Brandishing a Deadly Weapon In Defense of Personal Property is A Criminal Act
Commonwealth v. Alexander, 260 Va. 238, 531 S.E.2d 567 (2000).
"In this appeal, we decide whether a deadly weapon may be brandished in defense of personal property.
Jon Douglas Alexander was charged with attempted murder in Rockbridge County. At a preliminary hearing on that charge, the general district court reduced the charge to that of brandishing a firearm in violation of Code §18.2-282 and convicted defendant Alexander of that charge.
Michael T. Eustler, an agent of the lien holder of the defendant's vehicle, sought to repossess the vehicle. When Eustler arrived at the defendant's home, the defendant agreed to its repossession provided he could remove certain papers and tools valuable to him and having nothing to do with the vehicle being repossessed.
Although Eustler agreed to permit the defendant to retrieve the items, Eustler "jacked up" the vehicle as the defendant was partially in the front seat. Eustler approached the defendant in a belligerent manner, and demanded the keys to the vehicle. Feeling threatened, the defendant entered his house and emerged with the keys as well as an unloaded rifle which he placed in a flower bed that was close to the vehicle. When Eustler again approached in a belligerent manner, the defendant retrieved the rifle and held it at his side. The defendant felt compelled to raise the rifle to his shoulder when he thought that Eustler was going to assault him. However, the defendant did not point the gun at Eustler until Eustler kept coming at him, at which time, Eustler "finally backed off." Eustler later called the police.
We need not resolve the defendant's claim that Eustler's actions were "unwarranted and illegal . . . in attempting, by other than peaceful means, to unlawfully take [defendant's] personal property." Even if Eutsler's actions were unwarranted or illegal, the defendant, as an owner of personal property, did not have the right to assert or defend his possessory rights thereto by the use of deadly force. In Montgomery v. Commonwealth, 98 Va. 840, 842-43, 36 S.E. 371, 372 (1900), we said:
The law is clearly stated by a learned judge in State v. Morgan, 3 Ired. 186, 38 Am. Dec. 714, as follows: "When it is said that a man may rightfully use as much force as is necessary for the protection of his person and property, it should be recollected that this rule is subject to this most important modification, that he shall not, except in extreme cases, endanger human life or do great bodily harm. It is not every right of person, and still less of property, that can lawfully be asserted, or every wrong that may rightfully be redressed by extreme remedies.
There is a recklessness-a wanton disregard of humanity and social duty in taking or endeavoring to take, the life of a fellow-being, in order to save one's self from a comparatively slight wrong, which is essentially wicked, and the law abhors. You may not kill, because you cannot otherwise effect your object, although the object sought to be effected is right. You can only kill to save life or limb, or prevent a great crime, or to accomplish a necessary public duty." See, also, 1 Bishop on New C. L., secs. 839, 841, 850. However, the defendant contends, and the Court of Appeals held, that these principles do not apply when there is a mere threat to use deadly force in protection of personal property. We do not agree.
The threat to use deadly force by brandishing a deadly weapon has long been considered an assault. Harper v. Commonwealth, 196 Va. 723, 733, 85 S.E.2d 249, 255 (1955). In Merritt v. Commonwealth, 164 Va. 653, 658-59, 180 S.E. 395, 398 (1935), we said:
Judge Moncure, in the Hardy Case, 17 Gratt. (58 Va.) 592, 600,  quoted with approval from an old English case, thus: "An assault is any attempt or offer with force or violence to do a corporeal hurt to another, whether from malice or wantonness, as by striking at him in a threatening or insulting manner, or with such other circumstances as denote at the time an intention, coupled with a present ability, of actual violence against his person, as by pointing a weapon at him when he is within reach of it."Such a threat may give the threatened person a right to defend himself by the use of a deadly weapon. McGhee v. Commonwealth, 219 Va. 560, 562, 248 S.E.2d 808, 810 (1978). Further, as the dissenting opinion of the Court of Appeals notes, "[p]ermitting one to threaten to use deadly force leads in dangerous progression to an unacceptable conclusion. Here, the victim would have been entitled to use deadly force to repel the perceived threat." 28 Va. App. at 780, 508 S.E.2d at 916 (Judge Bumgardner, dissenting); 30 Va. App. at 153, 515 S.E.2d at 808 (en banc) (Judge Bumgardner, with whom Chief Judge Fitzpatrick joins, dissenting). Moreover, the owner of land has no right to assault a mere trespasser with a deadly weapon. Montgomery, 98 Va. at 844, 36 S.E. at 373. Indeed, in Montgomery, it was the landowner's brandishing of a sharpened corn-cutter that provoked the defendant's physical assertion of his right of self-defense. 98 Va. at 841-43, 36 S.E. at 372-73. For these reasons, we agree with the trial court that a deadly weapon may not be brandished solely in defense of personal property. Therefore, we conclude that the Court of Appeals erred in reversing the trial court's judgment. "
See Also: Morris v. Commonwealth, 269 Va. 127, 607 S.E.2d 110 (2005).
"We disagree with Morris. "Brandish" means "to exhibit or expose in an ostentatious, shameless, or aggressive manner." Webster's Third New International Dictionary, 268 (1993). When Morris looked at Ms. Molina, said "[he'd] like that," and then pulled up his shirt to uncover the flare gun, he exhibited or exposed the weapon in a shameless or aggressive manner. And Morris brandished the weapon in such a manner as to reasonably induce fear in the mind of Peter Molina. Although Molina may not have said he was in fear for his own safety, he stated unequivocally that he feared for the safety of his wife, and that is sufficient to prove the "induced fear" element of a conviction for brandishing a firearm under Code 18.2-282."
See Also: Huffman v. Commonwealth, 51 Va. App. 469, 658 S.E.2d 713, (2008).
"This Court has held, in connection with robbery, that "'the word "fear" . . . does not so much mean "fright" as it means "apprehension"; one too brave to be frightened may yet be apprehensive of bodily harm.'" Seaton, 42 Va. App. at 749, 595 S.E.2d at 14 (quoting 3 Wayne R. LaFave, Substantive Criminal Law § 20.3(d), at 187-88 (2d ed. 2003)) (emphasis in original).
In other words, "'[w]hen the pertinent test is cast in terms of a victim being put in "fear" of injury, it is not necessary that the victim be frightened; it is necessary merely that he be reasonably apprehensive of injury.'" Id. (quoting Charles E. Torcia, 4 Wharton's Criminal Law § 462, at 21 (15th ed. 1996)) (emphasis in original). The dispositive issue in this case, therefore, is whether there was sufficient evidence for a rational trier of fact to find beyond a reasonable doubt that Moon was reasonably apprehensive of bodily harm induced by Huffman brandishing the gun in her presence. 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. It also ensures that we remain faithful to our duty not to substitute our judgment for that of the trier of fact, even were our opinion to differ.Seaton, 42 Va. App. at 747-48, 595 S.E.2d at 13 (citations and internal quotation marks omitted). In light of the totality of the circumstances, we conclude that Moon's request of Huffman to put his gun away was sufficient evidence of Moon's requisite apprehension of bodily harm."