Via v. Commonwealth

1

JASON EDWARD VIA v. COMMONWEALTH OF VIRGINIA

No. 1929-22-3

Court of Appeals of Virginia

April 30, 2024

FROM THE CIRCUIT COURT OF BOTETOURT COUNTY Joel R. Branscom, Judge

Stephen R. Wills (Stephen R. Wills, PLC, on brief), for appellant.

Stephen J. Sovinsky, Assistant Attorney General (Jason S Miyares, Attorney General, on brief), for appellee.

Present: Judges Huff, Malveaux and Chaney Argued at Lexington, Virginia

MEMORANDUM OPINION ^[*]

GLEN A. HUFF, JUDGE

Sitting without a jury, the Circuit Court for Botetourt County (the "trial court") convicted Jason Edward Via ("appellant") of felony eluding, in violation of Code § 46.2-817, and misdemeanor obstruction of justice, in violation of Code § 18.2-460. On appeal, appellant argues the evidence was insufficient to support his convictions for eluding and obstruction.^[1] He further contends that the trial court erred when it rejected his affirmative defense that he "was being pursued by a person other than a law enforcement officer." Finally, appellant assigns error to the trial court's interpretation of the elements required to prove felony eluding under Code § 46.2-817(B). For the following reasons, this Court affirms appellant's conviction for felony eluding and reverses his conviction for obstruction of justice.

BACKGROUND^[2]

On September 10, 2021, Botetourt County Sheriff's Deputy Ford arrived at a McDonald's parking lot in response to a report that the driver of a green Kia Soul-named Jason Via-had an outstanding warrant for his arrest. After seeing the green Kia in the restaurant's drive-thru lane, Ford parked his marked police cruiser behind the Kia, approximately "forty-five degrees off to the [passenger] side," before approaching appellant on foot. Ford, dressed in full uniform, knocked on the driver's side window and asked for the driver's identification. The driver-appellant-said he did not have his identification and gave Ford a false name.^[3]

Ford told appellant that he needed to speak with him and asked appellant to move his vehicle to a nearby parking spot so that Ford could investigate the possibility that the Kia was stolen.^[4] Appellant agreed, but after pulling out of the drive-thru line, he "straightened up the wheels and he took off" from the parking lot. He then turned onto Lee Highway and headed southbound. As Ford ran back to his cruiser, a woman in a red pickup truck informed him that the driver of the Kia was Jason Via.

Ford could not see the Kia when he began his pursuit, but he activated his emergency equipment as he turned out of the parking lot onto Lee Highway in the direction he saw appellant drive away. As he came around a curve in the road, approximately 30 seconds after the chase began, Ford saw the Kia ahead of him making a left turn onto Read Mountain Road.^[5] Ford accelerated to speeds in excess of 100 miles per hour in his attempt to catch up to appellant, but the Kia continued to outpace him.^[6] During that pursuit, Ford had to drive around at least two white SUVs traveling in his lane and navigate a silver vehicle pulling out onto the road from a nearby store.

Because Ford lost sight of the Kia again and could not tell where it was, his sergeant instructed him to "discontinue the pursuit." As Ford decelerated, he noticed "a bunch of sparks coming off the top of [a] pole" nearby. Believing the Kia had hit the pole during appellant's flight, Ford continued down the road and discovered the wrecked vehicle within a minute. Neither the driver nor anyone else was inside the crashed car. Ford reported the accident and remained on scene while other deputies and troopers searched the surrounding area for appellant. With the help of a K-9 officer, deputies found appellant covered up by cardboard boxes and hiding in a children's "tree house" on the back property of a nearby home.

At trial, appellant moved to strike the charges after the close of the Commonwealth's case, contending the evidence failed to establish both that he received a visual or audible signal to stop his vehicle and that he engaged in wanton behavior endangering any person. He argued that, because Ford did not see him between his departure from McDonald's and his turn onto Read Mountain Road, the Commonwealth could not demonstrate the nature of his driving behavior. The trial court denied his motion.

Appellant's wife-Whitney-then testified for the defense that she had planned to confront appellant on the day of the incident about issues relating to their marriage. She stated that her mother had accompanied her for support. After discovering where appellant was staying in town, Whitney's mother posted a Facebook message about appellant being wanted for arrest. The two women then followed appellant's vehicle to the McDonald's where they called the Botetourt Sherriff's Department and reported appellant's location and his fugitive status. Whitney further testified that, from where she was parked across the street, she saw a marked police car pull into the McDonald's lot while she was on the phone with dispatch. She then saw appellant suddenly pull out of the drive-thru line and speed away. She immediately began following appellant. When she was within one car's length behind the Kia, Whitney saw emergency lights flashing behind her and pulled over to the side of the road to let a marked police car pass by.^[7]

Appellant testified in his own defense and told the court that, on the evening of the chase, he had stopped at McDonald's to slip away from Whitney and her mother after he saw them in traffic. He denied knowledge of any outstanding warrants or charges and claimed that the Facebook post about him contained violent and threatening comments that made him fear for his safety.^[8]According to appellant, that was why he thought people were "trying to hunt [him] down" and why he was afraid of Ford's presence. Appellant thus claimed that he lied to Ford about his identity because he was afraid and because Ford's comment about the Kia being stolen "rubbed [him] the wrong way."^[9]

Appellant also maintained that he did not know Ford was a law enforcement officer until his subsequent arrest that day. To support that assertion, appellant claimed he could not see when Ford first approached his vehicle because the deputy stood in his blind spot. He further claimed that he drove away from the McDonald's without ever seeing Ford's police cruiser and that he never saw lights or heard sirens during the car chase. He also denied driving at excessive speeds and insisted that he only lost control of his vehicle because he was looking for Whitney in the rearview mirror.

After the close of all evidence, appellant renewed his motion to strike and argued that no evidence established that he saw or heard a signal to stop from Ford; rather, he only knew that Whitney was close behind him. The trial court denied the motion and noted that the fact appellant cannot be seen on Ford's dash cam video supported a finding that appellant drove very quickly on a "crowded road" while attempting to evade Ford.

In closing, appellant argued that he reasonably believed Ford was not a law enforcement officer and he only fled because Whitney and her mother were chasing him and he feared for his safety due to the violent Facebook posts. Appellant thus reasoned that he was entitled to the benefit of the affirmative defense contained in Code § 46.2-817(B).^[10] He further argued the evidence did not establish that he received Ford's signal, nor did it establish that he drove in a willful or wanton manner that endangered a person.

Before ruling, the trial court noted that "a lot of this . . . turn[ed] on [appellant's] credibility." Pointing to appellant's prior convictions for crimes involving moral turpitude, the trial court generally described appellant as "[s]omebody who['s] going to look [the trial court] in the face under oath and lie." It also pointedly found some of appellant's testimony "to be a lie" and concluded that appellant knew Ford was a law enforcement officer during the initial encounter at the McDonalds.^[11] Referring to the subsequent car chase, the trial court further found that it would be

impossible [for appellant] to get that far away from all the vehicles that were coming by when the officer was pulling out . . . without going at an outrageous speed. And if a hundred miles an hour by the officer can't catch up with you [un]til you make the turn, you've gone very fast.

Accordingly, the trial court did not find appellant's testimony credible, and instead described it as "a concocted story to fit the evidence."

After rejecting appellant's testimony, the trial court then based its final judgment on the video evidence and testimony of the other witnesses. It determined that appellant intentionally defied Ford's multiple directives to stop and drove at a high rate of speed along a busy road while attempting to evade Ford, ultimately causing the wreck of appellant's own vehicle.^[12] Concluding that appellant's "activity of running from everybody" endangered both himself and the other drivers on the road, the trial court found appellant guilty of felony eluding under Code § 46.2-817(B). Without elaborating, it further found the evidence sufficient to support a conviction for the obstruction of justice charge under Code § 18.2-460.

The trial court then sentenced appellant to 5 years' incarceration for felony eluding and 12 months' incarceration for obstruction of justice, suspending each sentence conditioned upon successful completion of the Community Corrections Alternative Program ("CCAP"). This appeal followed.

ANALYSIS

I. Sufficiency of the Evidence for Felony Eluding

"When reviewing the sufficiency of the evidence, '[t]he judgment of the trial court is...