PRESENT: All the Justices
KENTON DEON HUBBARD
v. Record No. 071567 OPINION BY
JUSTICE S. BERNARD GOODWYN
COMMONWEALTH OF VIRGINIA June 6, 2008
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether the evidence was
sufficient to sustain a conviction for felonious escape from
custody, in violation of Code § 18.2-478, when there was no
written criminal complaint or formal accusation against the
person who escaped from custody.
In the Circuit Court of Campbell County, Kenton Deon
Hubbard (”Hubbard”) was convicted of felonious escape from
custody. The Court of Appeals denied Hubbard's petition for
appeal of that conviction. This appeal ensued.
On February 18, 2005, State Trooper Scott Cash initiated
a traffic stop of a car, driven by Hubbard, because the window
tint appeared improper and Hubbard was not wearing a seatbelt.
When Cash activated his vehicle’s emergency lights to make the
traffic stop, Hubbard’s car, which was originally in the
right-hand lane, merged into the left-hand lane. Hubbard’s
car then sped up to approximately 85 miles per hour in an area
with a posted speed limit of 55.
After a ten-mile chase, Hubbard made a left-hand turn
into a residential yard. Hubbard stopped the car, got out,
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and ran behind the house. Cash chased Hubbard who ran into a
wooded area behind the house. Cash continually yelled, “State
[p]olice, police, stop, you’re under arrest . . . .”
Approximately 70 yards into the woods, Cash caught up
with Hubbard and tackled him to the ground. Hubbard resisted
by punching, kicking, and elbowing Cash. Cash stated, “Stop
resisting, you’re under arrest.” Eventually the men were
positioned such that Hubbard was on his stomach with Cash on
top of him. Cash testified to the following:
At that point I - after struggling with the driver,
I was temporarily – I was able to temporarily
restrain him with pepper mace. I sprayed him in
the face. I maintained contact with his left hand
and once I went with my right hand to my handcuffs,
he was able to kick back, he kicked with his feet,
his arms and hit me and knocked me off of him, and
he escaped from my custody at that point.
Hubbard ran approximately 200 yards before Cash lost
visual contact, at which time Cash ceased his pursuit.
Cash returned to his car and requested “backup” and a
canine unit.
The trial court found Hubbard guilty of felonious escape
from custody. Hubbard appealed to the Court of Appeals. The
Court of Appeals, noting that Hubbard’s petition concerning
the felonious escape conviction only raised custody and double
jeopardy arguments as a basis for reversing the conviction,
denied Hubbard’s petition for appeal.
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On appeal to this Court, Hubbard challenges the
sufficiency of the evidence to sustain his conviction for
felonious escape from custody in violation of Code § 18.2-478.
Hubbard argues, as he did in the trial court and the Court of
Appeals, that he was never in Cash’s custody. While Hubbard
focuses on the issue of whether he was ever in custody, the
dispositive question, which is included in Hubbard’s
assignment of error, is whether the Commonwealth was required
to prove, as an element of the offense, that Hubbard was in
custody “on a charge of criminal offense” when he allegedly
escaped.
The Commonwealth has the burden to prove every essential
element of the charged crime beyond a reasonable doubt.
Washington v. Commonwealth, 273 Va. 619, 623, 643 S.E.2d 485,
487 (2007). An accused cannot be convicted of a crime unless
the Commonwealth meets its burden of proof. See id. at 629,
643 S.E.2d at 490. “[A]n essential of the due process
guaranteed by the Fourteenth Amendment [is] that no person
shall be made to suffer the onus of a criminal conviction
except upon sufficient proof – defined as evidence necessary
to convince a trier of fact beyond a reasonable doubt of the
existence of every element of the offense." Jackson v.
Virginia, 443 U.S. 307, 316 (1979).
First, we must determine the elements of the offense.
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Hubbard was convicted of felonious escape from custody under
Code § 18.2-478, which states in relevant part:
[I]f 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.
(Emphasis added.) The plain language of the statute indicates
that the Commonwealth must prove that the accused was in the
custody of the police officer, that the accused was charged
with a criminal offense before he was taken into custody, and
that the accused escaped from such custody by force or
violence. The Commonwealth must prove all three elements
beyond a reasonable doubt before the accused can be found
guilty of felonious escape from custody, as defined in Code
§ 18.2-478.
Although this Court has never addressed what constitutes
being taken into custody “on a charge of criminal offense,”
the Court of Appeals considered the issue in Coles v.
Commonwealth, 44 Va. App. 549, 605 S.E.2d 784 (2004). In
Coles, the defendant appealed his conviction under Code
§ 18.2-478 arguing that the Commonwealth failed to prove he
was taken into custody “on a charge of criminal offense.” Id.
at 553, 605 S.E.2d at 786. In Coles, the Commonwealth claimed
that probable cause to arrest satisfies the element in Code
§ 18.2-478 requiring the Commonwealth to prove the defendant
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was taken into custody “on a charge of criminal offense.” Id.
at 557, 605 S.E.2d at 787. However, the Court of Appeals
rejected the Commonwealth’s argument and held, “[I]n order to
sustain a conviction for escape under Code § 18.2-478, the
evidence must prove beyond a reasonable doubt that the
defendant was taken into custody ‘on a charge of criminal
offense.’ Probable cause to arrest will not satisfy this
element of the offense.” Id. at 561, 605 S.E.2d at 790. We
agree with, and adopt, the Court of Appeals’ holding in Coles.
The plain language of Code § 18.2-478 requires the
Commonwealth to prove that the defendant was taken into
custody “on a charge of criminal offense.” “A criminal
charge, strictly speaking, exists only when a formal written
complaint has been made against the accused and a prosecution
initiated.” United States v. Patterson, 150 U.S. 65, 68
(1893). The word “charge” is defined by Black’s Law
Dictionary 248 (8th ed. 2004), as a “formal accusation of an
offense as a preliminary step to prosecution.” Thus, the
phrase, “on a charge of criminal offense,” clearly
contemplates a formal accusation upon which a trial court
could act and pass judgment. Therefore, to sustain a
conviction under Code § 18.2-478, the evidence must show the
defendant was taken into custody pursuant to a written charge;
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probable cause to arrest will not suffice to satisfy the “on a
charge of criminal offense” element stated in Code § 18.2-478.
The Commonwealth did not introduce any evidence that
there was a written charge against Hubbard at the time he was
allegedly taken into custody by Cash. Considering the plain
language of Code § 18.2-478, it is clear the Commonwealth
failed to prove beyond a reasonable doubt that Hubbard
violated that statute, and Hubbard should not have been
convicted of felonious escape from custody. Thus, the Court
of Appeals erred in affirming the trial court’s judgment
rendering that conviction.
For these reasons, we conclude that the evidence was
insufficient, as a matter of law, to sustain Hubbard’s
conviction under Code § 18.2-478. We will therefore reverse
the judgment of the Court of Appeals and dismiss the
indictment.
Reversed and dismissed.
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