COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Senior Judge Hodges
Argued at Richmond, Virginia
THOMAS G. PAYTES, S/K/A
THOMAS GLENN PAYTES
MEMORANDUM OPINION* BY
v. Record No. 2681-02-2 JUDGE JAMES W. BENTON, JR.
FEBRUARY 17, 2004
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF GREENE COUNTY
Daniel R. Bouton, Judge
Helen E. Phillips for appellant.
Alice T. Armstrong, Assistant Attorney General (Jerry W. Kilgore,
Attorney General, on brief), for appellee.
The trial judge convicted Thomas G. Paytes of the felony of disregarding a law enforcement
officer’s signal to stop while driving in an endangering manner. Code § 46.2-817(B). Paytes
contends the evidence failed to prove venue was proper and, further, was insufficient to prove the
statutory element of endangerment necessary to support a felony conviction. We affirm the
conviction.
I.
The evidence at trial proved that Captain Scott Haas of the Greene County Sheriff’s
Department was in an unmarked car on Route 29 in Greene County at two o’clock in the morning,
when Paytes drove by him at a high speed. He estimated Paytes’s speed to be in excess of eighty
miles per hour in an area where the speed limit was posted as forty-five miles per hour. Captain
Haas contacted Officer Greg Stang, whom he knew was ahead on the highway, and told Officer
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Stang to use his radar to detect Paytes’s speed. Captain Haas activated his car’s lights and siren and
began following Paytes’s speeding car.
Officer Stang was in his marked patrol vehicle in the median of Route 29, south of its
intersection with Route 33, when his radar indicated Paytes was driving at a speed of ninety-three
miles per hour in the forty-five mile-per-hour zone. Officer Stang activated his lights and siren and
followed Paytes. Paytes failed to stop and continued north on Route 29, while Officer Stang and
Captain Haas pursued him. Officer Stang testified that Paytes increased his speed to one hundred
and five miles per hour and was “weaving in and out of the lines.” He also testified that although
there was not a lot of traffic, Paytes was passing other vehicles without signaling and “was having
trouble staying between the single lane.” Just beyond the intersection of Route 29 and Route 33,
Officer Stang closed the distance enough to identify Paytes’s license tag.
The pursuit went from Greene County into Madison County, which abutted Greene County
approximately three and eight tenths miles north of the intersections of Route 29 and Route 33. The
three vehicles continued through Madison County into Culpeper County, where Paytes left Route
29 and drove onto Route 15. On Route 15, the vehicles left Culpeper County, re-entered Madison
County, and continued toward Orange County. Officer Stang testified that the speeds of the
vehicles never substantially slowed during the pursuit and that his own speed ranged from one
hundred and five to one hundred and ten miles per hour. As they drove through Madison County
and toward an area on Route 15 where several police vehicles were waiting with their lights
activated, Officer Stang lost sight of Paytes’s car. About eight minutes after he lost sight of Paytes’s
car, Officer Stang saw Paytes’s car returning at a high speed toward Culpeper County. After
receiving a report of Paytes’s direction change, a Culpeper officer followed Paytes at a high speed
from Madison County toward Culpeper County, where officers placed spikes on the highway.
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Paytes’s car went over the spikes in Culpeper County, continued forward on disabled tires, and later
went into a ditch.
After the Commonwealth completed its case-in-chief, Paytes’s sister testified that she
measured the distance on Route 29 between the Madison County line and the intersection of Route
29 with Route 33 in Greene County and that the distance was 3.2 miles. Paytes also introduced as
evidence and played in open court the videotape of a portion of the pursuit Officer Stang recorded
on a monitor in his patrol vehicle.
At the conclusion of the evidence, the trial judge convicted Paytes of driving in willful and
wanton disregard of the officer’s signal to stop so as to create an endangerment in violation of Code
§ 46.2-817(B).
II.
Paytes contends the trial judge erred by finding venue proper in Greene County. We
disagree.
As a general rule, the venue statute requires “the prosecution of a criminal case . . . be had in
the county or city in which the offense was committed.” Code § 19.2-244. The rule is well
established that this venue statute requires the Commonwealth to “produce evidence sufficient to
give rise to a ‘strong presumption’ that the offense was committed within the jurisdiction of the
court, and this may be accomplished by either direct or circumstantial evidence.” Cheng v.
Commonwealth, 240 Va. 26, 36, 393 S.E.2d 599, 604 (1990) (citation omitted); Harding v.
Commonwealth, 132 Va. 543, 548, 110 S.E. 376, 378 (1922).
At the time of Paytes’s conduct, Code § 46.2-817(B) provided, in pertinent part, as follows:
Any person who, having received a visible or audible signal
from any law-enforcement 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.
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Paytes argues that the evidence did not support a conclusion that he “endangered the
operation of the law-enforcement vehicle or another person within Greene County.” He relies in
large measure upon our holding in Thomas v. Commonwealth, 38 Va. App. 319, 563 S.E.2d 406
(2002), where we reversed a felony conviction for failure to prove venue under an earlier version
of Code § 46.2-817.1 The earlier version of the statute provided, however, that if serious bodily
injury to another resulted from a violation of the proscribed conduct, the offender was guilty of a
felony. 38 Va. App. at 324, 563 S.E.2d at 408-09. The evidence proved Thomas drove through
several jurisdictions, including Arlington where he was tried, before he injured a person in a
crash in Fairfax County. In reversing the felony conviction, we held as follows:
In the instant case, [Thomas] engaged in a continuous course
of reckless and dangerous driving behavior. All elements required
for the misdemeanor offense defined in Code § 46.2-817 were
complete in both Arlington County and Fairfax County. . . .
[Thomas] could be tried in either venue on that offense. However,
the felony offense of speeding to elude resulting in serious bodily
injury was not complete until the accident in Fairfax County
injured the victim . . . . That element of the felony offense did not
occur in Arlington County and, thus, venue was improper in that
jurisdiction.
Thomas, 38 Va. App. at 325, 563 S.E.2d at 409.
Paytes contends that “[j]ust as the . . . offense in Thomas . . . was not complete until the
accident, [his] offense was not complete until his vehicle was stopped in Madison County.” This
argument, however, fails to account for the change in the statute. Because of the change in the
statute since Thomas, the venue in this prosecution is determined not by the situs of a serious
1
As we noted in Thomas, prior to July 1, 2000, Code § 46.2-817 provided that a criminal
offense occurred when any person failed to stop after receiving a signal from a law-enforcement
officer and drove in willful and wanton disregard of the signal so as to create an endangerment.
38 Va. App. at 323-24, 563 S.E.2d at 408. In this regard, a portion of the statute we addressed in
Thomas was similar to the version of Code § 46.2-817 applicable to Paytes. The current version
of Code § 46.2-817, however, contains a significant change that causes Thomas to be
distinguishable from this case.
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bodily injury but, rather, by the place where endangerment occurred. As required under the
version of Code § 46.2-817(B) in effect at the time of Paytes’s conduct, the issue is whether the
evidence was sufficient to raise a “strong presumption” that Paytes’s conduct in Greene County
endangered the operation of the law-enforcement vehicle or a person.
As we have recited in Part I of the opinion, the evidence proved Paytes was driving in
excess of ninety miles per hour when the radar registered his speed in Greene County. The
officer testified that Paytes’s speed increased beyond one hundred miles per hour after the officer
activated his lights and siren and joined the pursuit. The officer also testified that Paytes was
moving as though not fully in control of his vehicle and was passing other cars without signaling.
Paytes also drove at this excessive speed through an intersection of two highways in Greene
County that was controlled by a traffic signal. The trial judge believed this testimony and found
that although “there was not a great deal of other traffic on the highway . . . , there were other
vehicles on the road . . . both the length of time during which this activity occurred in Greene
County and the span of distance over which it took place.” We hold that the evidence in the
record supports the judge’s findings and that the record supports his ruling on venue because the
evidence permitted a strong inference that Paytes’s conduct on the roadway in Greene County
endangered both the law-enforcement vehicle and other persons.
III.
In addition to challenging venue, Paytes contends the evidence was insufficient to prove
beyond a reasonable doubt the statutory elements necessary to support a felony conviction. He
argues that the evidence proved only a misdemeanor.
The statutory element that distinguishes the felony offense under subsection B of Code
§ 46.2-817 from the misdemeanor offense under subsection A is the requirement to prove the
driving was performed “so as to interfere with or endanger the operation of a law-enforcement
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vehicle or endanger a person.” Explaining the “endangerment” element necessary for
establishing a felonious violation of Code § 46.2-817, we reasoned in Tucker v. Commonwealth,
38 Va. App. 343, 564 S.E.2d 144 (2002), that “a manifest purpose of the statute is to protect the
public against a driver eluding police ‘so as to . . . endanger a person’” and, thus, we held that
“conduct that raises the specter of endangerment is the evil contemplated and proscribed by the
statute.” Id. at 347, 564 S.E.2d at 146.
It is a fundamental principle, of course, that, when a challenge is raised to the sufficiency
of evidence to support a conviction, we must “examine the evidence in the light most favorable
to the Commonwealth, the prevailing party below, granting to that evidence all reasonable
inferences deducible therefrom.” Nowlin v. Commonwealth, 40 Va. App. 327, 331, 579 S.E.2d
367, 369 (2003). In Part I of this opinion, we recited the evidence pertaining to the incidents of
Paytes’s driving conduct. In view of this evidence, the trial judge made extensive findings
concerning Paytes’s driving in Greene County. A succinct portion of the judge’s findings are as
follows:
Here the officer testified that he observed a reading of ninety-three
. . . miles per hour in a forty-five . . . mile per hour zone. The
Court notes that this is observing a vehicle, in effect, that’s
traveling forty-eight . . . miles per hour over the speed limit on a
public highway. In addition, the officer in his pursuit described
how the speeds picked up to rates that were significantly greater
than the ninety-three . . . miles per hour. The chase continued
through an intersection on a public highway. There was a
description of weaving in and out of lanes. There was a statement
by the officer that there was not a great deal of other traffic on the
highway. However, there were other vehicles on the road and . . .
both the length of time during which this activity occurred in
Greene County and the span of distance over which it took place
supports the [conclusion] that in this particular case and under
these particular circumstances the operation of the vehicle was
such that it endangered the operation of the law enforcement
vehicle or a person.
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The evidence in the record, which is summarized in Part I, supports these findings. We
hold, therefore, that the evidence was sufficient to prove beyond a reasonable doubt the elements
of Code § 46.2-817(B), and we affirm the felony conviction.
Affirmed.
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