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Davis v. Commonwealth

Court of Appeals of Virginia

May 15, 2018

NICHOLAS GABRIEL PARKER DAVIS
v.
COMMONWEALTH OF VIRGINIA

          FROM THE CIRCUIT COURT OF FAUQUIER COUNTY Jeffrey W. Parker, Judge

          Kevin J. Gerrity, Deputy Public Defender, for appellant.

          Eugene Murphy, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

          Present: Chief Judge Huff, Judges Humphreys and O'Brien Argued at Fredericksburg, Virginia

          OPINION

          MARY GRACE O'BRIEN JUDGE

         A jury convicted Nicholas Gabriel Parker Davis ("appellant") of possessing a firearm while subject to a protective order, in violation of Code § 18.2-308.1:4(B). At trial, appellant asserted a due process defense, arguing that he reasonably relied on information from the Fairfax Juvenile and Domestic Relations District Court ("JDR court") that the protective order was no longer in effect. On appeal, he contends that the trial court erred in denying his motion to strike and refusing his proffered jury instruction on the affirmative defense of reasonable reliance. Because we find that the court erred in determining that the defense did not apply, we reverse.

         BACKGROUND

         The undisputed evidence established that, on October 12, 2016, while appellant was parked at a McDonald's restaurant, a sheriff's deputy observed an AR-15 rifle on the backseat of his car. Appellant explained that he had been to a local shooting range and that the gun belonged to his friend. The deputy checked appellant's information through dispatch and learned that appellant was the subject of a protective order. When the deputy told appellant about the protective order, appellant responded, "That was dismissed." The deputy arrested appellant for possession of a firearm while subject to a protective order.

         Eight months earlier, on February 8, 2016, appellant's wife, Liliana Zuniga, obtained a protective order in the JDR court. The order, issued pursuant to Code § 16.1-279.1, prohibited appellant from having any contact with Zuniga or their minor child, and it granted Zuniga custody of the child "until further order of the court." The protective order also stated:

Pursuant to Code of Virginia § 18.2-308.1:4, [appellant] shall not purchase or transport any firearm while this order is in effect. . . . Either party may at any time file a motion with the court requesting a hearing to dissolve or modify this order; however, this order remains in full force and effect unless and until dissolved or modified by the court.

         A specific case number was listed on the order, and the attached certificate of service indicated that appellant was personally served with the order on February 9, 2016.

         Appellant and Zuniga appeared pro se in the JDR court on February 18 for a "status hearing." On that date, the judge signed an order reflecting that "[p]etitioner wishes to non-suit all petitions" and "[a]ll petitions [are] dismissed." (Emphasis added). The order listed three case numbers and had boxes checked indicating the types of cases heard: "custody, " "child support, " and "spousal support." The order neither addressed the protective order nor referred to its specific case number.

         Following appellant's arrest, on December 28, 2016, Zuniga wrote a letter to the JDR court and requested that the protective order be dismissed. In the letter, Zuniga wrote, "Both [of us] thought the order was dropped due to our court [appearance] back in January or February." The JDR court entered an order dissolving the protective order on January 11, 2017.

         Zuniga testified at appellant's criminal trial. She stated that, prior to the February 18 hearing in JDR court, she decided to dissolve the protective order and dismiss the other petitions because "we both agreed to work on our marriage and to fix everything for the baby." According to Zuniga, she asked the JDR judge if "everything against [appellant] - child support, custody of the baby and the protective order" could "be dropped, " and the JDR judge responded that "[a]ll matters against [appellant] have been dropped." Appellant ...


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