Jennifer Gail Portee v. Commonwealth of Virginia ( 2023 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Huff, O’Brien and AtLee
UNPUBLISHED
JENNIFER GAIL PORTEE
MEMORANDUM OPINION*
v. Record No. 1757-22-3 PER CURIAM
JULY 18, 2023
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
Stacey W. Moreau, Judge
(Elmer Woodard, on brief), for appellant. Appellant submitting on
brief.
(Jason S. Miyares, Attorney General; Susan Hallie Hovey-Murray,
Assistant Attorney General, on brief), for appellee.
The trial court convicted Jennifer Gail Portee of assault and battery of a law enforcement
officer and sentenced her to three years’ incarceration with two years and six months suspended.
On appeal, Portee argues that the trial court erred by denying her motion to strike because she
reasonably resisted an unlawful use of force against her to secure her arrest. Portee failed to
preserve her argument for appellate review, however, and has not satisfied the ends of justice
exception to overcome her default. Accordingly, the panel unanimously holds that oral argument is
unnecessary because “the appeal is wholly without merit.” Code § 17.1-403(ii)(a); Rule 5A:27(a).
BACKGROUND
On appeal, we review “the evidence below ‘in the “light most favorable” to the
Commonwealth, the prevailing party in the trial court.’” Hammer v. Commonwealth, 74
Va. App. 225, 231 (2022) (quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). This
*
This opinion is not designated for publication. See Code § 17.1-413(A).
standard “requires us to ‘discard the evidence of the accused in conflict with that of the
Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and
all fair inferences to be drawn therefrom.’” Cady, 300 Va. at 329 (quoting Commonwealth v.
Perkins, 295 Va. 323, 324 (2018)).
On April 15, 2022, Mandy Dalton was doing yard work when she saw Portee, whom she
knew, walking on the yellow line in the middle of the street in their neighborhood. Portee was
stumbling and had a “weird, altered . . . gait.” Dalton called to Portee because she concerned
that something was “wrong.” When Portee did not respond, Dalton called the police because she
was concerned for Portee’s safety.
Officer J.D. Spencer arrived and saw Portee “staggering in and out of the roadway.”
Officer Spencer parked, exited his vehicle, and when he approached her, immediately smelled
alcohol coming from Portee’s person. Her eyes were bloodshot, and she slurred her words as she
told Officer Spencer that she was “trying to get home.” Portee nearly fell several times, so
Officer Spencer placed his hands on her to steady her and assist her out of the road. Portee,
however, “pull[ed] away” from Officer Spencer and resisted by “swinging her hands.”
Lieutenant Roach arrived about thirty seconds later and helped Officer Spencer handcuff Portee.
Dalton testified that the officers acted with “urgency,” but they were not aggressive as they
attempted to “assist[]” Portee from the road.
After the officers handcuffed Portee, she “locked out her legs and would not walk,” so
the officers had to carry her. As they placed her in the back seat of Officer Spencer’s vehicle,
she kicked Lieutenant Roach several times. When Lieutenant Roach secured her legs and leaned
into the vehicle to buckle her seat belt, Portee leaned forward and bit his shoulder. Officer
Spencer placed an “open palm” against Portee’s head and pushed her against the seat to keep her
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from biting. Portee then told Lieutenant Roach that Officer Spencer had “blacked her eye,” but
Lieutenant Roach did not see any cuts, marks, swelling, or blood on her person.
After securing the seat belt, Lieutenant Roach tried to shut the door, but Portee kicked his
right leg. Lieutenant Roach returned Portee to the seat and tried to shut the door again, but she
kicked his stomach. Eventually, Lieutenant Roach shut the door, and Portee beat and banged the
inside of the police vehicle for about a minute. Portee did not have any visible injuries when the
officers put her inside the police vehicle; when she exited, however, she was bleeding around her
right eye. The Commonwealth introduced photos taken shortly after the incident depicting
“dried saliva” on Lieutenant Roach’s shoulder and a scuff mark on his pants from Portee’s kicks.
Lieutenant Roach agreed that Portee inflicted no “long term injury.”
After the close of the Commonwealth’s case-in-chief, Portee moved to strike, arguing
that there was no damage to either officer other than a “couple of stains on some clothes” that
would wash away. The trial court denied the motion.
Portee testified that April 15, 2022, was a “tragic day” because of a death in her family.
She decided to walk to her mother’s house and occasionally had to walk on the road because
some areas did not have a sidewalk. Portee testified that Lieutenant Roach “socked [her] in [her]
eye” and “snatche[d] [her] down to the ground” without saying anything. She claimed that she
was “bleeding and . . . bloody” as he “thr[ew her] in the back of the police car.” She did not
remember seeing Officer Spencer and denied that she was intoxicated. She also denied biting or
kicking Lieutenant Roach.
Portee provided photographs taken the day after the incident depicting blood and bruising
on her arms, injuries she claimed Lieutenant Roach had caused. Three witnesses testified that
they saw Portee before her arrest on April 15, 2022, and that she did not have any visible injuries
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on her person. Sterling Smith, Portee’s mother, saw Portee the day after her arrest and testified
that Portee was “swollen” and “sore.”
After the close of the evidence, Portee argued that the witnesses had “different view[s]”
of the incident and that it appeared this was an “arrest gone awry.” Portee asserted that she
would not “belabor the evidence” and merely asked the trial court for a “just verdict.” The trial
court found that Portee did not want to be arrested and became belligerent when the officers
attempted to remove her from the road for her safety. The trial court found that she kicked and
bit Lieutenant Roach and any injuries she suffered occurred as she thrashed around in the back of
the police vehicle. Thus, the trial court found that the evidence established her guilt beyond a
reasonable doubt. Portee now appeals.
ANALYSIS
On appeal, Portee argues that the officers used unlawful and unreasonable force to arrest
her, so she was entitled to resist the arrest. She contends that she “cannot be held criminally
liable for doing what she had a right to do.”
“No ruling of the trial court . . . will be considered as a basis for reversal unless an
objection was stated with reasonable certainty at the time of the ruling, except for good cause
shown or to enable this Court to attain the ends of justice.” Rule 5A:18. “Not just any objection
will do. It must be both specific and timely—so that the trial judge would know the particular
point being made in time to do something about it.” Bethea v. Commonwealth, 297 Va. 730, 743
(2019) (quoting Dickerson v. Commonwealth, 58 Va. App. 351, 356 (2011)). Portee concedes
that her argument is not preserved for appeal but asks this Court to address it under Rule 5A:18’s
ends of justice exception.
“The ‘ends of justice’ exception to Rule 5A:18 is ‘narrow and is to be used sparingly.’”
Melick v. Commonwealth, 69 Va. App. 122, 146 (2018) (quoting Pearce v. Commonwealth, 53
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Va. App. 113, 123 (2008)). Whether to apply the ends of justice exception involves two
questions: “(1) whether there is error as contended by the appellant; and (2) whether the failure
to apply the ends of justice provision would result in a grave injustice.” Commonwealth v. Bass,
292 Va. 19, 27 (2016) (quoting Gheorghiu v. Commonwealth, 280 Va. 678, 689 (2010)). “The
burden of establishing a manifest injustice is a heavy one, and it rests with the appellant.” Holt
v. Commonwealth, 66 Va. App. 199, 210 (2016) (en banc) (quoting Brittle v. Commonwealth, 54
Va. App. 505, 514 (2009)).
Portee’s argument fails to demonstrate a manifest injustice. The record demonstrates that
Officer Spencer and Lieutenant Roach did not exert any unreasonable or unlawful force when
arresting Portee. Instead, Portee became belligerent after the officers arrived and tried to assist
her out of the roadway for her safety. Moreover, after they handcuffed Portee and carried her to
the police vehicle, she kicked and bit Lieutenant Roach. Although Portee asserted that
Lieutenant Roach “socked [her] in [her] eye” and “snatche[d] [her] down to the ground,” the
Commonwealth’s evidence contradicted that account, including Dalton’s testimony that the
officers were not aggressive.
The trial court was entitled to disbelieve Portee’s self-serving testimony and conclude that
she was “lying to conceal [her] guilt.” Marable v. Commonwealth, 27 Va. App. 505, 509-10
(1998). “Determining the credibility of witnesses . . . is within the exclusive province of the [fact
finder], which has the unique opportunity to observe the demeanor of the witnesses as they
testify.” Dalton v. Commonwealth, 64 Va. App. 512, 525 (2015) (first alteration in original)
(quoting Lea v. Commonwealth, 16 Va. App. 300, 304 (1993)). “When ‘credibility issues have
been resolved by the [fact finder] in favor of the Commonwealth, those findings will not be
disturbed on appeal unless plainly wrong.’” Towler v. Commonwealth, 59 Va. App. 284, 291
(2011) (quoting Corvin v. Commonwealth, 13 Va. App. 296, 299 (1991)). The record
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demonstrates that the trial court carefully weighed the witnesses’ competing accounts and
concluded that the evidence established Portee’s guilt beyond a reasonable doubt. Thus, the ends of
justice exception does not apply, and Rule 5A:18 bars us from considering Portee’s argument.
CONCLUSION
Having failed to preserve her argument below or to satisfy the requirements of Rule 5A:18’s
ends of justice exception, Portee is barred from seeking appellate review of her argument.
Accordingly, we affirm the trial court’s judgment.
Affirmed.
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