Criminal: Woman convicted of felony assault of a law enforcement officer

Where an officer was attempting to arrest a woman, and the woman repeatedly reached for her weapon despite the officer’s repeated and clear orders to stop, the evidence was sufficient to find that the woman engaged in an overt act intended to place the officer in apprehension of bodily harm.

Background

Jacqueline Lynn Ortiz was a passenger in a stolen vehicle when Officer Jeremy Hall unsuccessfully attempted to detain her husband, the driver, Deshawn Whitaker. Ortiz also attempted to flee but was quickly apprehended by Hall. However, a brief scuffle ensued as Ortiz repeatedly reached for a gun in her waistband. During the scuffle, Whitaker returned, retrieved a firearm and pointed it at Hall, at which point Hall shot and killed Whitaker. Hall was then able to restrain and arrest Ortiz.

Ortiz pled guilty to two charges. After a bench trial, Ortiz was additionally found guilty of brandishing a firearm, attempting to flee from a law enforcement officer, felony receiving stolen property and felony assault of a law enforcement officer. Ortiz argues the evidence was insufficient to find (1) that she had the requisite intent to assault the officer and (2) that she had possession of the stolen property.

Assault

Ortiz was a passenger in a stolen vehicle and attempted to flee from Hall. During the subsequent struggle with Hall, Ortiz repeatedly reached for her weapon despite Hall’s repeated and clear orders to stop, eventually grabbing hold of it. Under the assimilated tort definition of assault, the trial court found that the evidence was sufficient to find that Ortiz engaged in an overt act intended to place Hall in apprehension of bodily harm by repeatedly reaching for her weapon while resisting arrest.

The trial court found that Ortiz’s actions were sufficient to support a conviction for assault. Viewing the evidence in a light most favorable to the Commonwealth as the prevailing party below and giving due deference to the credibility determinations of the trial court, this court certainly cannot say that the trial court erred in that conclusion. It affirms the decision as to Ortiz’s conviction for assault of a police officer.

Possession

The Commonwealth needed to prove that Ortiz knew that the car was stolen and, while knowing the car was stolen, that she exercised control or dominion over the car. The trial court found sufficient evidence to find that Ortiz jointly possessed the stolen vehicle with her husband. The court disagrees and reverses the trial court.

The evidence as established by the Commonwealth in the case at hand suggested that Ortiz exercised control over the stolen vehicle when the car was used to visit her aunt for Thanksgiving, but the Commonwealth failed to establish that Ortiz knew the car was stolen at that time. Instead, the evidence showed that Ortiz did not discover that the car was stolen until days after the Thanksgiving trip.

The Commonwealth likewise failed to establish that Ortiz exercised dominion or control after she discovered that the car was stolen. Ortiz never drove the car, nor did the Commonwealth establish that she had exercised any control over where the car was driven after being told that it was stolen. There was no evidence that Ortiz had told her husband where to drive or who to carry in the vehicle.

The Commonwealth seems to rely only on her status as the wife of the driver of the stolen vehicle and that she knew the few passengers who were driven in the car by her husband. Access to the stolen car, without the exercise of dominion or control of the car, is not enough to prove Ortiz had possession of stolen property. Additionally, while Ortiz also may have had a relationship with Deshawn’s girlfriend and the unidentified male, the Commonwealth failed to establish that Ortiz exercised control over the use of this stolen vehicle in transporting these friends.

Affirmed in part, and reversed in part.

Commonwealth v. Ortiz, Record No. 1918-23-1, June 24, 2025. CAV (Fulton III). From the Circuit Court of the City of Virginia Beach (Farashahi). Meghan Shapiro (Virginia Indigent Defense Commission, on briefs), for appellant. Andrew T. Hull, Assistant Attorney General (Jason S. Miyares, Attorney General; Michael O. Jenkins, Jr., Assistant Attorney General, on brief), for appellee. VLW 025-7-163. 9 pp.