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Neff v. Commonwealth

Court of Appeals of Virginia

May 20, 2014

ALAN NEFF
v.
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF COLONIAL HEIGHTS. Herbert C. Gill, Jr., Judge.

Charles P. Phelps (The Law Offices of Charles P. Phelps, P.C., on brief), for appellant.

Craig W. Stallard, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: Chief Judge Felton, Judges Kelsey and Petty. OPINION BY JUDGE D. ARTHUR KELSEY.

OPINION

[63 Va.App. 414] D. ARTHUR KELSEY, JUDGE.

The trial court convicted Alan Neff of being intoxicated in public in violation of Code § 18.2-388, and assault and battery of a police officer in violation of Code § 18.2-57(C). Neff appealed his assault conviction, but not his public-intoxication conviction. He argues on appeal that he had a right to assault the officer because the officer did not have probable cause to believe Neff was intoxicated in public. Finding this argument structurally flawed, we affirm.

I.

One evening in June 2012, police arrived at Neff's address in response to a call from Neff's neighbors reporting that an intoxicated individual was " creating a disturbance." App. at 22; see also Appellant's Br. at 3. Neff was sitting on the front porch of the residence, which included four apartments. He spoke with slurred speech, had glassy eyes, and emitted a strong odor of alcohol in his breath and about his person. Neff told the officer that he had " had a couple beers." App. at 26. The officer asked him to take a preliminary breath test " if he felt that he was not intoxicated." Id. Neff then raised his voice, cursed at the officer, and became agitated. The [63 Va.App. 415] officer arrested him for being intoxicated in public. During the arrest, Neff physically assaulted the arresting officer. The officer described Neff's conduct during the entire episode as being under the influence of alcohol.

Prior to trial on the charges of being intoxicated in public and assaulting an officer, Neff moved to suppress the evidence of his assault claiming that the arrest was " an unlawful

Page 88

seizure" under the Fourth Amendment. Id. at 6. The trial court denied the motion, heard the evidence on the merits, and convicted Neff of both charges.[1]

II.

On appeal, Neff does not challenge his public-intoxication conviction. He did not identify this charge on his notice of appeal, address it in his petition for appeal, or discuss it in his opening brief. In fact, Neff expressly concedes, " The conviction for public intoxication is not part of this appeal." Appellant's Br. at 2; see also Oral Argument Audio at 1:18 to 1:22. Instead, Neff challenges only his conviction for assaulting the police officer. In line with his argument in the trial court, Neff contends on appeal that the officer lacked " probable cause" to arrest him, Appellant's Br. at 5, and thus, Neff retained his common-law " right of an arrestee to use reasonable force to resist an unlawful arrest," id. at 6.[2]

[63 Va.App. 416] Given the manner in which he presents it to us, Neff's argument is fatally flawed. Neff was convicted of being intoxicated in public after being found guilty beyond a reasonable doubt, and Neff did not appeal that conviction. " The unchallenged finding of the trial court is now the law of the case and binding on the parties for purposes of appeal." Today Homes, Inc. v. Williams,272 Va. 462, 470, 634 S.E.2d 737, ...


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