COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Bray and Senior Judge Hodges 

Argued at Alexandria, Virginia 

HOWARD PIKE 

 OPINION BY 

v. Record No. 0905-96-4 JUDGE JERE M. H. WILLIS, JR. 

 MARCH 25, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY 

Thomas D. Horne, Judge 

 Steven A. Merril (Whitestone, Brent, Young & 

Merril, on briefs), for appellant. 

 Kimberley A. Whittle, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Howard Pike was convicted in a bench trial in the Circuit 

Court of Loudoun County of four counts of brandishing a firearm 

in violation of Code § 18.2-282. He contends that the evidence 

is insufficient to sustain a finding of guilt. We disagree and 

affirm the judgment of the trial court. 

 Under familiar principles, we view the evidence in the light 

most favorable to the Commonwealth. 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 set aside unless it 

appears from the evidence that the judgment is plainly wrong or 

without evidence to support it." Josephs v. Commonwealth, 10 Va. 

App. 87, 99, 390 S.E.2d 491, 497 (1990) (en banc). 

 On August 19, 1995, Pike discovered Cablevision employees 
- 2 - 

attaching cable lines to utility poles located on his property. 

Pike demanded that they leave his property and called the police. 

 Deputy Shellhammer of the Loudoun County Sheriff's Department 

arrived at the scene, directed the Cablevision employees to 

leave, and recommended that the parties contact their attorneys. 

 Pike testified that the Cablevision workers damaged several 

small trees, left tire ruts in his field and broke a fence. 

 On September 8, 1995, Pike's attorney advised Cablevision 

that any attempt by Cablevision to enter Pike's land "will be 

treated as a trespass and will be dealt with accordingly." On 

that same day, Cablevision informed Pike's attorney that it had a 

utility easement and would continue work on the property the 

following week. On September 12, 1995, Cablevision employees 

returned to Pike's property and resumed stringing cable. As Pike 

was leaving for work that day, he saw the Cablevision workers on 

his property. He approached their supervisor, advised him that 

they were trespassing, and ordered them to leave. Pike testified 

that the supervisor told him that the police were not going to 

interfere and that the Cablevision employees would not leave the 

property. 

 Pike returned to his house, telephoned the police, obtained 

a shotgun, and returned to the worksite. He testified that upon 

exiting his vehicle, he held the shotgun at port arms and ordered 

the Cablevision workers off of his property. He testified that 

the Cablevision workers agreed to leave, and he placed the 
- 3 - 

shotgun in his vehicle. 

 The Cablevision workers testified that Pike pumped the 

shotgun, pointed it directly at each of them with his finger on 

the trigger, and angrily demanded that they leave his property. 

They testified that they thought he might shoot them and that 

they feared for their lives. They testified that Pike held the 

gun on them for approximately five minutes, while they loaded 

their equipment and prepared to leave. 

 Code § 18.2-282(A) provides, in pertinent part: 

 It shall be unlawful for any person to 

point, hold or brandish any firearm . . . 

whether capable of being fired or not, in 

such manner as to reasonably induce fear in 

the mind of another . . . . 

Viewed in the light most favorable to the Commonwealth, the 

evidence proved that Pike's conduct violated the express 

prohibition of the statute. However, Pike contends that his 

conduct was excusable, because he was acting in defense of his 

property. 

 The common law in this state has long recognized the right 

of a landowner to order a trespasser to leave, and if the 

trespasser refuses to go, to employ proper force to expel him, 

provided no breach of the peace is committed in the outset. 

Montgomery v. Commonwealth, 99 Va. 833, 37 S.E. 841 (1901). 

Absent extreme circumstances, however, such force may not 

endanger human life or cause great bodily harm. Montgomery v. 

Commonwealth, 98 Va. 840, 36 S.E. 371 (1900). 
- 4 - 

 Citing Diffendal v. Commonwealth, 8 Va. App. 417, 382 S.E.2d 

24 (1989), Pike argues that he was privileged to brandish a 

firearm to expel the Cablevision employees. In Diffendal, we 

"conclude[d] that a factual issue was raised whether [the 

defendant's] pointing of the shotgun was reasonably proportioned 

to the perceived threat posed by" an armed trespasser's presence 

on the property. Id. at 422, 382 S.E.2d at 26. Thus, we held, 

the trial court in Diffendal erred in refusing to instruct the 

jury that the defendant was privileged to use reasonable force in 

defense of the property and himself. 

 Credible evidence proved that Pike brandished the shotgun in 

a manner that reasonably caused fear in the minds of the 

Cablevision workers. The trial court examined the underlying 

circumstances and concluded that the production of the shotgun, 

under circumstances of angry confrontation, was unreasonable in 

terms of any privilege that Pike may have had to defend his 

property. The evidence supports this conclusion. The 

brandishing of the shotgun was disproportionate to any threat 

posed by the unarmed cable workers, irrespective of the legality 

of Cablevision's conduct. 

 Accordingly, the judgment of the trial court is affirmed. 

 Affirmed.