764 S.E.2d 293
Va. Ct. App.2014Background
- On March 25, 2013, Officer Gates stopped Fountain for drifting lanes; he directed her to a nearby check-cashing lot and gestured to move her car; she parked further in a darker part of the lot and repositioned her vehicle nearer the police cruiser.
- After officers placed her car in park and removed her keys because she repeatedly moved toward the cruiser, Gates allegedly threatened to drag and pepper-spray her; Fountain says she felt unsafe and wanted her actions recorded.
- Fountain dialed 9-1-1 from her cell phone and spoke with a dispatcher for about 12 minutes while officers remained on scene; Sergeant Creekmore then arrived and asked her to hang up, which she refused.
- The call disconnected and Fountain called back solely to reach the dispatcher’s supervisor; she ultimately spoke with supervisor Matthew Berg and remained on the line until she received the call reference and officer names; total 9-1-1 contact lasted ~37 minutes.
- Fountain was convicted at bench trial under Va. Code § 18.2-429(B) (misuse of 9-1-1), fined and given a suspended jail sentence; the trial court found she initially called out of fear but developed an intent to intimidate by remaining on the line. Fountain appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 18.2-429(B) requires the offending intent at the moment the telephone is caused to ring | Fountain: statute requires intent to annoy/harass/hinder/delay emergency personnel when the call is placed; later-formed intent is not enough | Commonwealth: intent formed after the call can support conviction; second call and total duration show intent | Court: Statute’s plain language requires the intent to exist when the phone is caused to ring; conviction reversed |
| Whether Fountain’s second call supplies the requisite intent | Fountain: stipulated she called back solely to reconnect with supervisor, not to annoy/hinder | Commonwealth: presence of supervisor when second call occurred should negate fear and support intent to annoy | Court: Stipulation binds parties; second call was solely to reestablish connection, so it does not prove required intent |
| Whether the trial court’s reliance on conduct during the call can substitute for intent at call initiation | Fountain: post-initiation conduct cannot be retroactively treated as the requisite intent at ring time | Commonwealth: prolonged call and refusal to hang up indicate later-developed intent relevant to misuse | Court: Cannot rewrite statute; later-developed intent is outside § 18.2-429(B)’s scope |
| Procedural default of appellate claim | Fountain: preserved challenge at trial that required intent was absent at time call was placed | Commonwealth: argued procedural default | Court: Fountain’s trial objections in signed statement of facts satisfied Rule 5A:18; issue not defaulted |
Key Cases Cited
- Martin v. Commonwealth, 13 Va. App. 524 (Va. Ct. App.) (requirements and purpose of Rule 5A:18 preservation)
- Weidman v. Babcock, 241 Va. 40 (Va.) (contemporaneous objection gives opposing party opportunity to respond)
- Kozmina v. Commonwealth, 281 Va. 347 (Va.) (statutory construction reviewed de novo)
- Baker v. Commonwealth, 284 Va. 572 (Va.) (plain meaning controls unless ambiguous or absurd)
- Boynton v. Kilgore, 271 Va. 220 (Va.) (same principle on plain meaning)
- Lee County v. Town of St. Charles, 264 Va. 344 (Va.) (courts bound by plain statutory language)
- Barrick v. Bd. of Supervisors of Mathews Cnty., 239 Va. 628 (Va.) (parties bound by factual stipulations)