COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, O’Brien and AtLee Argued at Norfolk, Virginia PUBLISHED

LAMBERTO MALDONADO, A/K/A LAMBERTO MOLDANADO OPINION BY v. Record No. 0254-18-1 JUDGE ROBERT J. HUMPHREYS JULY 16, 2019 COMMONWEALTH OF VIRGINIA FROM THE CIRCUIT COURT OF NORTHAMPTON COUNTY W. Revell Lewis, III, Judge Brandon L. Wilder (Bush & Taylor, P.C., on brief), for appellant. Robert H. Anderson, III, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee. Following a bench trial on December 28, 2017, the Circuit Court of Northampton County (“circuit court”) found appellant Lamberto Maldonado (“Maldonado”) guilty of misdemeanor obstruction of justice, in violation of Code § 18.2-460(A).1 The circuit court later sentenced Maldonado to twelve months in jail, with nine months suspended. On appeal, Maldonado argues that “[t]he [circuit] court erred in denying [his] motion to strike and finding him guilty of obstruction when the evidence was insufficient to prove beyond a reasonable doubt that [he] either hindered the authorities’ ability to perform their job or made the authorities’ job more difficult.”

The circuit court also convicted Maldonado’s daughter, Sonia Maldonado, of obstruction of justice in a joint bench trial. This Court dismissed her appeal by order dated August 17, 2018, for failure to timely file a petition for appeal.

I. BACKGROUND

The evidence reflects that on the evening and early morning hours of December 29-30, 2016, Maldonado’s son, Everardo, was at Kelly’s Pub in Cape Charles. Before arriving at

Kelly’s Pub, Everardo picked up a friend, Justin Travis (“Travis”), in a Nissan pickup truck registered to Maldonado. Everardo and Travis then traveled to Kelly’s Pub and proceeded to consume alcoholic beverages.

Raven Brady (“Brady”), an acquaintance of both Everardo and Travis, was at Kelly’s Pub that same evening. Brady and Everardo exchanged phone numbers that night. According to

Brady, both Everardo and Travis were drinking alcohol at Kelly’s Pub. She also described

Travis as “extremely intoxicated—basically sleeping at the bar, and Everardo wasn’t as

intoxicated, but there were indications that they were tipsy.” Brady left Kelly’s Pub about the same time as Everardo and Travis. As Everardo and Travis left, Brady witnessed Everardo in the driver’s seat of the pickup truck and Travis in the passenger seat.

Brady received a telephone call from Everardo at approximately 2:33 a.m. According to

Everardo, “there had been some type of accident.” Everardo also asked Brady to “come and get him.” Though Brady told Everardo that she would come and get him, she did not do so.

At approximately 3:10 a.m., Deputy Roger Pike (“Deputy Pike”) of the Northampton

County Sheriff’s Office was dispatched to investigate a car accident off of northbound Route 184 in Northampton County. When Deputy Pike arrived at the scene of the accident, he saw that a

Nissan pickup truck had lost control on the right side of the highway, rolled over, hit a ditch, and made several turns. The pickup truck came to rest approximately 100-200 feet off the highway.

Deputy Pike stated that the pickup truck was not easily visible from the highway. Additionally, while Deputy Pike did not see anyone inside or around the scene of the accident upon his arrival, he found a cell phone inside of the pickup truck.

During Deputy Pike’s investigation, Maldonado’s daughter, Sonia, approached the scene

of the accident and identified herself. Deputy Pike noted that Sonia arrived at the scene of the accident approximately ten minutes after he did. During this initial encounter, Deputy Pike explained to Sonia that he was attempting to find the driver of the pickup truck. Sonia told

Deputy Pike that the pickup truck was registered to her father, Maldonado, but “that someone

took the truck from her dad’s.” Sonia also stated that she “didn’t know who had taken [the pickup truck], and then she started asking questions later on about how to report it stolen.”

Before leaving the scene of the accident, Sonia provided Deputy Pike with her cell phone number.

Deputy Pike spoke with Maldonado at approximately 3:47 a.m. at Maldonado’s home—

the registered address for the pickup truck. Deputy Pike asked Maldonado if he knew where the pickup truck was or if anyone had taken it. Maldonado, however, only answered Deputy Pike’s questions with the assistance of Sonia as a translator. Further, Deputy Pike indicated that he did not know if Maldonado understood the questions that he asked. The record does not reflect any substance of the conversation between Deputy Pike and Maldonado.

Virginia State Trooper Daniel Wallace (“Trooper Wallace”) also investigated the pickup truck accident. Similar to Deputy Pike, Trooper Wallace stated that the accident was not easily visible from the highway. Trooper Wallace called Sonia with the phone number that she

provided to Deputy Pike. During the conversation, Sonia informed Trooper Wallace that the pickup truck was stolen from her father’s home and that she did not know who took the vehicle.

Trooper Wallace also informed Sonia that she could be charged with obstruction of justice if she made any false statements to the police. Sonia subsequently became what Trooper Wallace

“consider[ed] aggressive . . . and insisted that the vehicle had been stolen.”

At some point during the investigation, Trooper Wallace traced the cell phone discovered by Deputy Pike to Travis. When Trooper Wallace called Sonia a second time and asked if she knew Travis, Sonia denied knowing Travis “or why he would be inside of the vehicle.”

Around 8:30 a.m. that morning, Trooper Wallace visited Maldonado’s home with Deputy

William Lewis (“Deputy Lewis”) of the Northampton County Sheriff’s Office. Trooper Wallace hoped to learn more about the pickup truck accident and locate the driver. At the time, it was

Trooper Wallace’s understanding that Maldonado’s son, Everardo, also resided at the home.

Upon arriving at Maldonado’s home, Trooper Wallace identified himself to Maldonado and spoke with him in English. When Trooper Wallace asked Maldonado if he knew the reason for the visit, Maldonado replied in “clear and precise” English that “[m]y truck was stolen.”

Maldonado also “made a gesture to a parking space that would be at the end of the [residence].”

Additionally, when Trooper Wallace questioned Maldonado about his son Everardo and if

Everardo was home, Maldonado responded by stating that he had not seen Everardo and that

Everardo was not home.

Trooper Wallace stated that he “felt very confident that [Maldonado] understood that we were trying to speak to his son.” Similarly, Deputy Lewis noted that he and Maldonado conversed in English and stated that he could understand Maldonado’s responses to his questions

“perfectly.”

After speaking with Maldonado “for a good ten to fifteen minutes,” Trooper Wallace and Deputy Lewis asked Maldonado to see if Everardo was inside the house. Maldonado then

“pulled his phone from out of his pocket” and stated “[w]e need to call my daughter Sonia.”

Maldonado subsequently held an extended, fifteen to twenty-minute conversation with Sonia in Spanish. Trooper Wallace also spoke to Sonia on Maldonado’s phone. Trooper Wallace explained to Sonia that he believed that Everardo was the driver of the pickup truck and that he wanted to speak with Everardo. After ending his phone call with Sonia, Maldonado went inside his home and spoke with someone out of the officers’ view for approximately ten minutes.

Trooper Wallace and Deputy Lewis later identified the individual that Maldonado was speaking with as Everardo.

Maldonado eventually allowed Trooper Wallace and Deputy Lewis inside his home, where the officers immediately encountered Everardo. When Trooper Wallace and Deputy

Lewis asked Everardo about his knowledge of the pickup truck accident, Everardo denied any involvement and explained that he never left home the night of the accident. According to

Trooper Wallace, Everardo “was very shortcoming with us where he wouldn’t answer us directly

on a lot of questions that we asked . . . . He’d just say, I don’t know.” At one point during the conversation, Deputy Lewis noticed abrasions on one of Everardo’s hands and asked about the injury. Everardo quickly replied that he was “a water man” who “gets cuts all the time.”

Later that same morning, Deputy Lewis learned from Travis’s employer that Travis was at Sentara Norfolk Hospital. Deputy Lewis subsequently spoke with Travis on the phone. He

also met with Travis after Travis was discharged from the hospital. According to Deputy Lewis, Travis told him “what had happened” the night of the pickup truck accident.

On July 10, 2017, Maldonado was directly indicted on one count of providing a false

report to a law enforcement official, in violation of Code § 18.2-461, and one count of obstruction of justice, in violation of Code § 18.2-460. During the subsequent bench trial, which took place on December 28, 2017, the Commonwealth called Brady, Deputy Pike, Trooper

Wallace, Deputy Lewis, and Travis as witnesses, among others. During their testimony, both

Trooper Wallace and Deputy Lewis noted Maldonado’s initial reluctance to aid the police with their investigation. Additionally, Travis confirmed that Everardo had been driving the truck on the night of the crash. Although he had very little recollection of the accident or the immediate aftermath, Travis recalled Maldonado telling him to wake up because there had been an accident.

Travis was also certain that Maldonado had been at the accident scene, stating that Maldonado’s face was the only thing he recognized “at the whole scene.”

After the Commonwealth rested, the circuit court granted Maldonado’s motion to strike

the false report charge but denied it as to the remaining obstruction of justice offense. At the conclusion of all the evidence, the circuit court convicted Maldonado of misdemeanor obstruction of justice. This appeal follows.

II. ANALYSIS

A. Standard of Review

“In reviewing a challenge to the sufficiency of the evidence to support a conviction, ‘the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” Melick v. Commonwealth, 69 Va. App. 122, 144 (2018) (quoting

Kelly v. Commonwealth, 41 Va. App. 250, 257 (2003) (en banc)). “This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.”

Burrous v. Commonwealth, 68 Va. App. 275, 279 (2017) (quoting Kelly, 41 Va. App. at

257-58). In conducting our analysis, we are mindful that “determining the credibility of the witnesses and the weight afforded the testimony of those witnesses are matters left to the trier of fact, who has the ability to hear and see them as they testify.” Miller v. Commonwealth, 64

Va. App. 527, 536 (2015) (citing Commonwealth v. Taylor, 256 Va. 514, 518 (1998)).

B. Obstruction of Justice

Maldonado argues that the evidence adduced at trial was insufficient to support his obstruction of justice conviction. Maldonado contends that he “never resisted” the law enforcement investigation of the accident. Maldonado admits that he initially told law enforcement officials that his truck was stolen and falsely denied knowledge of Everardo’s whereabouts. He adds, however, that “soon thereafter” he “advised [law enforcement] that

Everardo was at home and let them speak with Everardo.” Accordingly, Maldonado argues that while his “initial report may have frustrated law-enforcement’s investigation, the statements did not prevent, or impede their efforts to conduct an investigation.”

Maldonado was indicted and convicted under Code § 18.2-460(A).2 That statute provides, in pertinent part, that

[i]f any person without just cause knowingly obstructs . . . any law-enforcement officer . . . in the performance of his duties as such or fails or refuses without just cause to cease such obstruction when requested to do so by such . . . law-enforcement officer . . . , he is guilty of a Class 1 misdemeanor.

“To constitute an obstruction of an officer in the performance of his duty, it is not necessary that there be an actual or technical assault upon the officer[.]” Jordan v. Commonwealth, 273 Va.

639, 648 (2007) (quoting Jones v. Commonwealth, 141 Va. 471, 478-79 (1925)). Rather, our

Supreme Court has consistently explained that

there must be acts clearly indicating an intention on the part of the accused to prevent the officer from performing his duty, as to “obstruct” ordinarily implies opposition or resistance by direct action . . . . It means to obstruct the officer himself not merely to oppose or impede the process with which the officer is armed.

Id. (quoting Jones, 141 Va. at 478-79). Acts sufficient for an obstruction conviction “may be either active or passive.” Thorne v. Commonwealth, 66 Va. App. 248, 255 (2016).

We also recognize, however, that “obstruction of justice does not occur when a person fails to cooperate fully with an officer or when the person’s conduct merely renders the officer’s

Subsection (A) prohibits obstruction of justice without “threats or force.” Compare task more difficult but does not impede or prevent the officer from performing that task.”

Ruckman v. Commonwealth, 28 Va. App. 428, 429 (1998). “Consequently, actions that make an officer’s discharge of his or her duty simply more difficult, but achievable, do not constitute obstruction of justice without force.” Thorne, 66 Va. App. at 255 (citing Jones, 141 Va. at

477-80).

Here, Maldonado relies upon Ruckman and argues that because he did not prevent

Trooper Wallace and Deputy Lewis from ultimately interviewing Everardo, his actions and behavior merely inconvenienced them. The Attorney General, in turn, relies upon Thorne to assert that the approximately forty-minute delay in interviewing Everardo was a sufficient

impediment to the law enforcement investigation to amount to obstruction of justice. However, neither party addresses an ancillary point we think important to resolving the issue before us: under these circumstances, did Maldonado owe any legal duty to cooperate with the law enforcement officers in the conduct of their investigation?

Our Supreme Court has never explicitly addressed the elements of the offense set forth in Code § 18.2-460(A). It has, however, addressed the elements of the similar offense in subsection

C of that statute. See Washington v. Commonwealth, 273 Va. 619, 625 (2007) (characterizing the elements of the offenses set forth in subsections A and B as “straightforward”). Pursuant to such guidance and other precedent from our Supreme Court, we have previously applied a

two-step analysis to determine whether the evidence was sufficient to prove obstruction of justice under that statute. See Molinet v. Commonwealth, 65 Va. App. 572, 578 (2015). First, the evidence must be sufficient for a rational fact finder to conclude that the accused’s “actions

did, in fact, prevent a law-enforcement officer from performing his duties.” Id. Second, the evidence must be sufficient for a rational fact finder to conclude that the accused acted with an intent to obstruct—i.e., prevent—an officer from performing his or her duty. Id. at 580-81; see also Thorne, 66 Va. App. at 256 (“As long as the obstructive behavior ‘clearly indicat[es] an intention on the part of the accused to prevent the officer from performing his duty,’ the evidence proves the offense.” (citation omitted)).

As a preliminary matter, Maldonado’s assignment of error does not challenge the sufficiency of the evidence to prove his intent to prevent law enforcement officers from questioning Everardo—and we assume without deciding that the second element required for an obstruction conviction under Code § 18.2-460(A) is satisfied. See Rule 5A:12(c)(1)(i) (“Only

assignments of error assigned in the petition for appeal will be noticed by this Court.”). Instead, Maldonado’s assignment of error only addresses whether his actions prevented a law enforcement officer from performing his duty. Accordingly, we limit our appellate review to that issue. It then follows that our analysis of Maldonado’s assignment of error necessarily begins with a determination of what sort of acts the General Assembly intended to criminalize when it prohibited “[o]bstruct[ing] any law enforcement officer . . . in the performance of his duties.” Code § 18.2-460(A).

Ascertaining the General Assembly’s intent in promulgating Code § 18.2-460(A) must

begin with a review of the common law, since we trace the modern crime of obstruction of justice to a common law category of offenses related to the fair and orderly administration of justice. The common law remains the law of the Commonwealth unless modified by the General

Assembly. See Code § 1-200. Sir William Blackstone noted that the common law considered some twenty-two different intentional acts as “Offenses Against Public Justice.”3 Most of the offenses categorized by Blackstone have been codified in the Commonwealth as separate offenses such as perjury, bribery, escape, and barratry. See generally Code §§ 18.2-434 to

-480.1 (listing “crimes against the administration of justice” in the Commonwealth).

Significantly, we note that the common law did not, without more, criminalize either lying to a law enforcement officer or a failure to cooperate fully with an investigation, as sufficient to constitute an offense against the administration of justice. Indeed, the common law analogue to

Code § 18.2-460(A) was, as Blackstone phrased it, “obstructing the execution of lawful process.”

4 William Blackstone, Commentaries[*129] .

We further note that the General Assembly did create other statutory offenses, separate from obstruction of justice, that criminalized both lying to, and the failure to assist, law enforcement officers, provided that certain additional conditions were met. For example, Code

§ 18.2-462 makes it a criminal offense to “delay, impede, obstruct, prevent, or hinder the investigation, apprehension, prosecution, conviction or punishment of any person.” However, that statute specifically exempts members of a suspect’s immediate family—including a parent such as Maldonado—from its application. Likewise, Code § 18.2-461 punishes lying to a law enforcement officer, but only in the context of making a false report—a separate offense from obstruction of justice that Maldonado was indicted for but acquitted of. Similarly, Code

§ 18.2-463 criminalizes the failure to assist a law enforcement officer in a criminal case provided one is expressly told by a law enforcement officer that they are required to provide specific assistance in the execution of a specific duty. Thus, we conclude that in creating such separate