Sean James Horan v. Commonwealth of Virginia ( 2022 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Huff, O’Brien and White
UNPUBLISHED
Argued by videoconference
SEAN JAMES HORAN
MEMORANDUM OPINION* BY
v. Record No. 1186-21-1 JUDGE GLEN A. HUFF
DECEMBER 6, 2022
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
A. Bonwill Shockley, Judge
Kristin Paulding (7 Cities Law, on brief), for appellant.
Victoria Johnson, Assistant Attorney General (Jason S. Miyares,
Attorney General, on brief), for appellee.
The trial court convicted appellant of assault and battery of a law enforcement officer, in
violation of Code § 18.2-57(C), attempting to disarm a law enforcement officer, in violation of
Code §§ 18.2-57.02 and 18.2-26, trespassing, in violation of Code § 18.2-119, disorderly conduct,
in violation of Code § 18.2-415, attempting to prevent his arrest, in violation of Code § 18.2-460(E),
and public intoxication, in violation of Virginia Beach local ordinance 23-22.1 He challenges the
sufficiency of the evidence supporting his convictions.2 Appellant also contends that the trial court
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
The trial court acquitted appellant of assault, failure to provide identification to law
enforcement, and obstruction of justice.
2
Although appellant originally included a sufficiency of the evidence challenge to his
public intoxication conviction, he has withdrawn that assignment of error in his opening brief.
Accordingly, this Court need not address that assignment of error. See, e.g., Marsh v.
Commonwealth, No. 1568-13-2, 2015 WL 1013381 (Va. Ct. App. Mar. 10, 2015) (deciding that
we need not address withdrawn arguments); Mayo v. Commonwealth, No. 2385-11-4, 2013
WL 599778 (Va. Ct. App. Feb. 19, 2013) (same).
erred by convicting him of disorderly conduct because the trial court based its verdict on “the same
conduct used to convict [him] for public intoxication and attempting to prevent a law enforcement
officer from arresting [him].” For the reasons below, this Court reverses appellant’s conviction for
attempting to prevent his arrest and affirms the remainder of his challenged convictions.
BACKGROUND
“In accordance with familiar principles of appellate review, the facts will be stated in the
light most favorable to the Commonwealth, the prevailing party at trial.” Poole v.
Commonwealth, 73 Va. App. 357, 360 (2021) (quoting Gerald v. Commonwealth, 295 Va. 469,
472 (2018)). On the afternoon of May 14, 2019, appellant stopped at a Virginia Beach Buffalo
Wild Wings restaurant after leaving his job at a local brewery. Appellant ordered a meal and a
beer, and Leandra Nobles, the bartender, was appellant’s server. According to appellant, Nobles
was “dismissive” when he asked her to change the channels on the bar television, and “a
conflict” arose between them.3 Appellant conceded that he was intoxicated when he arrived at
the restaurant.
The restaurant manager, Michael Fortuna, testified that Nobles entered his office and told
him that appellant was asleep at the bar and had refused her request to leave. Fortuna left his
office, walked behind the bar, and asked appellant to leave. When Fortuna asked appellant for
his credit card to close out his check, appellant retorted, “Well, do you even know how to use a
credit card?” Fortuna swiped appellant’s credit card and asked him again to leave. Appellant
replied, “[O]kay. I’m not leaving.” But when Fortuna walked past appellant toward his office,
appellant implored, “[P]lease, please don’t call the cops. I’ll go ahead and leave.” Fortuna told
appellant, “[W]ell, sir, if you don’t leave, I have to call the cops.”
3
Nobles testified at trial. The trial court specifically found that her testimony was not
credible.
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When appellant remained in the restaurant, Fortuna entered his office and called the
nonemergency number for police dispatch. As Fortuna spoke with dispatch, Nobles appeared in
Fortuna’s office with appellant’s wallet. Fortuna returned to the restaurant where he discovered
some of the guests attempting to “keep [appellant] away” from Nobles, and “an altercation”
between appellant and the other diners. Appellant was walking around the bar “antagonizing”
Nobles by “saying stuff” to her. Fortuna attempted to “block” appellant between two tables to
keep him away from the other patrons and Nobles. When appellant approached Nobles, three of
the restaurant guests pushed him back. Fortuna called 911 and reported that “the situation had
gotten physical.” The dispatcher assured Fortuna that officers were en route. As Fortuna spoke
with the dispatcher, three patrons “carried” appellant out of the restaurant.
One of those patrons, Dylan Edwards, testified that he intervened because appellant was
“[b]eing loud[] running around the restaurant” and swearing at the bartender. Edwards stated
that appellant “chucked” his sunglasses at the bartender’s face as he stood two feet away from
her. Edwards pushed appellant toward the end of the bar and said, “[L]et’s go, let’s go.”
Edwards was unsuccessful in escorting appellant to the exit, and appellant began to swear at the
bartender, calling her the “N-word” and “a bitch.” Edwards asked appellant to stop, but another
patron pushed appellant to the ground. When appellant stood and attempted to “get past”
Edwards, he stated, “I’m getting my wallet back from that bitch.” Edwards grabbed him by the
neck and dragged him out of the restaurant. Once they reached the sidewalk outside the
restaurant entrance, Edwards blocked appellant so that he could not re-enter, and “a little scuffle”
ensued. When Officers Simmons and Webb arrived, Edwards assisted them in handcuffing
appellant. Edwards also assisted the officers as they escorted appellant to a patrol car. When
they reached the car, appellant “kicked off of [it] and everybody fell in the street,” narrowly
avoiding a passing vehicle.
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Simmons testified that he was the first officer to arrive at the restaurant in response to a
report of “[a] disorderly subject.” Footage from Simmon’s body camera was admitted at trial.
As Simmons approached the sidewalk outside the restaurant entrance, three men were standing
around appellant. Webb arrived almost immediately after Simmons. Simmons noticed that
appellant smelled of alcohol and his speech was “very slurred.”
As Simmons drew closer to appellant, Simmons asked, “What’s the deal, man?” In the
footage, someone in the gathering referred to a “camera,” at which point appellant turned his
back to Simmons. Simmons, who was standing immediately behind appellant, reached out and
grabbed appellant by his backpack, stating, “No, no, you go over here.” Simmons kept his hands
on appellant as he turned appellant around and moved him toward the railing along the sidewalk.
Without announcing that appellant was under arrest, Simmons and Webb grabbed appellant by
the arms and attempted to handcuff him. At trial, Simmons and Webb testified that they were
handcuffing appellant for “[p]ublic intoxication.”
Appellant struggled with the officers, “jerking his body around, pulling his arms to the
front” and moving forward “to get away” from the officers, but the officers kept their hands on
him. After struggling with appellant, the officers “decided to take him to the ground.” As they
did, appellant’s face struck a windowsill. The officers handcuffed appellant, assisted him to his
feet, and with their hands on appellant, they escorted him to a patrol car across the street. Both
officers placed their hands on appellant because he was “very unsteady on his feet” and “kind of
floppy.” Simmons held appellant against the patrol car while Webb searched him.
Simmons felt a “tug” on his service firearm and saw appellant’s left hand pulling on the
butt of his gun. Appellant was unable to remove the gun because it was secured in the holster.
Simmons twisted his body away from appellant, alerted Webb, and the two officers placed
appellant on the ground again. Webb testified that she saw appellant’s hand “[p]ulling up” on
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the grip of Simmons’s weapon. Webb and Simmons kept appellant on the ground, and when
backup assistance arrived, they attempted to place appellant in the back of the patrol car.
Appellant “lock[ed] his legs” and continued to resist, prompting the backup officer to pull him
into the car feet first.
Appellant’s head was bleeding, but he refused medical assistance. Webb transported him
to jail, and upon their arrival, appellant refused to exit the patrol car. With assistance from
deputies, Webb escorted appellant into the jail and placed him on a bench. As Webb bent down
to handcuff appellant to the bench, he repeatedly “g[ot] in [her] face” and called her “a dog
killing bitch.” When Webb placed her hand on appellant’s shoulder to push him away from her
face, he licked her forearm, depositing blood on it from his face. Webb testified that appellant
was laughing and swearing at her during the incident.
Appellant testified on his own behalf. He stated that he went to the restaurant after work
to watch sports on television and to eat dinner and that Nobles became “very annoyed” when he
asked her to change the television channel. After that, appellant maintained that her service
became “worse and worse.” When Nobles asked him to “cash out” and leave before he had
finished his meal, he asked for her manager. Appellant stated that he paid the manager at the bar
and, even though the manager and Nobles asked him to leave, he remained there because he
wanted to discuss the poor service he had received. After the manager threatened to call the
police and returned to his office, Nobles took his wallet. Appellant agreed that “a conflict” arose
between him and Nobles after that and that none of the other patrons believed that she had taken
his wallet. Appellant denied calling Nobles a “bitch” or “the N-word,” but he agreed that a
customer “grabbed [him] around the neck” and dragged him out of the restaurant. He stated that,
when the police arrived, they “grabbed” him immediately and were “extremely hostile.”
Appellant admitted that he “struggled” with the officers and called Simmons a “f-ing midget”
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and Webb a “dog killing bitch”; however, he denied attempting to disarm Simmons or licking
Webb’s arm.
At the conclusion of the evidence, the trial court convicted appellant of assault and
battery of a law enforcement officer, attempting to disarm a law enforcement officer, attempting
to prevent his arrest, disorderly conduct, trespass, and public intoxication. The trial court
acquitted him of assault, failure to provide identification to law enforcement, and obstruction of
justice. This appeal followed.
ANALYSIS
“When reviewing the sufficiency of the evidence, ‘[t]he judgment of the trial court is
presumed correct and will not be disturbed unless it is plainly wrong or without evidence to
support it.’” McGowan v. Commonwealth, 72 Va. App. 513, 521 (2020) (alteration in original)
(quoting Smith v. Commonwealth, 296 Va. 450, 460 (2018)). This Court must affirm if “any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Vasquez v. Commonwealth, 291 Va. 232, 248 (2016) (quoting Williams v.
Commonwealth, 278 Va. 190, 193 (2009)). “If there is evidentiary support for the conviction,
‘the reviewing court is not permitted to substitute its own judgment, even if its opinion might
differ from the conclusions reached by the finder of fact at the trial.’” McGowan, 72 Va. App. at
521 (quoting Chavez v. Commonwealth, 69 Va. App. 149, 161 (2018)).
1. Assault and Battery of a Law Enforcement Officer
Appellant contends that the evidence failed to prove that he committed a “battery” on
Webb because he did not have the requisite intent. Appellant stresses that he had suffered head
trauma before the incident with Webb and that he “felt out of it” and “did not comprehend what
was going on,” and therefore could not have formed the specific intent to harm the officer.
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To convict a person of assault and battery, the Commonwealth must prove the person’s
“intention to do bodily harm—either an actual intention or an intention imputed by law.” Adams
v. Commonwealth, 33 Va. App. 463, 468 (2000) (quoting Davis v. Commonwealth, 150 Va. 611,
617 (1928)). Where a person touches another “in a rude, insolent, or angry manner,” a factfinder
may “impute” the “unlawful intent.” Kelley v. Commonwealth, 69 Va. App. 617, 628 (2019)
(first quoting Adams, 33 Va. App. at 469; and then quoting Parish v. Commonwealth, 56
Va. App. 324, 331 (2010)).
Viewed as a whole, the circumstances were sufficient to support a reasonable conclusion
that appellant willfully touched Webb in a “rude” or “insolent” manner. Id.; see also Gilbert v.
Commonwealth, 45 Va. App. 67, 71-72 (2005) (evidence sufficient to prove requisite intent for
assault and battery when defendant was noncompliant with police and cursed, threatened, and
spat at police officer). Appellant was combative and uncooperative with Webb and Simmons
when they took him into custody and remained so after Webb drove him to jail. By his own
admission, appellant was intoxicated and swearing at Webb when he arrived at the jail. Webb
testified that appellant repeatedly “g[ot] in [her] face” as she attempted to handcuff him to a
bench and, when she pushed him away from her face, he licked and bloodied her forearm. And
Webb testified that appellant’s touching was unwanted. Although appellant denied that he licked
Webb, the trial court was permitted to reject his self-serving testimony and conclude that he was
lying to conceal his guilt. Flanagan v. Commonwealth, 58 Va. App. 681, 702 (2011). A
factfinder could therefore properly impute unlawful intent based on his actions. Accordingly, the
evidence was sufficient to support appellant’s conviction for the assault and battery of a law
enforcement officer.
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2. Attempt to Disarm a Law Enforcement Officer
Appellant next argues that he did not “knowingly” attempt to remove or deprive
Simmons of the use of his firearm, as required by Code §§ 18.2-57.02 and 18.2-26. Instead,
citing his testimony at trial, he contends that he accidentally touched the gun when “he was
feeling around for balance” because he was “unsteady on his feet,” “dazed,” and “confused” after
he hit his head in front of Buffalo Wild Wings.
“An attempt to commit a crime is composed of two elements: (1) [t]he intent to commit
it; and (2) a direct, ineffectual act done towards its commission.” Pulley v. Commonwealth, 74
Va. App. 104, 124 (2021) (alteration in original) (quoting Fletcher v. Commonwealth, 72
Va. App. 493, 506 (2020)). “The intent required to be proven in an attempted crime is the
specific intent in the person’s mind to commit the particular crime for which the attempt is
charged.” Id. (quoting Fletcher, 72 Va. App. at 506). “Intent is a factual determination, and a
trial court’s decision on the question of intent is accorded great deference on appeal and will not
be reversed unless clearly erroneous.” Towler v. Commonwealth, 59 Va. App. 284, 297 (2011).
“Circumstantial evidence is as acceptable to prove guilt as direct evidence, and in some cases,
such as proof of intent or knowledge, it is practically the only method of proof.” Abdo v.
Commonwealth, 64 Va. App. 468, 475-76 (2015) (quoting Parks v. Commonwealth, 221 Va.
492, 498 (1980)). Moreover, “[t]he finder of fact may infer that a ‘person intends the natural and
probable consequences of his or her acts.’” Johnson v. Commonwealth, 53 Va. App. 79, 100
(2008) (quoting Velasquez v. Commonwealth, 276 Va. 326, 330 (2008)).
Here, appellant repeatedly resisted the officers’ attempts to handcuff him and place him
in the police cruiser. He struggled with the officers, swore at them, and had to be forced to the
ground outside the restaurant as well as outside the patrol car. Simmons and Webb testified that
appellant was “tugging” and “pulling” at the grip of Simmons’s service weapon as the officers
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attempted to place him in the patrol car. That testimony was sufficient to prove appellant
knowingly and intentionally attempted to remove Simmons’s weapon.
3. Trespass
Appellant asserts that the evidence was insufficient to support his trespass conviction
under Code § 18.2-119 because he “had no intent to trespass due to his good faith belief that he
could be on the property to retrieve his wallet.” He maintains that, “[a]lthough not listed in the
statute, criminal intent is an element of trespassing.” Citing Reed v. Commonwealth, 6 Va. App.
65 (1988), appellant contends that a defendant does not trespass when he is “on the premises or
land under a bona fide claim of right.”
Code § 18.2-119 states in pertinent part:
If any person without authority of law goes upon or remains upon
the . . . buildings or premises of another . . . after having been
forbidden to do so, either orally or in writing, by the owner, lessee,
custodian, or the agent of any such person, . . . he shall be guilty of
a Class 1 misdemeanor.
Although not expressly stated, Code § 18.2-119 “has been uniformly construed to require a
willful trespass.” Reed, 6 Va. App. at 70 (emphasis added); see also Commonwealth v. Hicks,
267 Va. 573, 583 (2004) (“Code § 18.2-119 . . . has an intent requirement [and] the
Commonwealth [i]s required to prove that [the defendant] committed an act of intentional
trespass.”). Thus, a person is not guilty of criminal trespass when he shows he remained on the
property “under a bona fide claim of right”—that is, “a sincere, although perhaps mistaken, good
faith belief that [he] has some legal right to be on the property.” Reed, 6 Va. App. at 71.
But a “claim of right is an affirmative defense.” Id. at 70. A defendant relying on an
affirmative defense has the burden “to present evidence establishing such defense to the
satisfaction of the fact finder.” Riley v. Commonwealth, 277 Va. 467, 479 (2009). Here,
appellant cites only his belief that he was entitled to remain in the restaurant after Nobles
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removed his wallet. Appellant’s argument, however, ignores the undisputed evidence that he
remained at the restaurant before the dispute with Nobles over his wallet. The record
demonstrates that appellant refused to leave after both Nobles and Fortuna directed him to leave
and he had paid his bill, even after Fortuna announced that he was calling the police. Appellant
cites no evidence that either Fortuna or Nobles had agreed for him to remain on the premises.
Based on appellant’s “conflict” with Nobles, the trial court could reasonably find that appellant
remained in the restaurant because he was upset with Nobles, not because he believed he had a
bona fide right to be there. The evidence thus supports his conviction for criminal trespass.
4. Disorderly Conduct—Code § 18.2-415
Appellant also claims the trial court erred by convicting him of disorderly conduct in
violation of Code § 18.2-415 because “the conduct that the court considered disorderly was the
same conduct used to convict [him] for public intoxication and attempting to prevent a law
enforcement officer from arresting [him].” He cites Battle v. Commonwealth, 50 Va. App. 135(2007), to argue that the “other crimes” provision in Code § 18.2-415(B) prohibited the
Commonwealth from prosecuting him for disorderly conduct and for public intoxication and
attempted flight from a law enforcement officer in violation of Code § 18.2-490(E).
Code § 18.2-415 states in pertinent part:
A. A person is guilty of disorderly conduct if, with the intent to
cause public inconvenience, annoyance, or alarm, or recklessly
creating a risk thereof, he:
1. . . . while in a public place engages in conduct having a direct
tendency to cause acts of violence by the person or persons at
whom, individually, such conduct is directed[.]
....
B. The conduct prohibited under subsection A shall not be deemed
to include the utterance or display of any words or to include
conduct otherwise made punishable under this title.
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In Battle, this Court reversed the defendant’s conviction of disorderly conduct “because
the statute specifically excludes ‘conduct otherwise made punishable’ by other Title 18.2
criminal statutes.” 50 Va. App. at 137 (quoting Code § 18.2-415). The Court clarified, however,
that the proviso “does not say a disorderly conduct charge must be dismissed anytime a
defendant could be prosecuted under both the disorderly conduct statute and another provision of
Title 18.2.” Id. at 140. “[T]he conduct exempted from the reach of Code § 18.2-415 includes
only Title 18.2 crimes for which the defendant could be found guilty beyond a reasonable
doubt.” Id. Further, the “other-crimes” proviso precludes a conviction under Code § 18.2-415
only when the “convictable disorderly conduct [i]s comprised solely of conduct ‘otherwise made
punishable under this title.’” Id. at 141 (quoting Code § 18.2-415). Thus, the exception applies
only if a factfinder could find the defendant guilty beyond a reasonable doubt of another crime
based “solely” on the conduct supporting his disorderly conduct conviction. Id.
Appellant’s conviction does not fall within that exception. His argument first assumes
that the evidence was sufficient to support his convictions for those two offenses. But, as
explained later, this Court concludes the evidence did not support convicting appellant of
attempting to prevent his arrest. Because “the conduct exempted from . . . Code § 18.2-415
includes only Title 18.2 crimes for which the defendant could be found guilty beyond a
reasonable doubt,” the conduct related to the charge of attempted flight is irrelevant to this
analysis. Id. at 140 (emphasis added).
Second, his argument also assumes that his disorderly conduct conviction was based
“solely” on the conduct also supporting convictions for public intoxication and attempted flight
from a law enforcement officer. Yet the “convictable disorderly conduct” supporting appellant’s
conviction under Code § 18.2-415 is not “comprised solely of conduct ‘otherwise made
punishable’” under the public intoxication ordinance or Code § 18.2-460(E). Id. at 141. To
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prove disorderly conduct, the Commonwealth was not required to prove that appellant was
intoxicated or that he attempted to flee from a law enforcement officer. Instead, the
Commonwealth was required to prove that appellant intended “to cause public inconvenience,
annoyance, or alarm, or recklessly create[ed] a risk thereof,” and “while in a public place
engage[d] in conduct having a direct tendency to cause acts of violence by the person or persons
at whom, individually, such conduct is directed.” Code § 18.2-415. This conduct is not the same
conduct proscribed by an ordinance prohibiting public intoxication or a statute prohibiting flight
from a law enforcement officer.4 Accordingly, as the conduct supporting appellant’s disorderly
conduct conviction was not based “solely” on the conduct supporting his public intoxication and
attempted flight from a law enforcement officer convictions, appellant’s argument that the
exemption in Code § 18.2-415(B) prohibited his disorderly conduct conviction is unpersuasive.5
5. Attempt to Prevent Arrest by Flight
Appellant next asserts that the evidence failed to prove he attempted to prevent a law
enforcement officer from arresting him in violation of Code § 18.2-460(E) because it did not
prove that he fled. He correctly argues that a violation of the statute requires proof of “running
4
See, e.g., Tokora-Mansary v. Commonwealth, No. 2494-08-4, slip op. at 9, 2009
WL 5083540, at *5 (Va. Ct. App. Dec. 29, 2009) (“[D]isorderly conduct was not ‘comprised
solely of conduct “otherwise made punishable”’ under Title 18.2.”); Cary v. Commonwealth, No.
2068-14-1, 2015 WL 6143660 (Va. Ct. App. Oct. 20, 2015) (finding disorderly conduct
conviction not based on same conduct as obstruction of justice conviction). “Unpublished
opinions . . . have no precedential value.” Brandau v. Brandau, 52 Va. App. 632, 639 n.2
(2008). Nevertheless, the citation of an unpublished opinion “is permitted as informative.” Rule
5A:1(f).
5
Given the narrow scope of appellant’s argument, we need not address whether he could
have been convicted of another offense in Title 18.2, other than public intoxication and
attempted flight from a law enforcement officer, based solely on the evidence supporting his
disorderly conduct conviction. See Battle, 50 Va. App. at 141-42 (holding that all of the conduct
supporting the defendant’s conviction under Code § 18.2-415 was encompassed by other
offenses in Title 18.2, including assault, fighting words, and obstructing “free passage,” and
therefore, he could not be convicted of disorderly conduct).
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away or movement away from the officer’s immediate span of control.” He invokes Joseph v.
Commonwealth, 64 Va. App. 332 (2015), in which “this Court reversed a conviction under the
predecessor of Code § 18.2-460(E)—i.e., Code § 18.2-479.1.” Peters v. Commonwealth, 72
Va. App. 378, 387 (2020).6
Code § 18.2-460(E) 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.
In Joseph, the defendant “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.” Peters, 72 Va. App. at 387-88 (alterations in original) (quoting
Joseph, 64 Va. App. at 340). The Court held that “the fact that the appellant was clearly
‘resisting’ the officer’s efforts to lawfully arrest him [was not] dispositive because the clear
language in [the statute] requires that the offender be ‘fleeing’ from the officer as an element of
the crime.” Joseph, 64 Va. App. at 340. Accordingly, “‘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. Because the evidence failed to prove that the defendant
was “beyond” the officer’s “immediate span of control,” the Court reversed his conviction. Id.;
6
Code § 18.2-479.1 was repealed in 2018. Peters, 72 Va. App. at 387 n.6. “The case
law that interpreted and applied Code § 18.2-479.1 applies in interpreting and applying Code
§ 18.2-460(E).” Id.
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see also Peters, 72 Va. App. at 388 (“[T]he trial court erred by holding simply that Peters’s
refusal to place his hands behind his back was sufficient for a conviction under Code
§ 18.2-460(E).”).
On appeal, the Commonwealth argues that appellant “fled” when he “broke away” from
the officers, as well as when he “walk[ed] past Officer Simmons such that the officer had to
reach out and grab [appellant]’s backpack to stop him.” Nevertheless, the Commonwealth
concedes that the “officers . . . held onto [appellant]’s clothing.” At trial, Simmons was asked
about the specific instances when appellant attempted to flee. Simmons answered that appellant
attempted to flee “multiple times.” He emphasized that appellant “buck[ed] . . . trying to get
away from us” as the officers walked him to the patrol car, but they “ha[d] him hooked under his
arms so he couldn’t get away.” Simmons also stressed that appellant was “tugging on my
firearm” when they reached the car. When asked if appellant ever “broke away” from the
officers, Simmons replied that he did so “multiple times in the beginning of the video. You see
him break his hands away from to where [sic] we have to take him to the ground.”
In Simmons’s body camera footage, neither he nor Webb announced to appellant that he
was under arrest as they approached him; instead, as Simmons drew closer to appellant, he
asked, “What’s the deal, man?” After an unidentified voice referred to a “camera,” appellant
turned his back to Simmons, but remained within arm’s reach of Simmons, enabling the officer
to grab appellant’s backpack and redirect him, stating, “No, no, you go over here.” Simmons’s
hands remained on appellant as he moved appellant toward the railing along the sidewalk.
Further, although the video reflects that appellant struggled with the officers as they attempted to
handcuff him, Simmons testified that the officers took appellant “to the ground” when he pulled
his hands away, demonstrating that he “remained continuously in . . . close proximity” to the
officers. Joseph, 64 Va. App. at 340. The testimony and the video establish that appellant never
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moved from the officers’ “immediate span of control” as he resisted being handcuffed. Id. at
341. Because appellant never fled from Simmons by “running away” or “physical[ly] mov[ing]
beyond the scope of the officer’s immediate span of control,” the evidence does not support his
conviction under Code § 18.2-460(E). Id. This Court therefore reverses that conviction.
CONCLUSION
For the foregoing reasons, we reverse appellant’s conviction for attempting to prevent his
arrest by fleeing from a law enforcement officer and affirm his convictions for assault and
battery of a law enforcement officer, attempting to disarm a law enforcement officer, trespass,
and disorderly conduct.
Affirmed in part and reversed in part.
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