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Jones v. Commonwealth

Court of Appeals of Virginia

February 18, 2015

ANTWAIN MAURICE JONES
v.
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY. Louise M. DiMatteo, Judge.

William H. Miller, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.

Susan Baumgartner, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Humphreys, Beales and McCullough.

OPINION

Page 271

[64 Va.App. 363] RANDOLPH A. BEALES, JUDGE

Antwain Maurice Jones (appellant) appeals his conviction for felony eluding in violation of Code § 46.2-817(B). Appellant contends that the trial court erred in denying his motion to strike on the ground that " the evidence was that the defendant stopped upon receiving a visible and audible signal from the police officer." We hold that the trial court did not err when it denied appellant's motion to strike the Commonwealth's evidence on the felony eluding charge, and, accordingly, for the following reasons, we affirm appellant's conviction for felony eluding.

I. Background

We consider the evidence on appeal " 'in the light most favorable to the Commonwealth, as we must since it was the prevailing party'" in the trial court. Beasley v. Commonwealth, 60 Va.App. 381, 391, 728 S.E.2d 499, 504 (2012) (quoting Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004)).

In this case, Officer Stephen Smith of the Arlington Police Department testified that, on March 31, 2011, he and Corporal Trainer were driving in a marked police cruiser when Officer Smith noticed a vehicle that was driving behind him very slowly. It was later determined that appellant was the driver of the vehicle. In an effort to see if the vehicle would catch up with him, Officer Smith stopped fifteen feet before the stop line at a stoplight. The vehicle did not pass Officer Smith's cruiser and stayed behind the police cruiser and to the left. At that point, Officer Smith rolled down the driver's side window, stuck his head out, and asked appellant and the passenger if they needed any help or were lost. The occupants indicated that " they were good." The vehicle soon passed Officer Smith. Officer Smith continued behind the vehicle " to investigate a possible DUI." [1]

[64 Va.App. 364] Eventually, Officer Smith initiated a traffic stop of the vehicle using his vehicle's emergency lights and sirens. In response to the emergency lights and sirens, the vehicle came to a stop in a parking lot of a 7-Eleven. Officer Smith approached the front driver's side, where appellant was seated, and Corporal Trainer approached the front passenger side of the vehicle, where the other occupant was sitting. At that point, Officer Smith asked appellant for his license and registration. Appellant did not respond at all. Officer Smith repeated his request. It appears from the record that appellant also did not respond to the second request. While asking appellant some basic questions, such as from where he was coming and to where he was headed, Officer Smith was able to detect an odor of alcohol on appellant's breath. Officer Smith then asked appellant to remove the keys from the ignition and hand them to Officer Smith. Appellant did not respond. Officer Smith repeated his request, at which point appellant removed the keys from the ignition and " just kept them in his hand."

Shortly after requesting the keys, Officer Smith heard the passenger say to appellant, " Just go." In an effort to prevent appellant from driving off, Officer Smith reached into the vehicle from the front driver's side to try to get the keys. Before Officer Smith could retrieve the keys, however, appellant began

Page 272

to drive the vehicle away from the scene. As appellant was driving away, both Officer Smith and Corporal Trainer were partially inside the vehicle. According to Officer Smith, the " top part of me was in the vehicle" as appellant drove out of the parking lot of the 7-Eleven. Officer Smith had been trying to prevent appellant from driving the vehicle away, but ...


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