William Thaddeus Perry v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Huff, Judges Decker and AtLee
UNPUBLISHED
Argued at Chesapeake, Virginia
WILLIAM THADDEUS PERRY
MEMORANDUM OPINION* BY
v. Record No. 0154-15-1 JUDGE MARLA GRAFF DECKER
DECEMBER 29, 2015
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Christopher W. Hutton, Judge
(Tyrone C. Johnson, on brief), for appellant. Appellant submitting
on brief.
Craig W. Stallard, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
William Thaddeus Perry appeals his conviction for misdemeanor resisting arrest in
violation of Code § 18.2-479.1. He argues that the evidence is insufficient to support his
conviction because it fails to prove that he intended to resist arrest by fleeing, as required by the
statute. We hold that the evidence, viewed under the proper legal standard, is sufficient to prove
the required intent, and we affirm the appellant’s conviction.1
I. BACKGROUND
On the evening of February 4, 2014, the appellant had dinner with his girlfriend, Holly
George, and several others at a residence in the City of Hampton. After dinner, the appellant
said he would kill himself if George did not leave with him. He then had a physical altercation
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
The appellant was also convicted of attempted malicious wounding in violation of Code
§§ 18.2-26, 18.2-51. That conviction is not before this Court.
with her and three others at the residence who tried to calm him down. After the men
successfully restrained the appellant, one of the individuals called the police.
Senior Patrol Officer Christopher Mathey of the Hampton Division of Police responded
to the residence. Officer Mathey arrested the appellant for multiple counts of attempted
malicious wounding. After a brief trip to the hospital for medical treatment for the appellant,
Mathey took him to “adult lockup” at the jail. Mathey testified that “[u]p until that point of
arriving at lockup [the appellant] was relatively cooperative with [his] request[s] and generally
with [the] investigation,” although he asked repeatedly whether the crime for which he had been
arrested was a felony or misdemeanor. Mathey told the appellant that he would receive more
specific information about the charges when he appeared before a magistrate.
The officer described the series of events that occurred once he arrived at the lockup with
the appellant. Mathey stopped his police car outside “what’s commonly called a sally port[,]
where [law enforcement] vehicles are parked within so that prisoners can be turned over to
deputies.” Two police vehicles were already parked inside the sally port. Consequently, Officer
Mathey parked outside the structure, adjacent to the gate. Mathey got out of his police car and
secured his weapon and ammunition in the trunk. The officer then got the appellant out of the
car and took him to the call box at the gate in order to obtain entry to the facility through the
sally port. The appellant’s handcuffed hands were positioned in front of his body, where they
had been placed while he was at the hospital in order to facilitate his medical treatment.
Officer Mathey paged the deputies on the call box while standing just outside the sally
port gate. At that time, the officer had his left hand on the appellant’s right bicep as the appellant
stood between him and the gate. When the gate began to rise and was about two feet above the
ground, the appellant “made a quick action,” turning left and away from the officer “in an
-2-
attempt to break [his] grasp.” The appellant succeeded in breaking from Mathey’s grasp,
although the officer “immediately regained [it] as [he] grabbed on to [the appellant’s] jacket.”
Mathey provided more details regarding the appellant’s actions. According to the officer,
before he grabbed onto the appellant’s jacket, the appellant “made steps . . . away from the sally
port gate.” Mathey indicated further that the appellant took “a few short steps as he began to
attempt to flee.” The officer caught the appellant by his jacket, placed his right hand on the
appellant’s left bicep, and “turned him back towards the gate.” At that point, the appellant again
was between the officer and the gate. The gate had opened enough for Mathey to take the
appellant inside, so the officer “forc[ed] [the appellant] to walk backwards” into that area before
he attempted to gain “more positive control” of him. According to Mathey, he took those steps
because of the appellant’s “very overt action of trying to flee from [his] custody.” Mathey
reiterated that the appellant’s actions “very specific[ally]” indicated that he was “trying to break
[Mathey’s] custody.”
The officer testified that throughout the incident, he repeatedly told the appellant to stop
resisting. When he finally was able to push the appellant through the gate into the sally port, the
appellant responded, “[O]kay, you got me, you got me.”
The appellant was indicted for the misdemeanor offense of “intentionally prevent[ing] or
attempt[ing] to prevent a law-enforcement officer from lawfully arresting him,” in violation of
Code § 18.2-479.1. In a bench trial, he argued that his “br[eaking] away” from custody “for a
second” before the officer “grabbed him” again did not prove resisting arrest. The judge
disagreed, convicting the appellant of resisting arrest and sentencing him to twelve months’
incarceration, which the judge ordered to run concurrently with his sentence for attempted
malicious wounding.
-3-
II. ANALYSIS
The appellant challenges the sufficiency of the evidence to prove that he acted with the
requisite intent to resist arrest.2 In our review of the issue, this Court considers “the evidence
presented at trial in the light most favorable to the Commonwealth, the prevailing party below.”
Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008). “Viewing the record
through this evidentiary prism requires [the Court] to ‘discard the evidence of the accused in
conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to
the Commonwealth and all fair inferences to be drawn [from that evidence].’” Cooper v.
Commonwealth, 54 Va. App. 558, 562, 680 S.E.2d 361, 363 (2009) (quoting Parks v.
Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980)). We will affirm the judgment of
the trier of fact unless it is “plainly wrong or without evidence to support it.” Bolden, 275 Va. at
148, 654 S.E.2d at 586.
Critical to our analysis is that we do not substitute as the trier of fact, who was in the
position to see and hear the witnesses as they testified, and to make credibility determinations.
Redmond v. Commonwealth, 57 Va. App. 254, 265, 701 S.E.2d 81, 86 (2010). Consequently,
decisions regarding the credibility of the witnesses and the weight of the evidence are matters
left solely to the fact finder below. Id. Additionally, when reviewing a case, this Court “does
not ‘ask itself whether it believes that the evidence at the trial established guilt beyond a
reasonable doubt.’” Crowder v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d 384, 387
2
The sole assignment of error before the Court challenges only the sufficiency of the
evidence to prove intent. To the extent that the appellant preserved this challenge below, we
conclude infra that it is without merit. See Luginbyhl v. Commonwealth, 48 Va. App. 58, 64,
628 S.E.2d 74, 77 (2006) (en banc) (recognizing that “an appellate court may structure a decision
upon an ‘assuming but not deciding’ basis”); cf. Podracky v. Commonwealth, 52 Va. App. 130,
134-35, 662 S.E.2d 81, 84 (2008) (applying Luginbyhl to assume without deciding that the
appellant had standing and resolving the case based on the conclusion that his rights were not
violated).
-4-
(2003) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). Instead, the question is
“whether . . . any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444,
447 (2003) (en banc) (emphasis added) (quoting Jackson, 443 U.S. at 319). The trier of fact, not
the appellate court, resolves conflicts in testimony, weighs the evidence, and “draw[s] reasonable
inferences from basic facts to ultimate facts.” Id. at 257-58, 584 S.E.2d at 447 (quoting Jackson,
443 U.S. at 319). It is under these well-established standards that we review the sufficiency of
the evidence in this case.
Code § 18.2-479.1 provides that “[a]ny person who intentionally prevents or attempts to
prevent a law-enforcement officer from lawfully arresting him” is guilty of a Class 1
misdemeanor. Code § 18.2-479.1(A). The statute further states, in pertinent part, that “[f]or
purposes of this section, intentionally preventing or attempting to prevent a lawful arrest means
fleeing from a law-enforcement officer when . . . the officer applies physical force to the person.”
Code § 18.2-479.1(B)(i).
The appellant characterizes the evidence as proving only that he turned and moved a few
steps away from Officer Mathey. He argues that this evidence was insufficient to prove that he
acted with the requisite intent to resist arrest as defined in Code § 18.2-479.1 because he did not
protest his arrest verbally or “run away even though he might have done so.” However, as this
Court observed in Joseph v. Commonwealth, 64 Va. App. 332, 768 S.E.2d 256 (2015), “fleeing
from a law-enforcement officer” under Code § 18.2-479.1 may be proved not only by headlong
flight or “running away” but also by lesser “physical movement beyond the scope of the officer’s
immediate span of control.” Id. at 341, 768 S.E.2d at 260. Consequently, the evidence was
sufficient to support the conviction if it proved that the appellant intentionally attempted to avoid
arrest by moving beyond Officer Mathey’s “immediate span of control.” Id.
-5-
“Intent is the purpose formed in a person’s mind at the time an act is committed.”
Johnson v. Commonwealth, 53 Va. App. 79, 100, 669 S.E.2d 368, 378 (2008) (quoting
Commonwealth v. Taylor, 256 Va. 514, 519, 506 S.E.2d 312, 314 (1998)). Whether the
defendant had the required intent is generally a question for the trier of fact. Id. at 100-01, 669
S.E.2d at 378. A defendant’s intent, by its very nature, may and often must be proved by
circumstantial evidence. E.g., Simon v. Commonwealth, 58 Va. App. 194, 206, 708 S.E.2d 245,
251 (2011). Circumstantial evidence of intent may include a person’s statements and conduct,
including those “after the events that constitute the charged crime.” Id. In determining intent,
“[t]he fact finder . . . is entitled to draw inferences” from the facts proved to be true, “so long as
the inferences are reasonable and justified.” Moody v. Commonwealth, 28 Va. App. 702, 706,
508 S.E.2d 354, 356 (1998). Additionally, the fact finder may infer that a person “intends the
natural, probable consequences of his or her actions.” Ellis v. Commonwealth, 281 Va. 499,
507, 706 S.E.2d 849, 853 (2011).
“Circumstantial evidence is as competent and is entitled to as much weight as direct
evidence . . . .” Holloway v. Commonwealth, 57 Va. App. 658, 665, 705 S.E.2d 510, 513 (2011)
(en banc) (quoting Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983)).
When a conviction is based on circumstantial evidence, that evidence must “exclude every
reasonable hypothesis except that of guilt.” Coleman, 226 Va. at 53, 307 S.E.2d at 876. This
requirement “is simply another way of stating that the Commonwealth has the burden of proof
beyond a reasonable doubt.” Commonwealth v. Hudson, 265 Va. 505, 513, 578 S.E.2d 781, 785
(2003). “[T]he Commonwealth need only exclude reasonable hypotheses of innocence that flow
from the evidence, not those that spring from the imagination of the defendant.” Emerson v.
Commonwealth, 43 Va. App. 263, 277, 597 S.E.2d 242, 249 (2004) (quoting Hamilton v.
Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993)). Whether a “hypothesis of
-6-
innocence is reasonable is a question of fact and, therefore, is binding on appeal unless plainly
wrong.” Id. (quoting Archer v. Commonwealth, 26 Va. App. 1, 12-13, 492 S.E.2d 826, 832
(1997)).
In the instant case, the circumstantial evidence, viewed under the appropriate legal
standard, was sufficient to prove that the appellant acted with the intent required to support his
conviction for violating Code § 18.2-479.1. Officer Mathey arrested the appellant for multiple
counts of attempted malicious wounding in response to a 911 call. Although the appellant was
generally cooperative, he expressed concern over whether the charges were felonies or
misdemeanors. The facts show that upon arrival at the adult lockup, the appellant was faced with
his last potential opportunity to attempt an escape before entering the secure area of the jail, and
the record supports the conclusion that the appellant intentionally took advantage of that
opportunity.
Mathey, who was forced to park outside the secured sally port because it was occupied by
other police vehicles, locked his firearm in the trunk of his police car before removing the
appellant from the vehicle’s passenger area. The appellant’s hands were handcuffed in front of
his body rather than behind it, providing him with better balance than he might otherwise have
had. Mathey stood with the appellant in front of the sally port gate as he took steps to gain entry
to the secure area of the facility in order to complete the formal arrest process. Mathey, who was
unarmed and alone with the appellant, had a single hand on one of the appellant’s biceps as he
operated the call box to request entry.
This evidence supports the inference that the appellant was presented with a confluence
of circumstances providing the last reasonable opportunity to attempt an escape. When the sally
port gate had risen about two feet, not yet high enough to allow Mathey and the appellant to
enter, the appellant “made a quick action and turned . . . away from [the officer].” Mathey
-7-
testified that the appellant’s actions were an obvious attempt to escape from his grasp and that
the appellant in fact succeeded in breaking free. The officer testified further that the appellant
then “began to attempt to flee” by moving “away from the sally port gate.”
As the appellant took a few steps away from the gate, Mathey was able to grab his jacket
but not the appellant himself. While still holding onto the appellant’s jacket, Mathey put his
hand on the appellant’s bicep, instructed him repeatedly to “stop resisting,” and forced him to
walk backward through the gate into the sally port. Officer Mathey explained that he moved the
appellant backward toward the open gate before he was able to regain a good grip on the
appellant’s arm because of what he described as the appellant’s “very overt action of trying to
flee from [his] custody.”
This evidence supports the reasonable inference that the appellant acted with the intent to
flee, at the most opportune moment to do so, and that he would have continued his attempt if
Officer Mathey had not grabbed his jacket to regain control of him. Additionally, as Mathey
forcefully directed the appellant backward through the open gate, the appellant said, “[O]kay,
you got me, you got me.” The appellant’s actions and statements, and the reasonable inferences
flowing from them, including the timing of the appellant’s decision to act, were sufficient to
prove that he “intentionally . . . attempt[ed] to prevent” Officer Mathey from lawfully arresting
him by moving beyond Mathey’s “immediate span of control,” albeit momentarily. See Code
§ 18.2-479.1; Joseph, 64 Va. App. at 341, 768 S.E.2d at 260.
The appellant contends that the evidence failed to exclude the reasonable hypothesis that
he merely “wrested himself free of an uncomfortable or overbearing grasp upon his arm” and,
therefore, did not act with the intent to flee. However, this hypothesis does not support reversal
for two reasons. First, the appellant did not argue this hypothesis of innocence to the trial court.
See Hudson, 265 Va. at 514, 578 S.E.2d at 786. At trial, he contended only that his “br[eaking]
-8-
away” from custody “for a second” before the officer grabbed him again was insufficient to
prove the charged offense. Second, the evidence in the record does not support the appellant’s
hypothesis. See Emerson, 43 Va. App. at 277, 597 S.E.2d at 249. The evidence, to the contrary,
supports the conclusion that the appellant intended to flee, broke from the officer’s grasp, moved
away from his immediate control, and would have traveled more than a few steps if Officer
Mathey had not quickly managed to grab onto his jacket. The appellant’s response upon being
caught, “[O]kay, you got me, you got me,” supports the finding that the only reasonable
hypothesis flowing from the evidence was that he intended to flee.
III. CONCLUSION
The evidence, viewed in the light most favorable to the Commonwealth, supports the trial
court’s finding that the appellant acted with the requisite intent to prove he resisted arrest as defined
by Code § 18.2-479.1. Therefore, we affirm the conviction.
Affirmed.
-9-