COURT OF APPEALS OF VIRGINIA 

Present: Judges Kelsey, Petty and Senior Judge Willis 

Argued at Chesapeake, Virginia 

ROMANN A. THOMAS 

 MEMORANDUM OPINION*

 BY 

v. Record No. 1993-07-1 JUDGE WILLIAM G. PETTY 

SEPTEMBER 23, 2008 

CITY OF HAMPTON 

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON 

Louis R. Lerner, Judge 

 Ben Pavek (Deborah Saunders; Office of the Public Defender, on 

briefs), for appellant. 

 Jeffry A. Sachs, Deputy City Attorney (Office of the City Attorney, 

on brief), for appellee. 

Following a bench trial, Romann A. Thomas was convicted of disorderly conduct in 

violation of Hampton City Code § 24-12. Thomas reasons that, because he could have been 

convicted of other offenses, the other-crimes proviso of Hampton City Code § 24-12 precludes 

his prosecution for disorderly conduct. Therefore, Thomas argues on appeal that the trial court 

erred in failing to grant his motion to strike the evidence. For the following reasons, we disagree 

with Thomas and affirm his conviction. 

I. Background1

On appeal, we view “the evidence and all reasonable inferences flowing therefrom . . . in 

the light most favorable to the prevailing party in the trial court.” Parker v. Commonwealth, 275 

 *

 Pursuant to Code § 17.1-413, this opinion is not designated for publication.

1

 Thomas filed a written statement of facts in lieu of a transcript pursuant to Rule 

5A:8(c). 
Va. 150, 155, 654 S.E.2d 580, 583 (2008). On March 24, 2006, Hampton City Police responded 

to a call and arrived at a hotel lobby in which Thomas was standing naked, loudly complaining 

that “small furry animals” were biting him. Officer Easton arrived at the hotel lobby and 

observed Thomas’ conduct. According to Officer Easton, Thomas appeared to be intoxicated. 

Thomas was repeatedly asked to leave the area but he refused to do so. Officer Easton testified 

that a number of people were standing in the foyer and that Thomas was standing in such a 

position that people in the foyer were blocked from entering the hotel and moving around in the 

hotel lobby. Officer Easton arrested Thomas for disorderly conduct in violation of Hampton 

City Code § 24-12. 

At trial, Officer Easton admitted that she had probable cause to arrest Thomas for 

indecent exposure, public intoxication, and obstructing free passage of others. Based on this 

testimony, Thomas moved to strike the Commonwealth’s evidence citing our holding in Battle v. 

Commonwealth, 50 Va. App. 135, 647 S.E.2d 499 (2007). Thomas argued that he could not be 

convicted of disorderly conduct as a matter of law because the other-crimes proviso in the City 

of Hampton ordinance exempted conduct that was otherwise punishable under Chapter 24 of the 

Hampton City Code.2

 The trial court denied Thomas’ motion, and found him guilty of 

disorderly conduct. 

 2

 Thomas did not argue that his conduct was not disorderly, i.e., that his conduct did not 

have a “direct tendency to cause acts of violence by the person or persons at whom, individually, 

such conduct [was] directed.” Hampton City Code § 24-12. Therefore, we assume that Thomas’ 

conduct did in fact violate the ordinance and we focus our attention on whether the other-crimes 

proviso precludes his conviction as a matter of law. 

- 2 -
II. Analysis 

The ordinance for which Thomas was convicted provides in relevant part as follows: 

(a) A person is guilty of disorderly conduct and a Class 1 

misdemeanor if, with the intent to cause public inconvenience, 

annoyance or alarm, or recklessly creating a risk thereof, he: 

(1) In any street, highway, or public building, or while in or on a public 

conveyance or public place, engages in conduct having a direct 

tendency to cause acts of violence by the person or persons at whom, 

individually, such conduct is directed. 

* * * * * * * 

(b) However, the conduct prohibited under subsection (a)(1) . . . of this 

section shall not be deemed to include . . . conduct otherwise made 

punishable under this chapter. 

Hampton City Code § 24-12. The City enacted this ordinance pursuant to the authority granted 

by the General Assembly in Code § 18.2-415, which permits localities to enact an ordinance 

“prohibiting and punishing the acts and conduct prohibited by this section.” Because this 

ordinance parallels the language in Code § 18.2-415, “prior appellate decisions interpreting [the 

statute] are relevant in our application of the [City of Hampton’s] disorderly conduct ordinance 

to the facts in appellant’s case.” Howard v. City of Roanoke, 51 Va. App. 36, 43, 654 S.E.2d 

322, 325 (2007). While the ordinance is virtually identical to the statute, it contains one material 

difference. Under Code § 18.2-415, the other-crimes proviso precludes a conviction if the 

disorderly conduct is comprised solely of conduct punishable under Title 18.2. However, under 

§ 24-12(b) of the Hampton City Code, the other-crimes proviso applies only to a subset of those 

offenses that are made punishable under Chapter 24 of the Hampton City Code.3

 3

 The net effect is that the disorderly conduct ordinance is much broader in its application 

than the corresponding statute. We express no opinion on whether Code § 18.2-415 authorizes 

the adoption of such an ordinance. 

- 3 -
In Battle, this Court recognized that the other-crimes proviso limits the application of 

Code § 18.2-415 and that the limitation “is finely calibrated.” Battle, 50 Va. App. at 140, 647 

S.E.2d at 501. We noted that “it is not enough that the defendant could merely be prosecuted for 

a Title 18.2 crime because that requires only a showing of probable cause,” rather, “the conduct 

exempted” by the other-crimes proviso “includes only Title 18.2 crimes for which the defendant 

could be found guilty beyond a reasonable doubt.” Id. Furthermore, Battle narrowed the 

application of the other-crimes proviso to preclude a conviction only when the “convictable 

disorderly conduct is comprised solely of conduct ‘otherwise made punishable under this title.’” 

Id. at 141, 647 S.E.2d at 502 (emphasis in original). Thus, each distinct act that, in the 

aggregate, constitutes disorderly conduct must be otherwise punishable under Title 18.2 of the 

Code for the limitation to apply. 

That same analysis applies in this case. In order for Thomas to prevail, his “convictable 

disorderly conduct [must be] comprised solely of conduct otherwise made punishable under 

[Chapter 24 of the Hampton City Code].” Id. (emphasis in original) (internal quotation marks 

omitted). Or, to state it another way, it is not enough that some of his disorderly conduct was 

subject to conviction of another offense – all of his conduct must have constituted separate 

offenses under Chapter 24 in order for the exclusion to apply. 

Thomas concedes that he committed three distinct acts that would each constitute 

disorderly conduct. Specifically, Thomas concedes that standing naked in the hotel lobby, 

appearing intoxicated in a public place, and preventing hotel patrons from freely moving about 

the lobby would each, individually, constitute disorderly conduct. Thomas contends, however, 

that those individual acts would also support a conviction of indecent exposure, public 

intoxication, and obstructing the free passage of others, respectively. 

- 4 -
- 5 -

Even assuming that Thomas’ argument is correct, his conduct does not come within the 

other-crimes proviso of the ordinance. As we noted above, this proviso only excludes offenses 

otherwise subject to prosecution under Chapter 24 of the Hampton City Code. The Hampton 

ordinance punishing indecent exposure is codified in Section 12, Chapter 23 of the Hampton 

City Code. Because the indecent exposure ordinance is not codified within Chapter 24, it does 

not preclude a disorderly conduct conviction under the ordinance. Thus, standing naked in the 

hotel lobby and loudly complaining that small furry animals were biting him is not conduct 

“otherwise made punishable” under Chapter 24 of the Hampton City Code. Because Thomas’ 

convictable disorderly conduct is not comprised solely of conduct otherwise punishable under 

Chapter 24 of the Hampton City Code, we hold that the other-crimes proviso does not preclude 

Thomas’ disorderly conduct conviction. 

III. Conclusion 

 Because we conclude that Thomas’ conduct does not fall within the other-crimes proviso 

of the ordinance, the trial court did not err in denying Thomas’ motion to strike the evidence 

based on Battle, 50 Va. App. 135, 647 S.E.2d 499. Therefore, we affirm his conviction. 

Affirmed.