Mary Parrish Harris v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Humphreys and Clements
Argued at Salem, Virginia
MARY PARRISH HARRIS
MEMORANDUM OPINION * BY
v. Record No. 0795-02-3 JUDGE RUDOLPH BUMGARDNER, III
JANUARY 28, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
Joseph W. Milam, Jr., Judge
Lawrence D. Gott (Office of the Public
Defender, on brief), for appellant.
Kathleen B. Martin, Assistant Attorney
General (Jerry W. Kilgore, Attorney General;
Leah A. Darron, Assistant Attorney General,
on brief), for appellee.
Mary Parrish Harris appeals her conviction of felonious
escape, Code § 18.2-479, 1 contending the evidence was
insufficient. Concluding the evidence supports the conviction,
we affirm.
Officers Gilbert and Conner stopped the defendant while she
was driving her truck to arrest her on a felony capias. Officer
Gilbert obtained her driver's license and registration and
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
"If any person . . . lawfully in the custody . . . of any
law-enforcement officer on a charge . . . of a felony escapes,
otherwise than by force or violence . . . he shall be guilty of
a Class 6 felony." Code § 18.2-479(B).
confirmed that she had no license and that a felony capias
existed. She advised the defendant, "[s]he couldn't drive the
truck away, and that we did have a Circuit Court capias for her
arrest and she would have to come with us." The defendant
became hysterical and said: "I can't go to jail. Let me see my
husband. I've got to get out of here."
When the defendant started screaming, Officer Conner joined
Officer Gilbert at the driver's side of the truck. The
defendant locked the doors and "started to crank the truck up,"
but the windows were still down. Officer Conner leaned in the
window and hooked her left hand under the top of the steering
wheel to get leverage. She pushed the defendant back against
the seat with her right hand trying to restrain the defendant
and prevent her from putting the truck into gear. The defendant
struck the officer's arms with both hands, got the vehicle in
drive, and "hit the gas real hard." The truck stalled after
dragging the officer a few feet, the officer freed herself, and
the defendant drove off again. The two officers pursued the
defendant in their cruiser and apprehended her when she
abandoned the truck and fled on foot.
The trial judge concluded that "[t]here is no doubt in my
mind that [the defendant] was under arrest . . ." and convicted
her of felonious escape. The defendant contends she was never
placed under arrest, was not in custody, and did not submit to
the officers' authority.
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"An arrest requires either physical force . . . or, where
that is absent, submission to the assertion of authority."
California v. Hodari D., 499 U.S. 621, 626-27 (1991). A
defendant is guilty of escape if he flees after being touched by
an officer "with appropriate words of arrest and lawful
authority" to do so. Rollin M. Perkins, Perkins on Criminal Law
500 (2d ed. 1969) (footnote omitted).
In this case, the officer clearly stated that the defendant
could not drive her truck, that they had a felony capias for her
arrest, and that the defendant must come with the officers. The
defendant's emotional reaction and her statement, "I can't go to
jail," prove she understood that the officers intended to arrest
her. Officer Conner applied physical force to complete the
arrest and to prevent her from fleeing.
In Cavell v. Commonwealth, 28 Va. App. 484, 506 S.E.2d 552(1998) (en banc), the officer approached Cavell, told him he was
under arrest, but Cavell fled before the officer touched him.
We reversed the conviction for escape because Cavell never
submitted to authority and the officer never physically
restrained him. "'It would be otherwise had the officer touched
the arrestee for the purpose of apprehending him . . . .'" Id.
at 487, 506 S.E.2d at 554 (quoting Rollin M. Perkins, The Law of
Arrest, 25 Iowa L. Rev. 201, 206 (1940)). In Cavell, the
distinguishing fact was the lack of touching. In this case, the
officer applied physical force for the purpose of completing the
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apprehension. "If an officer having authority to make an arrest
actually touches his arrestee, for the manifested purpose of
apprehending him, the arrest is complete, 'although he does not
succeed in stopping or holding him even for an instant.'"
Perkins on Criminal Law at 500 (footnotes omitted).
Accordingly, we affirm.
Affirmed.
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