Douglas Tyrone Oulds v. Commonwealth of Virginia ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Coleman and Bumgardner
Argued at Salem, Virginia
DOUGLAS TYRONE OULDS
MEMORANDUM OPINION * BY
v. Record No. 2062-98-3 JUDGE RUDOLPH BUMGARDNER, III
SEPTEMBER 28, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Richard S. Miller, Judge
B. Leigh Drewry, Jr., for appellant.
Steven A. Witmer, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Douglas Tyrone Oulds appeals his conviction of assault and
battery on a police officer engaged in the performance of public
duties, Code § 18.2-57. He argues that the trial court erred in
finding that the victim, who was a police officer and who worked
as a private security guard, was engaged in the performance of
public duties. Specifically, he argues that the Commonwealth
did not prove that the City of Lynchburg had adopted a local
ordinance authorizing police officers to work off-duty. Finding
no error, we affirm.
Investigator P.R. Adams of the Lynchburg Police Department
was working as a private security guard at the Lynchburg Plaza.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
He wore his full uniform including his handcuffs, sidearm, and
all the implements normally used. He saw the defendant and
recognized him but could not recall his name. Thirty minutes
later, he saw the defendant again and this time realized the
defendant had been barred from the Plaza. Adams approached the
defendant, informed him he was barred, and arrested him for
trespassing. When Adams attempted to handcuff the defendant, he
jerked back, struggled, and then hit the officer. The defendant
admitted he knew that Adams was a police officer but denied
intending to hit the officer or putting his hand up to strike
him. The store manager verified the officer's testimony.
The officer worked for the police department, and for the
past twelve years, he also worked part-time as a private
security guard at the Lynchburg Plaza. Adams testified that he
applied for approval of off-duty employment pursuant to
departmental procedures. The department approved his
application and permitted him to wear his full uniform while
working off-duty.
The defendant argued that there was no evidence that Adams
was performing his public duties because the Commonwealth failed
to prove the Lynchburg ordinance that permitted law enforcement
officers to work off-duty. Finding that the defendant hit Adams
"in the lip with his fist and also grabbed him from behind" and
that the "officer was within the performance of his public
duties when that took place," the trial court convicted.
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Code § 15.1-133.1 (now § 15.2-1712) permits localities to
adopt ordinances that authorize law-enforcement officers to
engage in off-duty employment which may require use of their
police powers. In this case, the Commonwealth did not
introduce, and the court did not specifically refer to the local
ordinance that adopted Code § 15.1-133.1. During argument, the
Commonwealth cited it specifically, but the trial court did not
formally admit it as an exhibit. A copy of the ordinance,
Lynchburg City Code § 31-5.1, was included in the record on
appeal.
The trial court need not admit formally the ordinances of
the jurisdiction where it sits because it is required to take
judicial notice of those laws. See Code § 19.2-265.2(A);
Griswold v. Commonwealth, 19 Va. App. 477, 484, 453 S.E.2d 287,
290-91 (1995) (judicial notice of local ordinances). See also
Kent Sinclair, Virginia Civil Procedure § 14.7, at 582 (3d ed.
1998); Charles E. Friend, The Law of Evidence in Virginia
§ 19.6, at 268 (4th ed. 1993). The Revisers' Note to Code
§ 8.01-386 states, "It is no longer necessary, for example, to
prove ordinances of local cities or counties." Code
§§ 19.2-265.2 and 8.01-386 are verbatim. The local ordinance
was before the trial court, but it is no longer necessary that
it be separately proved and formally admitted.
The defendant also suggests that the Commonwealth failed to
introduce the police regulations that implemented the local
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ordinance. However, the officer was competent to testify that
he had complied with departmental regulations and had received
approval from the department to work off-duty at the Plaza. His
testimony sufficiently established that he was authorized to
work pursuant to the city ordinance.
The defendant argues that the evidence did not show that
the officer was performing public duties at the time of the
offense as required by Code § 18.2-57. In Key v. Commonwealth,
21 Va. App. 311, 464 S.E.2d 171 (1995), an off-duty police
officer working as a hotel security guard encountered the
defendant. When the officer asked the defendant if he was
trespassing, the defendant attempted to evade him, started
fighting, and wounded the officer. The Court held that the
officer was performing his public duties and stated: "The
coincidence of [the officer's] private and public duties during
the encounter did not eclipse his authority and responsibility
as a law enforcement officer." Id. at 315, 464 S.E.2d at 173.
The facts in this case are analogous to those in Key.
In addition, the officer, who was in full uniform though
off-duty, was authorized to arrest when he saw a misdemeanor
being committed in his presence. See Code § 15.1-138 (now
§ 15.2-1704). The officer had probable cause to believe that
the defendant was trespassing, and that authorized him to
arrest. In doing so, the officer was performing his public
duties. His private employment did not relieve him of the
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responsibility or authority to maintain the peace, protect
property, and enforce the laws of the Commonwealth.
Accordingly, we affirm the conviction.
Affirmed.
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