Brian Taylor, etc. v. Commonwealth ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Senior Judge Hodges
Argued at Norfolk, Virginia
BRIAN TAYLOR, S/K/A
BRIAN KEITH TAYLOR
MEMORANDUM OPINION *
v. Record No. 1920-96-1 BY JUDGE WILLIAM H. HODGES
JUNE 17, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Robert B. Cromwell, Jr., Judge
Diane Fener (Office of the Public Defender,
on brief), for appellant.
Leah A. Darron, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
In a bench trial, the trial judge convicted Brian Taylor
(appellant) of violating Code § 53.1-203(2). 1 Appellant argues
on appeal that the evidence was insufficient to support his
conviction. For the reasons that follow, we affirm the
conviction.
"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." Maynard v. Commonwealth,
*
Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
1
Code § 53.1-203(2) makes it unlawful for "a prisoner in a
state, local or community correctional facility or in the custody
of an employee thereof to . . . [w]illfully break, cut or damage
any building, furniture, fixture or fastening of such facility or
any part thereof for the purpose of escaping, aiding any other
prisoner to escape therefrom or rendering such facility less
secure as a place of confinement . . . ."
11 Va. App. 437, 439, 399 S.E.2d 635, 637 (1990) (en banc).
The sole witness at trial was Thomas Wirges, who was
employed as a deputy at the City of Virginia Beach Sheriff's
Department. Wirges testified that on December 6, 1995, he was
working in "booking," and that appellant was an "inmate."
Appellant was locked in Camera Cell 1-F1 in booking and secured
in a Pro-Straint chair.
The Pro-Straint chair is a restraining device used for
individuals who present such a danger to themselves or to others
that they cannot be maintained in a regular cell. The
Pro-Straint chair consists of a large chair with a straight back
and belts to strap down the inmate's legs, thighs, and chest.
Long nylon straps with D-ring closures are used to secure the
hands and feet. Without the straps to restrain the hands and
feet, the Pro-Straint chair is rendered useless. While in the
Pro-Straint chair, an inmate is monitored by camera, and is
checked periodically by medical personnel.
On the monitor, Wirges observed appellant squirming out of
the restraints in the Pro-Straint chair. Wirges grabbed his key
and went to the cell. As Wirges opened the cell door, he heard
the commode flush. Appellant, standing near the commode, said he
"flushed the . . . restraints" so that they would not be put on
him again. Wirges discovered that the nylon straps were missing
from the Pro-Straint chair, and he did not recover them.
To sustain appellant's conviction, the Commonwealth was
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required to prove that at the time of the incident appellant was
"a prisoner in a state, local or community correctional facility
or in the custody of an employee thereof . . . ." Code
§ 53.1-203. The phrase "prisoner in a . . . correctional
facility" refers to the status of that person, and "is not
dependent upon actual physical presence in such facility or
otherwise restricted by a prisoner's location." Simmons v.
Commonwealth, 16 Va. App. 621, 623, 431 S.E.2d 335, 336 (1993).
Appellant was an "inmate" when Wirges came on duty in
"booking" as a deputy with the Virginia Beach Sheriff's
Department on the night of December 6, 1995. Appellant was being
restrained in the Pro-Straint chair and Wirges was responsible
for monitoring him. These facts were sufficient to prove beyond
a reasonable doubt that appellant was a "prisoner in a . . .
correctional facility." 2
Appellant contends that there was no proof that flushing the
straps caused them damage. This argument ignores the fact that
the Pro-Straint chair itself was damaged by the permanent removal
of the nylon straps. In fact, the removal of the straps rendered
the chair useless for its intended purpose of restraining
particularly dangerous inmates. The chair was located in the
2
In light of this conclusion, we need not consider
appellant's argument regarding the failure of the indictment to
charge that appellant was in the custody of a correctional
facility employee. Moreover, this argument was not raised at
trial and is barred by Rule 5A:18. See Jacques v. Commonwealth,
12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991).
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"booking" section of the Virginia Beach Sheriff's Department.
Thus, the evidence sufficiently proved that appellant damaged
furniture of a correctional facility.
Finally, the Commonwealth was required to show that by
flushing the straps appellant intended to render the facility
less secure as a place of confinement. "Intent is a subjective
state of mind, and proof of it is ofttimes difficult.
Frequently, it must be proved by circumstantial evidence alone.
One may generally infer, however, that a person intends his
deliberate acts." Rodriguez v. Commonwealth, 18 Va. App. 277,
282, 443 S.E.2d 419, 423 (1994) (citations omitted) (en banc),
aff'd, 249 Va. 203, 454 S.E.2d 725 (1995).
Appellant was placed in the Pro-Straint chair because he had
been determined to be a danger to himself or others. By removing
the straps securing his hands and feet, appellant was able to get
up from the chair and move about the cell. In this state,
appellant was considerably less secure than while properly
strapped into the Pro-Straint chair. In fact, appellant told
Wirges that the reason he had flushed the straps was so they
could not be placed on him again. These facts were sufficient to
establish beyond a reasonable doubt that appellant flushed the
straps with the purpose of making the facility less secure as a
place of confinement.
For the foregoing reasons, we affirm appellant's conviction.
Affirmed.
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