testimony. These are matters that are better left to the fact finder, and we will not disturb those findings on appeal. See Ferguson v. Grubb , 39 Va. App. 549, 557, 574 S.E.2d 769, 772 (2003) (noting that, on appeal, the trial court’s findings are “p eculiarly entitled to respect for [it] saw the parties, heard the witnesses testify a nd was in closer touch with the situation than the [appellate] Court, which is limited to a review of the written record ” (internal quotations omitted)); cf. United States v. Hurst , 228 F.3d 751, 762 (6th Cir. 2000) ( noting that “[c]redibility determinations are integral” to determining “w hether a defendant obstr ucted or attempted to obstruct justice”).- 5 - Ishtiwi also contends that his statement di d not constitute a “threat” within the meaning

of the statute because it did not involve a threat of immediate harm. To qualify as a “threat of bodily harm” within the meaning of Code § 18.2-460(C), however, there is no requirement that

the statement involve a threat of immediate injury. See Keyes v. Commonwealth , 39 Va. App. 294, 301, 572 S.E.2d 512, 516 (2002) (“[A] threat is an avowed present determination or intent to injure presently or in the future .” (alteration in orig inal) (emphasis added) (internal quotations omitted)); Parnell v. Commonwealth , 15 Va. App. 342, 345, 423 S.E.2d 834, 836 (1992). 2 Also, because we have previously affirmed convictio ns based on conditional threats of future harm, requiring proof of a threat of imme diate harm would be contrary to our settled prec edent. See,

e.g. , Polk , 4 Va. App. at 592-93, 358 S.E.2d at 771-72 (a ffirming conviction for obstruction of justice based on the statements, “If I lose, I’ll get you some other way,” “I’m going to get you,” and “I’m going to get even”). Second, the evidence, when viewed in a light most favorable to the Commonwealth, also

establishes sufficient evidence from which the fact finder could have inferred that Ishtiwi issued

the threat with the intent to intimidate Officer El lis. Intent, like any element of a crime, may be proved by circumstantial evidence. Servis v. Commonwealth , 6 Va. App. 507, 524, 371 S.E.2d 156, 165 (1988). Here, the evidence indicates not only that Officer Ellis was involved in an ongoing investigation into fraudulen t identification, but that Ishtiw i was aware of Officer Ellis’ involvement in that investigation. Thus, the fact finder could have reason ably inferred that

2 Cf. State v. Edwards , 924 P.2d 397, 400 (Wash. Ct. App. 1996) (noting that the “ordinary meaning of ‘threaten’ clearly includes . . . future threats,” reasoning that “when one threatens to do something, he or she is not doi ng that thing at the ti me of communicating the threat,” and, therefore, “the pe rson making the threat communicates an intent to injure a person or property sometime in the futu re, immediate or remote”).- 6 - Ishtiwi issued the threat with the intent to intimidate Officer Ellis and dissuade him from investigating Ishtiwi in c onnection with that case. Ishtiwi, however, argues that Officer Ellis “had no present duty, or even intention, to go to Defendant’s house” and that, “without such du ty, [Ishtiwi’s] statement about his dogs cannot rise to an expression of [Ishtiwi’ s] intentions to bodily harm.” Ishtiwi concludes that he therefore lacked the present intention to commit an act of violence or force. When evaluating

whether a defendant’s actions fall within the ambit of Code § 18.2-460(C), however, our focus is not on the intent of the police officer, but rather, on the intent of the defendant. Even assuming that Officer Ellis had no present in tent to visit Ishtiwi, Ishtiwi ca nnot rely on the officer’s lack of present intent to negate his own. See Polk , 4 Va. App. at 593-94, 358 S.E.2d at 772 (“[I]t is the threats made by the offender, coupled with his intent, that constitute the offense.” (emphasis added)). Third, Officer Ellis explained that the fra udulent identification i nvestigation was being conducted pursuant to his official duties. Although Officer Ellis initially de tained Ishtiwi to have Ishtiwi sign the proof of insura nce form, the statute does not i ndicate that a law-enforcement officer can only be impeded in those duties in which he is presently engaged. Because Officer Ellis was, at the time, involved in a fraudulent identification investigation, he was lawfully engaged in “the discharge of his duty” even though his initial contac t with Ishtiwi did not specifically involve those duties. For these reasons, we hold that the trial cour t did not err when it denied Ishtiwi’s motion to strike, and we therefore affirm his conviction for obstruction of justice.

Affirmed.