Tucker v. Com., Record No. 1594-01-2.

• Decision Date: 28 May 2002
• Docket Number: Record No. 1594-01-2.
• Citation: 38 Va. App. 343,564 S.E.2d 144
• Parties: Tommie Lee TUCKER, s/k/a Tommie Lee Tucker, Jr. v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

564 S.E.2d 144

38 Va. App. 343

Tommie Lee TUCKER, s/k/a Tommie Lee Tucker, Jr. v. COMMONWEALTH of Virginia.

Record No. 1594-01-2.

Court of Appeals of Virginia, Richmond

May 28, 2002.

Michael L. Freshour, Assistant Public Defender, for appellant.

Susan M. Harris, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: ELDER, BRAY and ANNUNZIATA, JJ.

BRAY, Judge.

Tommie Lee Tucker, Jr. (defendant) was convicted in a bench trial of eluding a police officer in violation of Code § 46.2-817(B), a felony. On appeal, defendant challenges the sufficiency of the evidence to prove his conduct "interfere[d] with or endanger[ed] the operation of the law-enforcement vehicle or endanger[ed] a person." Finding no error, we affirm the conviction.

I.

The evidence is uncontroverted. At approximately 10:40 p.m. on the evening of October 27, 2000, State Trooper David Cooper was operating mobile radar while traveling westbound on a two-lane highway in Halifax County. An eastbound red Mustang driven by defendant was detected traveling "seventy-three in a fifty-five mile per hour zone," and Cooper "immediately turned around and began to overtake" the ear. When "it looked like [defendant] was fixing to" cross a "double solid line" and "pass a van," Cooper activated his "blue lights and siren." "[S]imultaneously," defendant entered the westbound lane, passed the van and continued east, "passing two other vehicles," with Cooper in pursuit.

When defendant reached the controlled intersection with "US 360," a four-lane highway, the "light in his direction of travel was red," but defendant "continued on through without stopping." Cooper slowed as he approached the intersection, the traffic signal "turned green," and he continued to follow defendant along State Route 344, reaching speeds "in excess of a hundred and five [m.p.h.] trying to catch him." The chase continued through Scottsburg, where Cooper again slowed his vehicle, only to resume speeds of "eighty, eighty-five [m.p.h.]" in pursuit of defendant.

Beyond Scottsburg, "approximately threequarters of a mile" from the intersection with U.S. 360, the Mustang "slid off" the road and into a tree. Before Cooper could reach the vehicle, defendant "came out from the driver's seat," "jumped into the woods and ran." Apprehended and arrested at "approximately 4:09 a.m." the following morning, defendant explained he fled because "he had just gotten out of jail ... and didn't want to go back."

At the conclusion of all the evidence, defendant moved the court to "strike the felony." Conceding "there's no question ... [he] didn't stop" for Cooper's "audible and visual sign," admittedly conduct sufficient to establish "misdemeanor eluding" and "reckless driving," defendant maintained that such evidence was insufficient to prove a felonious violation of Code § 46.2-817(B). The court overruled the motion and convicted defendant of feloniously eluding Cooper, resulting in the instant appeal.

II.

Code § 46.2-817 provides, in pertinent part:

A. Any person who, having received a visible or audible signal from any lawenforcement officer to bring his motor vehicle to a stop, drives such motor vehicle in a willful and wanton disregard of such signal or who attempts to escape or elude such law-enforcement officer, shall be guilty of a Class 3 misdemeanor . .

B. Any person who, having received a visible or audible signal from any lawenforcement officer to bring his motor vehicle to a stop, drives 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 shall be guilty of a Class 6 felony . . . .

C. When any person is convicted of a misdemeanor under this section, in addition to the other penalties provided in this section, the driver's license of such person may be suspended by the court for a period of not less than thirty days nor more than one year. However, in any case where the speed of such person is determined to have exceeded the maximum allowed by twenty miles per hour, his driver's license shall be suspended by the court trying the case for a period of not less than ninety days ....

Contending the legislature did not intend "reckless driving, without more," sufficient "to convict a person eluding the police of a felony," defendant urges us to construe Code § 46.2-817(B) to require proof that the "driving actually endangered a person."

In support of his argument, defendant points to Code § 46.2-817(C), which provides an enhanced punishment for a violation of Code § 46.2-817(A), "a misdemeanor," when the offense is accompanied by speed in excess of "the maximum allowed by twenty miles per hour." Code § 46.2-817(C) (emphasis added). Because such conduct is deemed reckless driving by Code § 46.2-862, defendant reasons reckless driving gives rise only to a violation of Code § 46.2-817(A), a misdemeanor.

Well established ...