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Fountain v. Commonwealth

Court of Appeals of Virginia

November 4, 2014



Bassel Khalaf, Assistant Public Defender (Office of the Public Defender, on briefs), for appellant.

Robert H. Anderson, III, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Felton Chief Judge, McCullough and Decker Judges.



Shontrina Charon Fountain challenges her conviction of misuse of the 9-1-1 system, in violation of Code § 18.2-429(B). She argues that the evidence fails to establish that she possessed the requisite intent " to annoy, harass, hinder or delay emergency personnel

Page 294

in the performance of their duties" at the time she " caus[ed] the telephone to ring." We agree and reverse her conviction.


[64 Va.App. 53] On March 25, 2013, at approximately 8:50 p.m., appellant was driving with her two daughters, aged eight and eleven, in the back seat. Officer J.D. Gates of the Virginia Beach Police Department observed appellant's vehicle briefly drift in and out of the adjacent lane. He initiated a traffic stop, and appellant pulled over to the side of the road. Due to the proximity of the vehicles to an intersection, Officer Gates, for safety purposes, asked appellant to move her car to the nearby parking lot of a check cashing business. He gestured with his hand to that effect.

Although the entrance of the parking lot was well-lit, the area of the lot located " more than two car lengths" beyond the entrance was fairly dark. Officer Gates did not specify that appellant should park in the well-lit portion of the lot. Appellant pulled into the parking lot, slowed down, made a U-turn away from the check cashing business, and abruptly reversed her vehicle. In the process, she struck but did not damage the building. She reoriented her vehicle so that the front of her car was facing the police vehicle and the exit of the parking lot. She then rolled her car toward Gates's police vehicle, stopped briefly, and rolled forward once more. She came to a complete stop approximately three feet from the police cruiser. Appellant later explained that she turned her vehicle around to be closer to the light.

Because appellant repeatedly moved her car toward the police vehicle, a second officer reached into appellant's car and placed it in park while Officer Gates removed her keys from the ignition. Officer Gates testified that, due to appellant's failure to follow his commands (which the record does not specify), he told appellant that he would drag her from her car and pepper-spray her if she did not obey. Appellant then insisted on calling her attorney. Officer Gates told her that she had no right to do so.

At this point, appellant locked her vehicle and dialed 9-1-1 from her cell phone. She testified that she felt unsafe because Officer Gates directed her to pull into a poorly lit portion of [64 Va.App. 54] the parking lot and threatened to drag her from her vehicle and pepper-spray her. She stated that she wanted " everything recorded and documented because this is not normal for police to ask you to pull in the back of a dark parking lot, threaten to drag you out, and threaten to pepper-spray you. There's nothing normal and okay about that." Appellant repeatedly voiced concerns to the dispatcher that she was not allowed to call her attorney. She stated multiple times that she feared for her safety because of Officer Gates's threats to use physical force and pepper-spray her if she did not comply with his requests. She testified that her children were " freaked out," that she was merely heading home from church, and that she did not know why Officer Gates had pulled her over. She repeatedly stated that the officer directed her to pull into the back of a dark parking lot and that she did not feel safe.

About twelve minutes into the call, Officer Gates's supervisor, Sergeant N.C. Creekmore, arrived at the parking lot. Creekmore asked appellant to put down her cell phone and speak to him. Appellant refused. She said that she did not want the dispatcher to go " because [she] want[ed] to record it." The dispatcher at one point said, " I'll let you go now," to which appellant responded, " [N]o ma'am, I don't want you to get off. I don't want you to get off." Appellant resisted Sergeant Creekmore's entreaties to hang up the phone. Appellant told the dispatcher, " Ma'am, I don't want you to get off [the phone] because I'm scared. I'm scared of him. I'm scared of him." She explained that she dialed 9-1-1 because " they ...

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