Maurice Kevin Williams v. Commonwealth of Virginia ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Annunziata and Bumgardner
Argued at Norfolk, Virginia
MAURICE KEVIN WILLIAMS
OPINION BY
v. Record No. 0970-98-1 JUDGE ROSEMARIE ANNUNZIATA
MAY 18, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Robert W. Curran, Judge
(Kevin M. Diamonstein, on brief), for
appellant. Appellant submitting on brief.
Linwood T. Wells, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General,
on brief), for appellee.
Maurice K. Williams (“appellant”) appeals his bench trial
conviction of misdemeanor escape in violation of Code
§ 18.2-479, claiming the trial court erred in denying his motion
to strike the Commonwealth’s evidence. Specifically, he
contends Code § 18.2-479 requires the Commonwealth to prove the
class of the offense for which he was in custody at the time of
the escape. We disagree and affirm.
I.
BACKGROUND
Appellant was an inmate at the Newport News City Farm at
the time of the events material to this appeal. On October 14,
1997, Lowell Gray, a correctional officer at the City Farm, was
supervising a work detail in the area of Thorncliff Drive in the
City of Newport News. As a member of the detail, appellant was
in Gray’s custody. At some point, Gray noticed that appellant
was missing from the detail without permission to leave. Later
that day, Gray located appellant in the Newport News lock-up
after his recapture by the police.
At trial, appellant presented no evidence but moved to
strike the Commonwealth’s evidence, contending the Commonwealth
failed to prove an essential element of the offense, to wit,
whether he was incarcerated “on a charge or conviction of” a
felony or a misdemeanor in accordance with Code § 18.2-479. The
trial court overruled appellant’s motion and found appellant
guilty of misdemeanor escape under Code § 18.2-479(A). The
court reasoned that proof of custody at the time of the escape
was sufficient to sustain a conviction under this code section
and that evidence of the nature of the accused’s underlying
offense was relevant only to prosecutions in which the
Commonwealth sought to have the court impose enhanced punishment
pursuant to Code § 18.2-479(B).
II.
LEGAL PRINCIPLES
Code § 18.2-479 provides:
A. If any person lawfully confined in jail
or lawfully in the custody of any court or
officer thereof or of any law-enforcement
officer on a charge or conviction of a
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misdemeanor escapes, otherwise than by force
or violence . . . , he shall be guilty of a
Class 1 misdemeanor.
B. If any person lawfully confined in jail
or lawfully in the custody of any court or
officer thereof or of any law-enforcement
officer on a charge or conviction of a
felony escapes, otherwise than by force or
violence . . . , he shall be guilty of a
Class 6 felony.
Appellant asserts that, because Code § 18.2-479
differentiates between individuals who escape while in custody
on a misdemeanor conviction and those who escape while in
custody on a felony conviction, proof of the nature of the
accused’s underlying offense is an essential element of the
offense and must be proved beyond a reasonable doubt. See
Ganzie v. Commonwealth, 24 Va. App. 422, 428, 482 S.E.2d 863,
866 (1997); Bruce v. Commonwealth, 9 Va. App. 298, 301, 387
S.E.2d 279, 280 (1990). We decline to adopt appellant’s
construction of the statute.
The issue of whether the Commonwealth must prove, as a
necessary element of a conviction under Code § 18.2-479, the
class of crime for which an accused has been placed in custody
is one of first impression. As originally enacted, the offense
underlying the accused’s custody was irrelevant to the
prosecution of an escape charge, and the crime of escape without
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force or violence was punishable only as a misdemeanor. 1 The
present version of Code § 18.2-479 was enacted in 1985. The
statute as amended provided that the range of punishment imposed
would be determined based on whether the accused’s underlying
offense was a felony or a misdemeanor. Code § 18.2-479 has
otherwise remained essentially unchanged through a series of
amendatory actions. 2
In its present form, the statute establishes two grades of
the offense where, but for the penalty to be imposed, the
elements to be proved are identical. Where the legislature has
established two grades of an offense, differentiating them only
1
For example, until its most recent amendment in 1985, Code
§ 18.2-479 provided:
If any person lawfully confined in jail or
lawfully in the custody of any court or
officer thereof or of any law-enforcement
officer on a charge or conviction of a
criminal offense escape, otherwise than by
force or violence . . . , he shall be guilty
of a Class 2 misdemeanor.
Code § 18.2-479 (1975).
2
For earlier versions of the statute at issue, see Code
§ 18-253 (1950) (“If any person lawfully confined in jail on a
charge or conviction of a criminal offense escape, otherwise
than by force or violence . . . , he shall be confined in jail
not less than thirty days nor more than six months.”), and Code
§ 18.1-290 (1960) (“If any person lawfully confined in jail or
lawfully in the custody of any court or officer thereof or of
any law enforcement officer on a charge or conviction of a
criminal offense escape, otherwise than by force or violence
. . . , he shall be confined in jail not exceeding six months,
or be fined not exceeding five hundred dollars, or both.”).
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on the basis of penalty, both this Court and the Supreme Court
have held that proof of the element relevant to the enhanced
penalty is not required except in those cases in which the
enhanced penalty is imposed. In Knight v. Commonwealth, 225 Va.
85, 300 S.E.2d 600 (1983), for example, the Virginia Supreme
Court noted that, although “[t]he value of the goods specified
in the grand larceny statute is an essential element of the
crime,” “‘proof that an article has some value is sufficient to
warrant a conviction of petit larceny, but where the value of
the thing stolen determines the grade of the offense, the value
must be alleged and the Commonwealth must prove the value to be
the statutory amount.’” Id. at 88, 300 S.E.2d at 601 (quoting
Wright v. Commonwealth, 196 Va. 132, 139, 82 S.E.2d 603, 607
(1954)). See also Pittman v. Commonwealth, 17 Va. App. 33,
34-35, 434 S.E.2d 694, 695 (1993) (stating that under Code
§ 18.2-104(b), which provided for enhanced punishment for any
third or subsequent conviction of concealing merchandise, “a
crime that on the first or second commission is a misdemeanor,
becomes a felony upon proof of the additional element of its
commission being a third or subsequent such occurrence”).
The 1985 amendment of Code § 18.2-479 changed only the
grade of the offense and the attendant penalty. The offense
underlying the custodial status of the accused has historically
not been relevant to determining that a violation of the
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substantive prohibition of the statute has occurred, viz., that
the accused has escaped from the custody of a law enforcement
officer. In light of the history of the statute and the
reasoning applied in Knight, which we adopt here, we hold that
proof of the underlying offense for which an accused is in
custody is irrelevant to the determination of guilt, except in
those cases in which the Commonwealth seeks enhanced punishment
under Code § 18.2-479(B).
Because an accused’s underlying offense is not an essential
element of Code § 18.2-479 for the purpose of establishing
guilt, and because appellant does not contest the sufficiency of
the evidence as to the remaining elements of Code § 18.2-479, we
find the evidence sufficient to sustain appellant’s conviction
of misdemeanor escape under Code § 18.2-479(A) and affirm his
conviction.
Affirmed.
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