COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Fitzpatrick
Argued at Alexandria, Virginia
TROY NATHANIEL JOHNSON
v. Record No. 0672-94-4 OPINION BY
JUDGE SAM W. COLEMAN III
COMMONWEALTH OF VIRGINIA SEPTEMBER 26, 1995
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
William L. Winston, Judge
Janell M. Wolfe for appellant.
Marla Lynn Graff, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on brief,
for appellee.
Troy Nathaniel Johnson was convicted by a jury of malicious
wounding of a law enforcement officer and escape in violation of
Code § 18.2-478. Johnson contends that the trial court erred by
admitting into evidence an unredacted bench warrant which
disclosed that he had been convicted of robbery and use of a
firearm during the robbery. He also contends that the trial
court erred by denying his motion to strike the evidence on the
escape charge. We find no error and, therefore, affirm the
rulings of the trial court.
FACTS
Officer Thomas Hanula was on routine patrol in a marked
police vehicle in Arlington. At approximately 3:00 a.m., Hanula
observed a vehicle parked at the end of a dead end street. No
homes or driveways were nearby. When the headlights of Hanula's
police car shone on the parked car, the driver of the car
"started to drive off at a high rate of speed." Hanula
eventually stopped the driver of the vehicle for speeding.
When Hanula approached the vehicle, he recognized the
driver. There was a passenger in the car who would not identify
himself and whom Hanula could not see. Eventually, Officer
Hanula was able to see and recognize the passenger as Troy
Johnson, a person known by Hanula to have an arrest warrant
outstanding for failing to appear for sentencing on robbery and
firearms convictions. Hanula drew his weapon and moved toward
the passenger's side of the vehicle.
From that point on, the driver complied with Officer
Hanula's requests. The appellant, however, yelled for the driver
to "get the f--- out of here." Three other officers, including
Officer Douglas Johnson, arrived on the scene and removed the
driver from the vehicle. The driver's side door was left open.
When Officer Douglas Johnson saw appellant Johnson move toward
the open driver's side door, he believed that appellant was going
to exit the vehicle through that door. Instead, appellant jumped
into the driver's seat. Because Officer Johnson thought that the
appellant was going to flee and perhaps run over Officer Hanula,
who was in front of the car, Officer Johnson jumped through the
open driver's side door and grabbed the steering wheel. The
appellant and Officer Johnson struggled. Finally, the appellant
put the car in gear and drove away with Officer Johnson hanging
out the car door. Appellant drove the car at speeds of up to
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fifty miles per hour in a residential neighborhood while Officer
Johnson was hanging on and trying to get appellant to stop the
automobile.
The car door repeatedly hit the back of Officer Johnson's
body. Officer Johnson was eventually thrown from the car when
appellant crashed the vehicle into a wall. One of Officer
Johnson's legs was "grotesquely twisted," his foot was left
"hanging" from his leg, and bones were sticking out of exposed
flesh. The other officers on the scene arrested appellant.
Appellant contends that the trial court erred by admitting
into evidence a bench warrant because it disclosed that he had
been charged and convicted of other crimes. The bench warrant
stated:
You are hereby commanded to arrest TROY
NATHANIEL JOHNSON and bring him FORTHWITH
before the Circuit Court of Arlington County,
Virginia for his failure to appear on
August 28, 1992 for disposition, the original
charges being 2 counts of Robbery in
violation of Section 18.2-58 and 1 count of
Use of a Firearm in the Commission of a
Robbery in violation of Section 18.2-53.1.
ADMISSIBILITY OF BENCH WARRANT
The admissibility of evidence is within the broad discretion
of the trial court, and the trial court's ruling will not be
disturbed on appeal absent an abuse of discretion. Crews v.
Commonwealth, 18 Va. App. 115, 118, 442 S.E.2d 407, 409 (1994).
"'Evidence which bears upon and is pertinent to matters in issue,
and which tends to prove the offense, is relevant and should be
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admitted.'" Hunter v. Commonwealth, 15 Va. App. 717, 724, 427
S.E.2d 197, 202 (1993) (en banc) (quoting Minor v. Commonwealth,
6 Va. App. 366, 372, 369 S.E.2d 206, 209 (1988)).
In this case, in order to convict Johnson of escape in
violation of Code § 18.2-478, the Commonwealth had the burden of
proving beyond a reasonable doubt that Johnson was "lawfully in
the custody of a[] police officer on a charge of criminal
offense." Code § 18.2-478. To prove this statutory element that
Johnson was in custody "on a charge of criminal offense," the
Commonwealth introduced a bench warrant to prove that appellant
was wanted for a criminal offense and was subject to arrest for
failure to appear for sentencing in relation to a felony
conviction. Appellant contends that the trial judge should have
redacted from the warrant any mention of the robbery and firearm
charges because the nature of the charges added nothing to
whether he was in custody for purposes of escape.
As a general rule, "[e]vidence tending to show commission of
other offenses is not admissible in a criminal trial if its only
relevance is to show the character of the accused or his
disposition to commit a similar offense." Essex v. Commonwealth,
18 Va. App. 168, 171, 442 S.E.2d 707, 709 (1994). However, if
"evidence of another crime tends to prove 'any other relevant
fact of the offense charged, and is otherwise admissible, it will
not be excluded merely because it also shows [the defendant] to
have been guilty of another crime.'" Essex, 18 Va. App. at 171,
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442 S.E.2d at 709 (quoting Pugliese v. Commonwealth, 16 Va. App.
82, 91, 428 S.E.2d 16, 23 (1993)); see Farmer v. Commonwealth, 10
Va. App. 175, 179, 390 S.E.2d 775, 776-77 (1990), aff'd en banc,
12 Va. App. 337, 404 S.E.2d 371 (1991).
Given the Commonwealth's burden of proving every element of
the charged offense beyond a reasonable doubt, see In Re Winship
397 U.S. 358 (1970), 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 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 whether he was in lawful custody and
evidence of the nature of the charges was relevant to prove that
appellant was being arrested on criminal charges.
Evidence which incidentally reveals that an accused may have
been charged or convicted of other crimes may nevertheless be
admissible if it tends to prove a material fact or an element of
the charges. Day v. Commonwealth, 196 Va. 907, 914, 86 S.E.2d
23, 26-27 (1955). Because the nature of the charges was relevant
to prove that Johnson was being held "on a charge of criminal
offense," the trial court was not required to sanitize the
warrant by substituting in lieu of the stated charges that
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Johnson had failed to appear for sentencing on felony
convictions. See Scott v. Commonwealth, 228 Va. 519, 526-27, 323
S.E.2d 572, 577 (1994); Brown v. Commonwealth, 15 Va. App. 232,
235, 421 S.E.2d 911, 913 (1992). Accordingly, the trial judge
did not abuse his discretion by ruling that the prejudicial
effect of such evidence failed to outweigh its probative value.
See Lewis v. Commonwealth, 8 Va. App. 574, 579, 383 S.E.2d 736,
740 (1989) (en banc).
SUFFICIENCY OF EVIDENCE
Johnson contends that the evidence is insufficient to
support the conviction for escape because it did not prove that
he was in custody when he fled or, if in custody, that it was "on
a charge of criminal offense." On appeal, we view the evidence
in the light most favorable to the Commonwealth and grant to it
"all reasonable inferences fairly deducible therefrom."
Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,
537 (1975).
We find the evidence sufficient to prove that appellant was
in custody for purposes of proving an escape in violation of
Code § 18.2-478. A person is in custody for the purposes of
escape under this statute when by physical force, words, or
actions, that person becomes subject to the officer's control.
See Castell v. Commonwealth, 19 Va. App. 615, 617 n.1, 454 S.E.2d
16, 17 n.1 (1995). Thus, under the standard established in
Castell, if a person of ordinary intelligence and understanding
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would not feel free to leave under the circumstances, then he or
she is in "custody" for purposes of Code § 18.2-478.
Appellant was seated in the passenger's seat of the car when
Officer Hanula drew his gun. Upon request, the driver of the car
exited the vehicle, leaving appellant in the passenger's seat of
the car surrounded by several police officers. When Officer
Hanula drew his weapon, a person of ordinary intelligence would
not have felt free to leave and would have understood that he was
being taken into custody. Accordingly, appellant was in custody
at that point, and his flight from the scene was sufficient to
constitute an escape.
As to whether Johnson's custody was "on a charge of criminal
offense," the evidence proved that Officer Hanula knew that an
arrest warrant from Arlington was outstanding against Johnson for
"disposition of" robbery and firearms convictions. Officer
Hanula was attempting to arrest Johnson on that outstanding
warrant. Specifically, the bench warrant charged that the
appellant "failed to appear" for "disposition" on two counts of
robbery and one count of use of a firearm in the commission of
robbery. For reasons previously discussed, 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."
For the foregoing reasons, we affirm the convictions.
Affirmed.
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Benton, J., dissenting.
Troy Johnson was indicted and convicted of violating Code
§ 18.2-478, which provides in pertinent part, as follows:
[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.
Because the police officer never had control over Johnson's
person, I believe that Johnson was not in lawful custody and
could not be convicted of this crime. See Castell v.
Commonwealth, ___ Va. App. ___, ___, ___ S.E.2d ___, ___ (1995)
(en banc) (Benton, J., dissenting). Therefore, I dissent.
The evidence proved that at 3 a.m., a police officer stopped
the driver of a motor vehicle after the officer observed the
driver commit a traffic violation. Johnson was a passenger in
the motor vehicle. The officer testified that he recognized
Johnson and recalled that a bench warrant had been issued for
Johnson's arrest. He drew his weapon and instructed Johnson to
put his hands where they could be seen. He neither told Johnson
that he was under arrest nor told Johnson that a bench warrant
had been issued. The officer only instructed Johnson to put his
hands in view and exit the vehicle.
The officer testified that Johnson never obeyed his commands
to show his hands and that Johnson refused to leave the vehicle.
As the officer was pointing his weapon at Johnson and walking
toward his side of the vehicle, Johnson locked the door, screamed
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at the driver to drive off, and tried to shift gears on the
vehicle. When the driver got out of the vehicle, Johnson moved
to the driver's seat and drove off. Another officer hung onto
the vehicle as the vehicle moved forward at a high rate of
acceleration.
Assuming, without deciding, that a person is in custody for
purposes of this statute when that person is subject to an
officer's control by either physical control or control through
words or actions, the facts of this case dictate the conclusion
that Johnson was never subject to the officer's control. Thus,
he was not in lawful custody. The record is clear that the
officer never had actual physical control over Johnson.
The officer also did not effect custody when he pointed a
weapon at Johnson. In Woodson v. Commonwealth, 245 Va. 401, 429
S.E.2d 27 (1993), our Supreme Court held that a suspect is not
"seized" within the meaning of the Fourth Amendment when the
suspect does not submit to an officer's show of authority. Id.
at 405-06, 429 S.E.2d at 29. Woodson argued that when a police
officer armed with an automatic pistol confined him in a vehicle
and "ordered him to place his hands where [he] could see them,"
he was seized because "had he attempted to leave the vehicle,
[the officer] would have seized him by physical force." Id. The
Court rejected the argument that a "reasonable person would have
assumed under the circumstances" that he or she was seized and
stated that Woodson's resistance indicated that he did not submit
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to the officer's show of authority. Id. Thus, Woodson was not
"seized." Id.
Likewise, Johnson's resistance to the officer proved that he
was not seized. Because Johnson was not seized, he could not
have been in custody as required by Code § 18.2-478.
Moreover, even if, for purposes of Code § 18.2-478, custody
means detention, that statute does not apply except when "the
custody . . . [is] on a charge of criminal offense." The
evidence proved that the officer did not inform Johnson that he
was being arrested. When the purpose of the detention had not
been communicated to him, Johnson cannot be said to have
"escap[ed]" from the custody of the officer "on a charge of a
criminal offense." Inherent within the statutory meaning of the
word, "escapes," is the person's knowledge that he was being held
"on a criminal charge" and intended to escape from such custody.
Thus, even a detention at the point of a weapon does not prove
that the person is in custody "on a charge of criminal offense"
when the purpose of the detention has not been communicated.
Because the evidence established merely that the officer sought
to detain Johnson without ever communicating to Johnson that he
was the subject of an outstanding arrest warrant, I would hold
the evidence was insufficient to prove that Johnson was "in the
custody of [a] police officer on a charge of criminal offense,"
the necessary requirement for a conviction under Code § 18.2-478.
For these reasons, I would reverse the conviction.
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Therefore, I dissent.
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