Mark Anthony Johnson v. Commonwealth ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Senior Judge Overton
Argued at Richmond, Virginia
MARK ANTHONY JOHNSON
MEMORANDUM OPINION* BY
v. Record No. 2870-02-2 JUDGE RUDOLPH BUMGARDNER, III
OCTOBER 14, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF COLONIAL HEIGHTS
T. J. Hauler, Judge
Denis C. Englisby (Christian M. Vaughn; Englisby, Englisby &
Vaughn, on brief), for appellant.
Kathleen B. Martin, Assistant Attorney General (Jerry W. Kilgore,
Attorney General, on brief), for appellee.
Mark Anthony Johnson appeals his conviction of felony escape, Code § 18.2-479.1 He
maintains the evidence did not prove he had been charged with a felony when he escaped
custody. Finding the evidence was insufficient, we reverse and remand.
We view the evidence and the reasonable inferences fairly deducible therefrom in the
light most favorable to the Commonwealth. Dowden v. Commonwealth, 260 Va. 459, 467, 536
S.E.2d 437, 441 (2000). Officer Stacey Arehart arrested the defendant for petit larceny. The
defendant gave false identification to the officer and later to the magistrate. After appearing
before a magistrate, the officer told the defendant she planned to compare the fingerprints just
* Pursuant to Code § 17.1-413, this opinion is not designated for publication.
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"If any person . . . lawfully in the custody of . . . any law-enforcement officer on a
charge . . . of a felony escapes . . . he shall be guilty of a Class 6 felony." Code § 18.2-479(B).
taken from him with those already on record for the identity the defendant had given. If the
fingerprints did not match, the officer would place felony charges. The defendant then admitted
he had given false information and supplied his true identification. Using the correct data, the
officer began a criminal history check to see whether the defendant had prior convictions. The
defendant escaped before the officer completed the criminal records review or the paperwork
necessary to obtain felony warrants. The sole issue is whether the defendant had been charged
with a felony before he walked out of the holding cell.
At common law, the person to be arrested is entitled to know of "(1) the intention to take
him into the custody of the law, (2) the authority for the arrest, and (3) the reason therefor."
Rollin M. Perkins, The Law of Arrest, 25 Iowa L. Rev. 201, 249 (1940). See also W. Page
Keeton, Prosser & Keeton on Torts, Arrest Without A Warrant § 26, 154 (5th ed. 1984) (arrestee
"must be informed of the charges against him"); Clarence Alexander, 1 The Law of Arrest in
Criminal and Other Proceedings § 93, 479 (1949) (officer must state his "purpose to arrest, and
the purpose of the arrest"). An officer’s "bare assertion that authority to arrest [for a felony]
exists" does not amount to an arrest unless it is acted upon. Prosser & Keeton on Torts, False
Imprisonment § 11, at 47.
The defendant was in custody on a misdemeanor charge. The officer suspected the
defendant had given a false identity. She told the defendant, "if" his fingerprints did not match,
she "would" charge him with felonies. The officer employed words of condition and futurity.
The officer did not verbally place felony charges for perjury and falsifying arrest records by that
statement.
When the officer placed the defendant in the holding cell, she did not yet know the
defendant had prior petit larceny convictions, which would permit her to elevate the current
charge to a felony. The officer had not completed the criminal history check, and she could not
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have placed a felony charge of petit larceny third or subsequent offense. The defendant walked
off before the officer had completed the paperwork necessary to obtain felony warrants for any
of the potential felony charges. The magistrate had not issued any felony warrants, and the
officer could not have executed any formal written charge for a felony.
The defendant was in custody on the original charge of petit larceny. The officer did not
verbally charge him with any felony and did not serve him with any felony warrant. Before any
of that could be done, the defendant escaped. The defendant was never in custody on a felony
charge and can only be guilty of a misdemeanor. Accordingly, we reverse his conviction of
felony escape and remand for sentencing.
Reversed and remanded.
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