Coles v. Com.

• Decision Date: 14 December 2004
• Docket Number: Record No. 2053-03-1.
• Citation: 44 Va. App. 549,605 S.E.2d 784
• Parties: Corey Dion COLES v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

605 S.E.2d 784

44 Va. App. 549

Corey Dion COLES v. COMMONWEALTH of Virginia.

Record No. 2053-03-1.

Court of Appeals of Virginia, Chesapeake.

December 14, 2004.

Kathleen Ortiz (Kenneth J. Coughlan, Deputy Public Defender; Office of the Public Defender, on brief), for appellant.

Leah A. Darron, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., ELDER and ANNUNZIATA, JJ.

ANNUNZIATA, Judge.

Corey Dion Coles appeals his conviction under Code § 18.2-478 for escape by force from the custody of a police officer. He argues that the evidence failed to establish he was taken into custody "on a charge of criminal offense" as required by the statute. For the reasons that follow, we reverse.

I. Background

We review the evidence, and all reasonable inferences that may be drawn from the evidence, in a light most favorable to the Commonwealth as the party prevailing below. Garcia v. Commonwealth, 40 Va.App. 184, 189, 578 S.E.2d 97, 99 (2003). So viewed, the evidence establishes that, at 11:30 p.m. on October 7, 2002, Erlinda Lomogda reported to the Norfolk Police Department that her 1997 Honda Accord, bearing Virginia license number MV 6534, had been stolen from the parking lot of Depaul Hospital. Later that evening, Norfolk Police Officer H.E. Warren received a dispatch regarding the theft of the Honda. At 3:44 a.m. the following day, Officer Warren spotted the Honda and followed it until a backup unit arrived. Both police vehicles activated their lights and pulled in behind the Honda.

Norfolk Police Officers R.D. Lean and Herman Seals heard the radio call for backup from Officer Warren and proceeded down Princess Anne Road, where they encountered the stolen Honda and the other officers traveling northbound on Wide Street. Officer Lean positioned his police cruiser in the lane in front of the Honda at the intersection of Wide Street and Princess Anne Road. He exited his cruiser as the Honda pulled over and stopped. After making eye contact with the driver, he recognized him to be Corey Dion Coles. Coles's hands were raised in a surrender position. However, as Officer Lean approached, Coles grabbed the wheel, put the Honda in gear, accelerated, and drove the Honda into the police vehicle. Coles then drove down Princess Anne Road, exited the Honda while it was still in motion, and fled while Officer Seals stopped the unoccupied moving vehicle. Coles was apprehended a short time later.

At the conclusion of the trial, Coles moved to strike the escape charge. He claimed no evidence established he was taken into custody "on a charge of criminal offense" as required by Code § 18.2-478.¹ The trial judge denied the motion to strike and convicted Coles of escape by force from the custody of a police officer. This appeal followed.

II. Analysis

Code § 18.2-478 provides, in pertinent part, that "if any person lawfully in the custody of any police officer on a charge of criminal offense escapes from such custody by force or violence, he shall be guilty of a Class 6 felony."

Coles contends that the Commonwealth presented no evidence that he was charged with a criminal offense before he was taken into custody, and our review of the record reveals that, in fact, the Commonwealth presented no such evidence. However, the Commonwealth contends that it was not required to prove Coles was charged with a criminal offense before he was taken into custody, relying on the holding of Williams v. Commonwealth, 29 Va.App. 696, 514 S.E.2d 381 (1999). The Commonwealth further contends that, even if it must prove Coles was charged with a criminal offense before he was taken into custody, the fact that the police had probable cause to arrest Coles satisfies the statute.² We disagree with the Commonwealth because: (a) controlling case law requires the Commonwealth to prove that Coles was taken into custody "on a charge of criminal offense," and (b) the probable cause standard cannot take the place of the words "on a charge of criminal offense."

A. Code § 18.2-478 Requires Proof That Defendant Was Taken into Custody On a Charge of Criminal Offense

This Court's decision in Johnson v. Commonwealth, 21 Va.App. 102, 462 S.E.2d 125 (1995), establishes that Code § 18.2-478 requires proof the defendant was taken into custody on a charge of criminal offense. In that case, the police attempted to arrest Johnson on an outstanding bench warrant "for failing to appear for sentencing on robbery and firearms convictions." Id. at 104, 462 S.E.2d at 126. After taking Johnson into custody on the outstanding warrant, he escaped by force. Id. at 105, 462 S.E.2d at 126. He was subsequently apprehended and charged with felony escape under Code § 18.2-478. Id. Johnson challenged his conviction on two grounds, arguing that the trial court erred in admitting the bench warrant for his arrest into evidence and that the evidence was insufficient to prove he was taken into custody "on a charge of criminal offense." Id. at 104, 462 S.E.2d at 126.

Regarding the admissibility of the bench warrant, Johnson argued that the specific charges contained in the warrant should have been redacted because they were not pertinent "to whether he was in custody for purposes of escape." Id. at 106, 462 S.E.2d at 127. We rejected that contention, noting that the Commonwealth had to prove the "statutory element that Johnson was in custody `on a charge of criminal offense.'" Id. In light of the Commonwealth's burden to prove that the defendant was in custody "on a charge of criminal offense," we explained:

the existence of an outstanding arrest warrant and the nature of the charge against Johnson tended to prove that he was being arrested and that it was for [failure to appear at sentencing for] robbery and a firearms conviction. These facts were relevant to prove that appellant was in lawful custody on a charge of a criminal offense. Because the Commonwealth had to prove that the appellant was in custody and that the custody was "on a charge of criminal offense," the existence of the warrant for appellant's arrest was relevant to prove ... that appellant was being arrested on criminal charges.

Id. at 106-07, 462 S.E.2d at 127.

We also rejected Johnson's argument that the evidence was insufficient to establish he was in custody "on a charge of criminal offense." We held that the evidence was sufficient to prove that element of the offense because it established the arresting officer "knew that an arrest warrant ... was outstanding against Johnson" and "was attempting to arrest Johnson on that outstanding warrant." Id. at 108, 462 S.E.2d at 128. Accordingly, "the warrant was not only relevant, but it was also sufficient to prove that if appellant was in custody, he was being held `on a charge of criminal offense.'" Id.

The Commonwealth's reliance on Williams for the proposition that it need not prove Coles was in custody "on a charge of criminal offense" is misplaced because Williams addressed a different issue and did not affect our holding in Johnson.

Williams "was an inmate at the Newport News City Farm at the time of" his escape. Williams, 29 Va.App. at 697, 514 S.E.2d at 381. He escaped while on work detail, but he was subsequently apprehended and charged under Code § 18.2-479(A),³ not Code § 18.2-478. Id. Code § 18.2-479 is divided into two subsections. The first subsection, (A), provides that a defendant in police custody on a misdemeanor charge or conviction who escapes from that custody is guilty of a Class 1 misdemeanor. Code § 18.2-479(A). The second subsection, (B), provides that a defendant in police custody on a felony charge or conviction who escapes from that custody is guilty of a Class 6 felony. Williams argued that the Commonwealth's failure to introduce evidence of the class of his conviction, i.e. evidence proving his conviction was either for a misdemeanor or felony offense, was fatal to its case. See Williams, 29 Va.App. at 698, 514 S.E.2d at 381-82. We held that the failure to introduce evidence of his class of conviction was not fatal because "proof of the underlying offense for which an accused is in custody is irrelevant to the determination of guilt, except in those cases in which the Commonwealth seeks enhanced punishment under Code § 18.2-479(B)." Id. at 700, 514 S.E.2d at 383. We explained the holding by reference to established precedent, stating that, where the "legislature has established two grades of an offense, differentiating them only on the basis of penalty, both this Court and the Supreme Court have held that proof of the element relevant to the enhanced penalty is not required except in those cases in which the enhanced penalty is imposed." Id. at 699, 514 S.E.2d at 382 (citing Knight v. Commonwealth, 225 Va. 85, 300 S.E.2d 600 (1983)). Notably, we did not cite or refer to the Johnson decision.

Thus, the Williams decision has no bearing on the instant case. First, Williams did not hold that the Commonwealth need not prove that the defendant was in custody "on a charge or conviction" as required by the statute; that issue was not before the court. Rather, the issue before the court was whether the Commonwealth had to prove that Williams's conviction was either for a misdemeanor or felony offense. We held that such proof is not necessary when the Commonwealth limits its prosecution to Code § 18.2-479(A). See id. at 700, 514 S.E.2d at 383. Because Williams addressed an issue different from the one we address here, it does not apply. Second, our opinion in Williams did not refer to our opinion in Johnson, a case which, as discussed above, clearly establishes that the Commonwealth must prove the defendant was in custody "on a charge of criminal offense" under Code § 18.2-478. Because Johnson was not discussed, our opinion in Williams did nothing to alter its holding.

B. Probable Cause Does Not Satisfy the Statutory Requirement that the Defendant Must Be Taken into Custody "On a...