Virginia Lawyers Weekly

A woman who made multiple telephone calls to the owner of land with a gun shop that purportedly sold a weapon to the student who murdered 32 Virginia Tech students and then shot himself, criticizing the landowner and repeatedly demanding that the gun shop be closed, cannot be convicted of making a threatening or obscene phone call in violation of Va. Code Sect. 18.2-427; and the circuit court also dismisses charges of public intoxication and resisting lawful arrest.
Defendant’s telephone calls were not obscene. The commonwealth agrees the content of the messages left by defendant do not constitute obscene language. Instead the commonwealth claims defendant violated the portion of the statute that prohibits threatening any illegal or immoral act with the intent to coerce, intimidate or harass any person, over any telephone.
The commonwealth calls attention to the portions of the telephone calls where defendant repeatedly called the owner a “murderer” and stated, “If you don’t shut it [the gun shop] down, I’m going to shut it down.” Calling the owner a murderer was hurtful, rude and very ill-mannered but it was not a threat under the statute. Also, when the owner was listening to the subsequent messages referring to “shutting down” the gun shop, it was with the knowledge of the information contained in the first message she received from defendant, in which defendant explained she did not want the gun shop in the neighborhood and close to a school. This language suggested a form of community activism against the gun shop, and not a threat of an immoral or illegal act. There was evidence defendant had already begun the campaign to shut down the gun shop by contacting political officials. The language on the telephone messages does not constitute a violation of Va. Code Sect. 18.2-427.
Nor can defendant be convicted of public intoxication based on her encounter with police at her home. The commonwealth did not establish that defendant was intoxicated when she was arrested. There were no field sobriety or blood-alcohol tests administered and defendant has continued to maintain she was not intoxicated and had not had anything to drink that day. It seems unlikely defendant could be found to have been “in public” at the time of her arrest because the position of the house and garage and the placement of the shrubbery. Defendant was arrested in her garage and cannot be accurately categorized as having been “in open view, visible to the community.”
Finally, defendant cannot be convicted of resisting lawful arrest in violation of Code Sect. 18.2-479.1.Her alleged action of falling to the ground certainly made it more difficult for the officers to arrest her and take her into physical custody. However, this action of falling to the ground does not constitute an attempt to prevent a lawful arrest. The act of falling to the floor does not rise to he level of “fleeing from a law enforcement officer” as required under the statute.
Defendant will be found not guilty as to all three charges.
Commonwealth v. Ferguson (Apgar, J.) No. CR07001063, Nov. 15, 2007; Roanoke City Cir. Ct.; Andrew E. Stephens, Ass’t Comm. Att’y; Melvin Williams for defendant. VLW 007-8-257, 6 pp.

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