COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, Alston and Senior Judge Willis Argued at Richmond, Virginia

MYCHILA DEBRA TABRON MEMORANDUM OPINION * BY v. Record No. 2147-09-2 JUDGE WILLIAM G. PETTY JULY 27, 2010 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Margaret P. Spencer, Judge Catherine French, Supervising Assi stant Public Defender (Office of the Public Defender, on brief), for appellant. John W. Blanton, Assistant Attorney General, (Kenneth T. Cuccinelli, II, Attorney Genera l, on brief), for appellee.
Following a bench trial, the trial court convi cted appellant Mychila Debra Tabron of one count of obstruction of justice in violation of Code § 18.2-460(A). Tabron now appeals this conviction, arguing first that the evidence was insufficient to suppor t her conviction. We agree and reverse her conviction. 1 In accord with well-settled appellate principles , “we review the evidence in the light most favorable to the Commonwealth, granting to it al l reasonable inferences fairly deducible therefrom.” Martin v. Commonwealth , 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). Because the parties are fully c onversant with the reco rd in this case and this memorandum opinion carries no precedential value, we recite only those facts a nd incidents of the proceedings

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.

1 Given our determination that the evid ence is insufficient to support Tabron’s conviction, we need not addre ss her second question presented.- 2 - as are necessary to the parties’ understanding of the disposition of these narrow questions presented on appeal. According to Code § 18.2-460, a person is gui lty of a Class 1 misdemeanor if she “knowingly obstructs . . . any law-enforcement offi cer, . . . in the performance of his duties as such or fails or refuses without just cause to cease such obstr uction when requested to do so by such . . . law-enforcement officer . . . .” Ou r Supreme Court has held that, while “it is not necessary” for the Commonwealth to prove “an act ual or technical assa ult upon the officer” to convict a defendant for obstruction, “there must be acts clearly indi cating an intention on the part of the accused to prevent the officer from perfor ming his duty, as to obstruct ordinarily implies opposition or resistance by direct action.” Ruckman v. Commonwealth , 28 Va. App. 428, 429, 505 S.E.2d 388, 389 (1998) (quoting Jones v. Commonwealth , 141 Va. 471, 478-79, 126 S.E. 74, 77 (1925)) (citation and internal quotation marks om itted). The Commonwealth must prove that the defendant “obstruct[ed] the officer himself, not merely . . . oppos[ed] or imped[ed] . . . the officer . . . .” Id. Accordingly, “fail[ing] to cooperate fully with an officer” or engaging in conduct that “merely renders the officer’s task more difficult” is not proscribed by Code § 18.2-460(A). Id. Here, the record discloses that while Tabron may have made her arresting officer’s task more difficult, she did not actually prevent him from performing his law enforcement duties. On April 30, 2009, Officer Sheer a nd Officer Carter, both of th e City of Richmond Police Department, were assisting in the investigation of a series of break-ins. The detective in charge of the investigation instructed Officer Sheer and his partner to “det ain” two suspects for questioning. When Officer Sheer located the in dividuals, he informed them that they were- 3 - wanted for questioning and began to talk to them. 2 Tabron then arrived on the scene and asked Officer Sheer why he had stopped the individuals . After Officer Sheer explained his purpose, Tabron “started to get loud.” Tabron then told the police that they did not have a right to talk to the suspects, and she told the suspec ts they could leave any time. In the meantime, four other officers arrived a nd were present at the scene. However, only Officer Sheer dealt with Tabron. Officer Sheer to ld Tabron to leave the sc ene several times, but she refused. Instead, she stood about twenty f eet from the officers and the suspects, and repeatedly yelled at the suspects that they did not need to talk to the police and that they could leave. While she was loud and using hand gestures , she was not cursing. Officer Sheer testified that Tabron’s actions “took [his] focus off the su spects” and that she was “making some of the suspects irritated and agitated . . . .” Officer Sheer also tes tified that her actions made the suspects—who were not under arrest—unsure of whethe r they had to go to the precinct with the officers. The suspects, however, never walked aw ay from the officers, and the officers were able to detain them. Eventually, Officer Sheer “tried to push [Tabron] away from the scene,” and, at that time, she ”got irate.” At that point, Offi cer Sheer arrested her for obstruction of justice. Here, of the five officers who were dispat ched to detain two suspects for questioning, only one, Officer Sheer, needed to step away from the suspects in order to speak to Tabron. His testimony revealed that Tabron was yelling at the suspects from a di stance of twenty feet away. He testified that she was loud a nd used hand gestures, but did not indicate that she was abusive or profane. Moreover, her actions did not act ually prevent Officer Sheer from doing his duty— he reported that neither of the suspects left and that both eventually went to the precinct for

2 Officer Sheer initially testified that he was trying to “consensually get [the suspects] to come down to the precinct.” However, when as ked if the suspects could have “said no thank you” the officer responded “[a]t that time, but they were going to be taken to the precinct for questioning.”- 4 - questioning. Hence, we hold that the evidence ad duced at trial was insufficient to prove Tabron obstructed justice, and we reverse her conviction. Reversed.- 5 - Willis, J., dissenting.
In Ruckman v. Commonwealth , 28 Va. App. 428, 430, 505 S.E.2d 388, 389 (1998), the defendant identified to an investig ating officer the driver of a truc k that had been involved in an accident. He later told the officer that he co uld no longer remember who was driving. Holding that this disparity was insufficient to constitu te obstruction of justice, we said, “Although Ruckman’s apparently conflicting statements may have frustrated Trooper White’s investigation, the statements did not oppose, impede, or resist White’s efforts to conduct an investigation.” Id. at 431, 505 S.E.2d at 390. Officer Sheer lawfully sought to detain two suspects in regard to a felony investigation. “Yelling . . . screaming loudly,” and “with lots of hand gestures,” Tabron exhorted the suspects to resist detention. She told them they didn’t have to talk to the officers, that they could just walk away. She caused them to become “irritated” and “agitated” and to refuse to cooperate. Asked to do so, she refused to desist or leav e. She thereby opposed, impeded, and resisted Officer Sheer’s efforts to conduct an investigation and obstructed him in the performance of his duty. I would affirm the conviction.