FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE. Marjorie T. Arrington, Judge.
Kathleen A. Ortiz, Public Defender, for appellant.
Craig W. Stallard, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Present: Chief Judge Huff,[*]
Judges Chafin and Decker.
[64 Va.App. 333] OPINION
Isiah David Joseph appeals his conviction for resisting arrest, in violation of Code § 18.2-479.1. He contends that the evidence was insufficient to support his conviction because the Commonwealth failed to prove that he fled from a law enforcement officer and, consequently, he could not be guilty of resisting arrest. The Commonwealth concedes that the trial court erred in this finding and, therefore, agrees that the conviction must be reversed. Upon our independent review, we hold, as a matter of law, that the evidence was insufficient to prove that the appellant fled from a law enforcement officer, a necessary element of the offense of resisting arrest. Therefore, we reverse the conviction.
I. FACTS AND PROCEDURAL HISTORY
The appellant was tried by the circuit court de novo, sitting without a jury, on a misdemeanor appeal from a conviction of [64 Va.App. 334] resisting arrest. On appeal to this Court, the record contains an agreed upon statement of facts.
On the morning of April 18, 2013, Officer Frank Chappell of the Chesapeake Police Department was operating stationary radar in the city. He stopped a vehicle being driven by the appellant for traveling forty miles per hour in a twenty-five mile-per-hour zone. Chappell approached the vehicle and asked the appellant for identification. The appellant informed the officer that he did not have identification but provided his name and social security number. The officer " ran" the appellant's information and determined that there were active warrants for his arrest.
Chappell informed the appellant about the warrants and told him that he would have to take him into custody. The appellant became " argumentative." The officer asked the appellant several times to get out of the car, but the appellant refused and continued to argue about the warrants. According to Chappell, " the [appellant] looked like he was going to drive away since [he] kept looking away from the officer." In light of this behavior, Chappell opened the driver's door while the appellant continued to argue with him. The appellant eventually removed his seat belt and, after repeated commands from the officer, got out of the car. Chappell stood " such that the [appellant] remained between the officer and the door opening to the car, and was never out of arm's reach from Officer Chappell."
Chappell asked him to turn around and place his hands on the car so that the officer could search him. The appellant argued with him and ignored his commands. As Chappell began to search the appellant, he " backed up on to the officer." Chappell told the appellant not to back up and placed his hand on the appellant's back in order to stop him from doing so. The officer told the appellant to place his hands behind his back. The appellant " began breathing heavily" [64 Va.App. 335] and repeatedly " refused to comply," specifically stating that he was not going to put his hands behind his back. Chappell grabbed the appellant's right wrist and placed a handcuff on it. The appellant pulled away and then swung his wrist out of the handcuff. Chappell grabbed the other wrist and repeatedly warned the appellant to stop resisting, but the appellant continued to repel the officer's efforts to secure the handcuffs on him.
Officer Chappell told the appellant to relax and place his arms behind his back, but the appellant repeatedly pulled away from the officer. Chappell then requested additional officers for backup and told the appellant that he was going to be " taken down and sprayed." The appellant continued " trying to get away by swinging his hands out of the handcuffs and not complying with the demands." Once backup arrived, Chappell was able to handcuff the appellant. Throughout the encounter, the appellant " did not leave the scene" and remained " continuously in . . . close proximity" to Officer Chappell. " Based on the [appellant's failure to] comply with the officer's commands, . . . swinging his arms out of the handcuffs, and [the need for] additional officers' assistance . . . to place handcuffs on [the appellant], [he] was placed under arrest for resisting arrest."
The appellant moved to strike the Commonwealth's case, arguing that the evidence presented did not prove flight. The trial court denied the motion, holding that " the defendant's actions in the struggle with the officer constituted flight." The appellant did not present evidence and renewed the motion to strike. The trial court ruled " that the evidence was sufficient for a finding of guilt" but continued the case in order to provide the appellant an opportunity to produce case law on what constituted flight under Code § 18.2-479.1. The appellant was unable to provide authority for the court but reiterated the argument that flight was a necessary element of the offense and, based on the " common sense" definition, the appellant's actions did not constitute flight. The court ruled that the ...