Graves v. Commonwealth, Record No. 2344–14–1.

• Court: Court of Appeals of Virginia
• Citation: 65 Va.App. 702,780 S.E.2d 904
• Docket Number: Record No. 2344–14–1.
• Parties: Patrick Franklin GRAVES, Jr. v. COMMONWEALTH of Virginia.
• Decision Date: 12 January 2016

65 Va.App. 702
780 S.E.2d 904

Patrick Franklin GRAVES, Jr.
v.
COMMONWEALTH of Virginia.

Record No. 2344–14–1.

Court of Appeals of Virginia, Chesapeake.

Jan. 12, 2016.

780 S.E.2d 905

Charles E. Haden, Hampton, for appellant.

Lauren C. Campbell, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: HUFF, C.J., DECKER and ATLEE, JJ.

DECKER, Judge.

65 Va.App. 705

Patrick Franklin Graves, Jr., appeals his conviction by a jury for the felony of eluding law enforcement, in violation of Code § 46.2–817. On appeal, he asserts that the trial court erred by instructing the jury on the inference that may be drawn from a defendant's flight. We hold that because of the unique nature of the charged offense it was error to instruct the jury separately on flight from the officer. We also hold, however, that the error was harmless. Accordingly, we affirm the appellant's conviction.

I. BACKGROUND

On October 23, 2013, Officer Ryan Franz, of the City of Hampton Police Department, was on routine patrol. He was in a marked police car equipped with emergency lights and a siren. Franz saw a truck on the road with a defective brake light. He pulled his police car behind the truck, followed it, and radioed the license plate number to police communications. The officer activated his emergency lights to stop the vehicle. The truck stopped, and the officer pulled his police car behind it and turned on his spotlights. Although it was dark outside, the spotlights lit up the area. As the officer was about to get out of his police car, the truck "broke traction and made an illegal U-turn" right in front of Franz. When the truck made the U-turn, its driver's side window passed the front of the police car and then the driver's side window of the vehicle. Officer Franz was able to see the face of the driver, whom he subsequently identified as the appellant.

Officer Franz radioed that he was in pursuit of the truck. The appellant drove away well above the speed limit. During the pursuit, Officer Franz reached a speed of ninety miles per hour in what he believed was a sixty-five-mile-per-hour zone. At that point, consistent with police department policy, Franz terminated the pursuit due to excessive speed.

After the incident, Officer Franz determined that the appellant was the registered owner of the vehicle. The officer obtained a photograph of the appellant, verified that he was

65 Va.App. 706

the driver of the truck, and obtained an arrest warrant for him.

At the appellant's trial for felony eluding of a law enforcement officer, he presented testimony to refute that he was driving the truck at the time of the pursuit. The appellant, who had twelve prior felony convictions, testified that he was not driving the vehicle at the time of the stop. His mother and his fiancée also testified supporting his alibi. He did not challenge the basis for the stop or the circumstances surrounding the pursuit.

Upon completion of the evidence, the court discussed jury instructions with counsel. The court agreed to a number of standard instructions used in a criminal case. The finding instruction approved by the court, in pertinent part, read:

The defendant is charged with the crime of disregarding a signal by [a] law enforcement officer to stop. The Commonwealth

780 S.E.2d 906

must prove beyond a reasonable doubt each of the following elements of the crime:

(1) That the defendant received a visible or audible signal from [a] law enforcement officer to bring his motor vehicle to a stop; and

(2) That the defendant drove such motor vehicle in a willful and wanton disregard of such signal so as to interfere with or endanger the operation of the law enforcement vehicle or endanger a person.

The Commonwealth also proffered an instruction on flight. That instruction read: "If a person flees to avoid prosecution, detection, apprehension or arrest, this creates no presumption that the person is guilty of having committed the crime. However, it is a circumstance which you may consider along with the other evidence."

The appellant's counsel objected to the flight instruction, arguing that "the very nature of this offense of evading and eluding is incorporated in what [the appellant] is supposed to have done. The fact that someone ran away, that's the crime.... It's not a factor to be considered. They haven't determined whether he evaded and eluded." Counsel asserted

65 Va.App. 707

that the evidence did not warrant giving the instruction and that it would serve only to confuse the jury. The prosecutor pointed out that it was a model jury instruction used any time "there's alleged flight by the defendant." He added, however, that he would "leave it to the discretion" of the court whether to give the instruction. The court overruled the objection and approved the flight instruction.

The jury convicted the appellant of the felony of eluding law enforcement. Consistent with the recommendation of the jury, Graves was sentenced to six months in jail and a fine of $1,000.

II. ANALYSIS

The appellant contends that the trial court erred by granting the Commonwealth's flight instruction because it was improper in the context of the charged offense of eluding law enforcement and it confused the jury. The Commonwealth suggests that the instruction was proper and, alternatively, that any error as a result of giving the instruction was harmless.

The decision regarding granting or denying a jury instruction generally rests "in the sound discretion of the trial court." Cooper v. Commonwealth, 277 Va. 377, 381, 673 S.E.2d 185, 187 (2009). However, whether an instruction "accurately states the relevant law is a question of law" that the appellate court reviews de novo. Sarafin v. Commonwealth, 288 Va. 320, 325, 764 S.E.2d 71, 74 (2014) (quoting Lawlor v. Commonwealth, 285 Va. 187, 228, 738 S.E.2d 847, 870 (2013) ). This Court's "sole responsibility in reviewing" the trial court's decision "is to see that the law has been clearly stated and that the instructions cover all issues which the evidence fairly raises." Cooper, 277 Va. at 381, 673 S.E.2d at 187 (quoting Molina v. Commonwealth, 272 Va. 666, 671, 636 S.E.2d 470, 473 (2006) ). In our review of the propriety of a particular instruction, we look to the instructions as a whole. See

65 Va.App. 708

Hodge v. Commonwealth, 217 Va. 338, 346–47, 228 S.E.2d 692, 697–98 (1976) ; Jordan v. Commonwealth, 50 Va.App. 322, 329, 649 S.E.2d 709, 713 (2007).

As a preliminary matter, an instruction must be a correct statement of the applicable law. Morgan v. Commonwealth, 50 Va.App. 120, 133, 646 S.E.2d 899, 905 (2007). It also must be supported by "more than a scintilla" of evidence. Turman v. Commonwealth, 276 Va. 558, 564, 667 S.E.2d 767, 770 (2008) (quoting Porter v. Commonwealth, 276 Va. 203, 241, 661 S.E.2d 415, 434 (2008) ). In addition to these well-established principles, "[n]o instruction should be given ... ‘which would be confusing or misleading to the jury.’ " Mouberry v. Commonwealth, 39 Va.App. 576, 582, 575 S.E.2d 567, 569 (2003) (quoting Bruce v. Commonwealth, 9 Va.App. 298, 300, 387 S.E.2d 279, 280 (1990) ). Further, an instruction "may not ‘single out for emphasis a part of the evidence tending to establish a particular fact.’ " Terry v. Commonwealth, 5 Va.App. 167, 170, 360 S.E.2d 880, 882 (1987) (quoting Woods v. Commonwealth, 171 Va. 543, 548, 199 S.E. 465, 467 (1938) ). Finally, in this case, the challenged instruction was offered by the Commonwealth. Consequently, the burden was on

780 S.E.2d 907

the prosecutor to show that the proposed instruction was a "correct statement of the law, applicable to the facts of the case on trial, and expressed in appropriate language." Miller v. Commonwealth, 64 Va.App. 527, 547, 769 S.E.2d 706, 715 (2015) (quoting Shaikh v. Johnson, 276 Va. 537, 546, 666 S.E.2d 325, 329...