Peters v. Commonwealth

72 Va.App. 378

846 S.E.2d 23

Neal Andrew PETERS

v.COMMONWEALTH of Virginia

Record No. 1001-19-3

Court of Appeals of Virginia.

AUGUST 4, 2020

Kieran Bartley, Assistant Public Defender, for appellant.

Craig W. Stallard, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Chief Judge Decker, Judges Beales and AtLee

OPINION BY JUDGE RANDOLPH A. BEALES

At the conclusion of a bench trial, Neal Andrew Peters was convicted of two counts of felony assault and battery of a law enforcement officer, one count of felony eluding police, one count of misdemeanor driving on a suspended license, one count of misdemeanor reckless driving, and one count of misdemeanor attempting to flee from a law enforcement officer. Peters now challenges his conviction for attempting to flee from a law enforcement officer in violation of Code § 18.2-460(E).

I. BACKGROUND

In accordance with established principles of appellate review for a sufficiency of the evidence case, we view the "evidence in the light most favorable to the Commonwealth, as we must since it was the prevailing party in the trial court." Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555 (2004). "We also accord the Commonwealth the benefit of all inferences fairly deducible from the evidence." Id. at 303, 601 S.E.2d 555.

Officer John Hill of the City of Buena Vista Police Department testified¹ that, while he and another officer were in a patrol vehicle on December 1, 2018, Officer Hill saw a silver vehicle make "an illegal u-turn" that "almost caused an accident." Officer Hill stated that he turned on his emergency equipment to stop the vehicle, and the vehicle then "came to a rest" at a traffic light but then "sped off through the [ ] red traffic light." Hill said he drove at "above sixty" miles per hour to catch up to the vehicle, which was "well above the posted speed limits." Hill testified that the vehicle first turned right at an intersection, then "turned immediately left into an alleyway." Hill said that he followed the vehicle into the alleyway and that, as the two vehicles exited the alleyway, "there was a large dip in the roadway." He said that, while he was driving his vehicle through the dip, the other vehicle was backing up with its reverse lights activated and that as Hill brought his vehicle to a stop, the two vehicles collided and both vehicles came to a stop.² Hill testified that, when the other vehicle collided with his vehicle, it was driving at a speed of less than five miles per hour.

Officer Hill said that, after both vehicles stopped, he saw Peters exit the driver's door of the vehicle³ and observed that Peters was holding a black object in his hand. Hill testified that he drew his weapon and "instructed him to stop and show me his hands." Hill stated that he then saw Peters fall to the ground from getting tangled in his seatbelt, and, as Peters fell, Hill realized the black item in his hand was a phone. Hill stated that upon seeing the item was a phone, he "switched from [his] duty weapon to the taser" and "instructed him to stop." However, he said that Peters "jumped up and ran." Hill said that he chased Peters on foot and stated, "I did give him commands of taser three times" before activating the taser. Hill testified that when he used his taser, Peters fell on the road and Hill placed himself on top of Peters, with his chest on Peters's back. (Peters also testified that he was tasered by Officer Hill multiple times and that Officer Hill placed himself on top of Peters.) Hill testified that once he was on top of him, Peters "kept pulling and wrestling" despite Hill's commands to give Hill his hands, which Peters disputes. Hill said that he tried to grab Peters's hands and attempted to use his taser again, but the taser did not work. Hill further testified that Peters tried to ingest something, and after the two "continued to tussle a little bit," Hill was ultimately able to take Peters into custody with the assistance of another police officer who had arrived. Peters testified that he did not try to ingest anything and did not wrestle or struggle with the officer. Hill said that after Peters was taken into custody and "Mirandized," Peters told him the reason he had run was that he had a suspended driver's license.

Peters was subsequently charged with the felony of eluding police, misdemeanor driving on a suspended license, misdemeanor reckless driving, misdemeanor attempting to flee from a law enforcement officer, and two counts of felony assault and battery of a law enforcement officer. Peters pled guilty to felony eluding, driving on a suspended license, and reckless driving, but pled not guilty to the two charges of assault and battery of a law enforcement officer as well as to the charge of attempting to flee from a law enforcement officer. During closing argument, Peters argued that the Commonwealth had not "made its burden of proof on obstruction."⁴ The Circuit Court of the City of Buena Vista found Peters guilty of all charges. In finding Peters guilty, the trial court stated:

I think the obstruction was when the officer repeatedly kept saying give me your hands. Why won't you give me your hands? He would not comply with the order to put his hands behind his back and that happened any number of times Officer Hill said. And then he went on to the what are you putting in your mouth but that all started when he was trying to get his hands behind his back so he could cuff him so I believe the evidence is sufficient for obstruction and I'm going to find him guilty of that.

On appeal, Peters challenges his conviction for attempting to flee from a law enforcement officer.⁵

II. ANALYSIS

A. Sufficiency of the Evidence

Peters argues that the evidence is insufficient for his conviction for attempting to flee from a law enforcement officer. This assignment of error, as set forth in his petition for appeal, states:

[T]he trial court erred in finding Petitioner guilty of violating 18.2-460, obstructing justice, by using the wrong standard for determining obstruction. The court ruled that Petitioner's not complying with an order from law enforcement was, by itself, sufficient to prove obstruction. Virginia case law is clear, however, that avoidance is not the same as resistance or opposition.

When considering the sufficiency of the evidence on appeal, "a reviewing court does not ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ " Crowder v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d 384 (2003) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788–89, 61 L.Ed.2d 560 (1979) ). "Viewing the evidence in the light most favorable to the Commonwealth, as we must since it was the prevailing party in the trial court," Riner, 268 Va. at 330, 601 S.E.2d 555, "[w]e must instead ask whether ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt,’ " Crowder, 41 Va. App. at 663, 588 S.E.2d 384 (quoting Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444 (2003) (en banc )). "This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. In addition, to the extent that Peters's assignment of error involves questions of law or statutory interpretation, we review such questions de novo. Young v. Commonwealth, 70 Va. App. 646, 652-53, 830 S.E.2d 68 (2019).

Code § 18.2-460(E)⁶ states:

Any person who intentionally prevents or attempts to prevent a law-enforcement officer from lawfully arresting him, with or without a warrant, is guilty of a Class 1 misdemeanor. For purposes of this subsection, intentionally preventing or attempting to prevent a lawful arrest means fleeing from a law-enforcement officer when (i) the officer applies physical force to the person, or (ii) the officer communicates to the person that he is under arrest and (a) the officer has the legal authority and the immediate physical ability to place the person under arrest, and (b) a reasonable person who receives such communication knows or should know that he is not free to leave.

The trial court found that the elements of the statute were satisfied "when the officer repeatedly kept saying give me your hands" and Peters "would not comply with the order to put his hands behind his back." However, that holding does not comport with this Court's decision in Joseph v. Commonwealth, 64 Va. App. 332, 768 S.E.2d 256 (2015). In Joseph, this Court reversed a conviction under the predecessor of Code § 18.2-460(E) – i.e., Code § 18.2-479.1 – where the appellant refused to comply with an officer's commands to place his hands behind his back, "repel[led] the officer's efforts to secure the handcuffs on him," and "backed up onto the officer," but "did not leave the scene and remained continuously in ... close proximity" to the officer. Id. at 335, 340, 768 S.E.2d 256. The Court noted that, although Code § 18.2-479.1 was entitled "Resisting arrest; fleeing from a law enforcement officer," nevertheless, "language contained in the title of a chapter or code section is ‘not controlling.’ " Joseph, 64 Va. App. at 340, 768 S.E.2d 256 (quoting Mason v. Commonwealth, 217 Va. 321, 323, 228 S.E.2d 683 (1976) ). Therefore, "the fact that the appellant was clearly ‘resisting’ the officer's efforts to lawfully arrest him" was not dispositive because the clear language of the statute requires flight. Id. The Court held that " ‘fleeing from a law-enforcement officer’ requires evidence of running away or physical movement beyond the scope of the officer's immediate span of control." Id. at 341, 768 S.E.2d 256. Therefore, in the case now before us, the trial court erred by holding simply that Peters's refusal to place his hands behind his back was...