COURT OF APPEALS OF VIRGINIA 

Present: Judges Frank, Felton and Kelsey 

Argued at Richmond, Virginia 

JAVON MONTRELL BATTLE 

 MEMORANDUM OPINION* BY 

v. Record No. 3019-01-2 JUDGE WALTER S. FELTON, JR. 

 DECEMBER 31, 2002 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Margaret P. Spencer, Judge 

 Gregory W. Franklin, Assistant Public 

Defender (Office of the Public Defender, on 

briefs), for appellant. 

 Michael T. Judge, Assistant Attorney General 

(Jerry W. Kilgore, Attorney General, on 

brief), for appellee. 

 Javon Battle was convicted in a bench trial of assaulting a 

police officer in violation of Code § 18.2-57(C). On appeal, he 

contends that (1) the evidence was insufficient to support his 

conviction because his resistance to Officer Brereton's illegal 

seizure was lawful; and (2) the trial court erred in failing to 

suspend the final judgment to allow it to reconsider the case 

and render a decision on the merits. We affirm. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.
I. BACKGROUND

A. THE OFFENSE

 At approximately noon on March 16, 2001, Officer William C. 

Brereton of the Richmond Police Department was on patrol in the 

Gilpin Court area when he came in contact with Battle. Officer 

Brereton spotted Battle and two other males, Mr. Whitaker and an 

unnamed male, on the second floor landing of a building on 

Federal Street. As he drove his police car past the building, 

he made eye contact with the three causing them to "move[] back 

away into the shadows of the landing." Officer Brereton parked 

his police car around the corner where it was no longer visible 

from the landing and approached Battle, Whitaker, and the 

unnamed male on foot. He was investigating the possibility that 

all three were trespassing and that Battle was truant from 

school. 

 The buildings in the Gilpin Court area were clearly marked 

with Richmond Redevelopment and Housing Authority ("RRHA") "No 

Trespassing" signs. Alone, Officer Brereton approached Battle, 

Whitaker, and the unnamed male. He was in uniform and 

displaying his badge of authority. As he approached, he told 

them he needed to speak to them. He asked if any of them lived 

in that building. Battle did not respond. However, Whitaker 

stated his girlfriend lived there. When asked which apartment, 

Whitaker could not provide an answer. At that time, Officer 

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Brereton allowed the unnamed male, whom he knew, to leave so he 

would only "have to deal with two people." 

 Subsequently, Battle attempted "two or three times to walk 

away." Officer Brereton had to raise his voice and tell Battle 

he needed to stay where he was. Battle continued to walk at 

which point Officer Brereton told them he was going to walk them 

down to the police car to check their names for warrants and to 

determine if they lived there. Officer Brereton walked them to 

the car, holding the bottom of their shirts. When they arrived 

at the car he asked Battle and Whitaker to place their hands on 

the car in order for him to pat them down for weapons to ensure 

his safety. 

 Whitaker attempted to walk away. When Officer Brereton 

tried to pull Whitaker back, Battle took off at a full run. 

Still holding Battle by the shirt, Officer Brereton pulled 

Battle back. Battle turned toward him and began punching and 

scratching Officer Brereton's hand and arm. Officer Brereton 

was cut, resulting in scars from the altercation. Battle then 

began punching Officer Brereton in the chest at which time he 

got Battle on his back, on the ground. While attempting to flip 

Battle on his stomach to handcuff him, Battle began kicking 

Officer Brereton in his legs, chest, and groin. 

 During the struggle, Battle screamed for Officer Brereton 

to "get the f*** off me." He then began to scream that "this 

cop is beating me. Somebody come over here and help me." 

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Battle then reached into his pants pocket for something Officer 

Brereton believed was a weapon. Officer Brereton attempted to 

pull Battle's hand out of his pocket, but could not. As a 

result, he drew his service weapon. Officer Brereton then 

ordered Battle to take his hand out of his pocket. Battle would 

not and continued fighting him. Officer Brereton re-holstered 

his service weapon and tried to keep Battle's hand in his 

pocket. He also attempted to handcuff Battle's other hand. 

Battle continued screaming for help. 

 At that point, Officer Brereton looked up and noticed 

approximately a hundred people had gathered. He stated that 

during the struggle someone shoved him from behind, which 

allowed Battle to get to his feet. Officer Brereton tackled 

Battle, and several bottles were thrown from the crowd. Battle 

continued to fight, kicking Officer Brereton in the legs, chest, 

and groin. Officer Brereton then attempted to spray Battle with 

mace, but failed because someone in the crowd warned Battle. 

Battle covered his eyes and managed to knock the mace canister 

from Officer Brereton's hand. Battle was once again able to get 

to his feet and charged Officer Brereton. Battle attempted to 

tackle Officer Brereton by grabbing him behind the knees with 

his head between the officer's legs. As a result, Officer 

Brereton deployed his asp and struck Battle once on the back of 

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his legs.1 Battle fell to his knees, then got back up. He again 

attempted to tackle Officer Brereton. Officer Brereton struck 

him again in the back of the legs. 

 The crowd began to move closer, and threats were made from 

the crowd. Officer Brereton turned his attention to the crowd 

and told them to get back. Battle got to his feet, and the 

struggle continued. Officer Brereton grabbed Battle by his 

clothing, but he was able to pull out of his two shirts and his 

jacket. Battle fled, and Officer Brereton pursued him a short 

distance down St. John Street. However, Officer Brereton had to 

halt his pursuit because the crowd began chasing him. He called 

for backup and turned his attention toward the crowd. 

 Officer Brereton was able to determine that Battle was not 

a resident of Gilpin Court, but that he had a grandmother that 

lived nearby on Hill Street. He and other officers proceeded to 

Hill Street and found Battle, wearing the same pants but a 

different shirt. Battle was arrested and charged with 

assaulting a police officer, in violation of Code § 18.2-57(C). 

B. TRIAL AND MOTION TO RECONSIDER AND VACATE

 At his bench trial, Battle testified in his own behalf. 

Battle stated that Officer Brereton initially referred to him as 

"Shawn." He claimed he told Officer Brereton that Shawn was not 

his name and he attempted to walk away. He admitted attempting 

 1

 An asp is a tactical, expandable baton used by the police, 

similar in nature to a traditional nightstick. 

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to get away several times afterwards. Battle claimed that 

Officer Brereton attempted to slam him on the car trunk, but he 

landed on the ground instead. Officer Brereton then pinned him 

to the ground by placing his knees in his back. Battle further 

claimed that Officer Brereton had him by the collar of his shirt 

and was choking him. 

 Battle admitted struggling with Officer Brereton, but 

denied ever kicking him, hitting him in the hand or chest, 

calling out for help, or telling Officer Brereton to "get the 

f*** off me." Battle also denied having his hand in his pocket 

or having drugs in his pocket. However, he admitted that on the 

same day he struggled with Officer Brereton, he was charged with 

possessing six rocks of crack cocaine and later pleaded guilty 

to the charge. Battle further admitted that he did not live in 

Gilpin Court. 

 Battle was found guilty of assaulting a police officer. 

The court entered a final conviction and sentencing order on 

October 9, 2001. On October 24, 2001, Battle filed a motion to 

reconsider and vacate his conviction. The motion cited recent 

authority in support of his motion to set aside the conviction 

based on his assertion that he was legally resisting detention 

that was not supported by reasonable suspicion.2 The motion was 

 2

 Battle cited, what was then, the recently decided cases of 

Harris v. Commonwealth, 262 Va. 407, 551 S.E.2d 606 (2001); Hill 

v. Commonwealth, 37 Va. App. 1, 553 S.E.2d 529 (2001), rev'd, 

264 Va. 541, 570 S.E.2d 805 (2002); and Hicks v. Commonwealth, 

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heard on October 25, 2001. The court stated it would take the 

matter under advisement and directed Battle's attorney to 

provide the court with the transcript of the trial proceedings. 

The following colloquy ensued: 

MS. McCONNELL [Battle's attorney]: And in 

that case will you stay the 21 days? 

THE COURT: Yes. The motion was filed prior 

to the 21-day period. 

MS. McCONNELL: Thank you very much. 

On October 25, 2001, the trial court entered an order stating 

the motion was taken under advisement. It did not, however, 

suspend the twenty-one days or vacate the final judgment order. 

The sentencing order became final upon the expiration of the 

twenty-one days. 

II. SUFFICIENCY OF THE EVIDENCE

 We first consider whether the evidence was sufficient to 

support Battle's conviction of assaulting a police officer. 

When the sufficiency of the evidence is 

challenged on appeal, it is well established 

that we must view the evidence in the light 

most favorable to the Commonwealth, granting 

to it all reasonable inferences fairly 

deducible therefrom. The conviction will be 

disturbed only if plainly wrong or without 

evidence to support it. 

Jones v. Commonwealth, 13 Va. App. 566, 572, 414 S.E.2d 193, 196 

(1992). Battle contends that the evidence was insufficient 

 

36 Va. App. 49, 548 S.E.2d 249 (2001), aff'd on other grounds, 

264 Va. 48, 563 S.E.2d 674 (2002). 

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because he was resisting an unlawful detention by Officer 

Brereton. Assuming, without deciding, that Battle was the 

subject of an unlawful detention, he possessed no right to use 

force to resist the detention or "pat down" search. The recent 

Supreme Court decision in Commonwealth v. Hill, 264 Va. 541, 570 

S.E.2d 805 (2002), is determinative on this issue. 

 In Hill, the defendant was indicted for assault and battery 

of a law enforcement officer. Hill was the subject of a "pat 

down" search by a police officer to determine if he was carrying 

a weapon. During the pat down, the officer noticed a bulge in 

Hill's right pants pocket. As the officer attempted to pat down 

the pocket, Hill pushed the officer's hand away. The officer 

again attempted to pat down the right pants pocket, and Hill put 

his hand in that pocket. When the officer grabbed Hill's hand 

and removed it, Hill turned and tried to run away. In the 

process, he struck the officer in the mouth with his open hand, 

splitting the officer's lip. A panel of this Court determined 

that Hill had been illegally detained and that the force used in 

resisting that detention was lawful. Hill v. Commonwealth, 37 

Va. App. 1, 9, 553 S.E.2d 529, 533 (2001). 

 Reversing our decision, the Supreme Court held that a 

person does not have the right to use force to resist an 

unlawful detention or "pat down" search. Hill, 264 Va. at 548, 

570 S.E.2d at 809. The Court reasoned that 

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[b]ecause a detention is, by its nature, a 

brief intrusion on an individual's liberty, 

the provocation resulting from an illegal 

detention is far less significant than the 

provocation that attends an illegal arrest. 

Thus, recognition of a right to resist an 

unlawful detention would not advance the 

rationale supporting the common law right to 

use reasonable force to resist an unlawful 

arrest, but would only serve to increase the 

danger of violence inherent in such 

detentions. 

Id. at 548, 570 S.E.2d at 808-09. 

 Regardless of whether Battle's detention was unlawful or 

not, he was not entitled to use force to resist the detention. 

Thus, the evidence was sufficient beyond a reasonable doubt to 

sustain his conviction of assaulting a police officer. 

III. FAILURE TO SUSPEND FINAL JUDGMENT

 We next consider whether the trial court erred in failing 

to suspend the final judgment to allow the court to consider a 

post-trial motion. Rule 1:1 states in pertinent part: 

All final judgments, orders, and decrees, 

irrespective of terms of court, shall remain 

under the control of the trial court and 

subject to be modified, vacated, or 

suspended for twenty-one days after the date 

of entry, and no longer. . . . The date of 

entry of any final judgment, order, or 

decree shall be the date the judgment, 

order, or decree is signed by the judge. 

Battle argues that he was denied due process by the trial 

court's failure to make good on its ruling to suspend the final 

judgment order. We disagree. 

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 In Berean Law Group, P.C. v. Cox, 259 Va. 622, 528 S.E.2d 

108 (2000), the trial court entered an order on September 24, 

1998, stating that the defendant's demurrers would be sustained 

and Cox's action against the defendants dismissed unless Cox 

filed an amended motion for judgment on or before September 17, 

1998. Subsequent to the September 1998 order, the circuit court 

agreed orally during a phone conference with all counsel to 

permit Cox to file an amended motion for judgment on a date 

later than the date specified in the September 24, 1998 written 

order. On November 16, 1998, Cox filed the amended motion for 

judgment. The defendants filed a motion to reject and dismiss 

Cox's amended motion for judgment arguing that more than 

twenty-one days had elapsed from the entry of the September 24, 

1998 order. The trial court considered counsel's arguments and 

in an April 1999 order, permitted Cox to nonsuit his action. 

Id. at 624-25, 528 S.E.2d at 109-10. 

 On appeal, the Supreme Court held that allowing Cox to 

nonsuit his action was in error. According to the Court, the 

circuit court lost control of the September 24, 1998 order 

pursuant to Rule 1:1. No written order was entered that 

modified, vacated, or suspended the September 24, 1998 order. 

It is true that there was an oral agreement to permit Cox to 

file an amended motion for judgment after the specified date in 

the September 24, 1998 order. However, "the circuit court's 

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oral ruling cannot nullify its written final order, and it was 

incumbent upon the plaintiff to submit timely a written order to 

the circuit court suspending, modifying, or vacating the 

September 24, 1998 order . . . ." Id. at 111, 528 S.E.2d at 

627. 

 As in Cox, no written order suspending, modifying, or 

vacating the twenty-one day period was entered prior to 

expiration of the twenty-one days. The trial court lost control 

over the final order on October 30, 2001, twenty-one days after 

its entry. The fact the trial court orally agreed it would 

suspend the final judgment in this case is of no consequence 

since the trial court's oral ruling cannot nullify its written 

order. It was Battle's responsibility to submit a timely 

written order to the trial court suspending, modifying, or 

vacating the October 9, 2001 order. 

 Although Battle procedurally defaulted in failing to submit 

a written order to the trial court suspending the final order, 

that issue is rendered moot by the fact that he properly 

preserved for appeal the issue of justifiable resistance to an 

illegal detention. That issue is disposed of in this opinion. 

As a general rule, "'[m]oot questions are not justiciable and 

courts do not rule on such questions to avoid issuing advisory 

opinions.'" In re Times-World Corp., 7 Va. App. 317, 323, 373 

S.E.2d 

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474, 477 (1988) (quoting United States v. Peters, 754 F.2d 753, 

757 (7th Cir. 1985)). 

 The judgment of the trial court is affirmed. 

 Affirmed.

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