Willie J. Henry, etc. v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Moon, Judges Benton and Elder
Argued at Richmond, Virginia
WILLIE J. HENRY, S/K/A
WILLIE JEROME HENRY OPINION BY
v. 	Record No. 	0246-94-2 	CHIEF JUDGE NORMAN K. MOON
OCTOBER 10, 1995
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HALIFAX COUNTY
William L. Wellons, Judge
Buddy A. Ward, Public Defender (Office of the
Public Defender, on brief), for appellant.
Richard B. Smith, Assistant Attorney General
(James S. Gilmore, III, Attorney
General, 	on brief), for appellee.
Willie Jerome Henry ("Henry"), who was convicted in general
district court of assaulting an officer and obstructing justice
in violation of Code §§ 18.2-57.1 and 18.2-460, respectively,
appeals a subsequent circuit court conviction of escaping from a
police officer in violation of Code § 18.2-478. 	Henry argues
that the evidence was insufficient to convict him of escape, and
that his misdemeanor convictions in general district court bar on
double jeopardy grounds his circuit court conviction under Code
§ 18.2-478. 	Because assault of an officer is not a lesser
included offense of escape from a police officer by use of force
or violence under Code § 18.2-478 and because Henry's act of
obstructing justice was a separate and distinct act from his
escape, which the Commonwealth's evidence supported, we affirm
Henry's conviction.
The Commonwealth's evidence showed, in pertinent part, that

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law-enforcement officers, who had a federal indictment for drug
trafficking, came to Henry's house to arrest him. 	A woman
answered the door and said that Henry was getting dressed and
would be out soon. 	A few minutes later, Henry ran out the back
door into the woods.
The officers pursued Henry through the woods and eventually
caught up with him sitting beside a creek. 	One officer drew his
gun, advised Henry not to move, and informed him that he was
under arrest. 	The officer held Henry at gunpoint for about
thirty seconds while he approached him, and then grabbed Henry by
the arm. 	At this point, Henry struck the officer, shouted "____
you, you can't shoot me," and fled. 	Later, the officers
successfully apprehended Henry after a brief scuffle.
I. 	Sufficiency of the Evidence
An essential element of the escape charge is that the
defendant escaped from "lawful custody." 	Code § 18.2-478. 	Thus,
we must determine whether sufficient evidence proved Henry was in
police custody when he fled from the officers. 	We held in
Castell v. Commonwealth, __ Va. App. ___, ___ S.E.2d ___ (Sept.
12, 1995) (en banc), that a person may escape from the "custody
of an officer" even though he is not in direct physical
restraint. 	Although Castell was construing Code § 18.2-479(B),1
1 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 or by setting fire to the jail, he shall
be guilty of a Class 6 felony.

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the language of the two sections is not significantly different.
Therefore, we hold that Castell controls the issue in this case.
From the evidence presented, the trial judge could have
found beyond a reasonable doubt that Henry submitted to the show
of authority for thirty seconds while being held at gunpoint
before he fled. 	In addition, Henry escaped after the officer had
exercised actual physical force on Henry by grabbing Henry's arm.
Since Henry struck the officer when he fled, the evidence was
sufficient to prove Henry escaped from custody of the law
enforcement officer by use of force or violence.
II. 	Double Jeopardy
A. 	Obstruction of Justice.
Under Blockburger, the "applicable rule is that where the
same act or transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to determine whether
there are two offenses or only one, is whether each provision
requires proof of a fact which the other does not." 	Hill v.
Commonwealth, 2 Va. App. 683, 705-06, 347 S.E.2d 913, 926 (1986)
(quoting Blockburger v. United States, 284 U.S. 299, 304 (1932)).
"The test of whether there are separate acts sustaining several
offenses `is whether the same evidence is required to sustain
them.'" 	Treu v. Commonwealth, 12 Va. App. 996, 997, 406 S.E.2d
676, 677 (1991) (quoting Estes v. Commonwealth, 212 Va. 23, 24,
181 S.E.2d 622, 624 (1971)). 	Two crimes, even though similar
because committed by the same criminal agent during a continuing
course of action against the same victims, are not committed by

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the same act if not simultaneously committed. 	Jones v.
Commonwealth, 218 Va. 757, 761, 240 S.E.2d 658, 661, cert.
denied, 435 U.S. 909 (1978) (theft of money and theft of
automobile during robbery of motel).2
2 While Treu v. Commonwealth and Jones v. Commonwealth, were
cases decided under Code § 19.2-294 rather than the double
jeopardy clause, the analysis for what constitutes the same act or
transaction is the same.

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In this case, the "same act" did not comprise both the
charge of escape under Code § 18.2-478 and obstructing justice
under Code § 18.2-460. 	The act which comprised Henry's escape
occurred during the officer's second encounter with Henry when he
struck the officer and fled after he was in custody on the creek
bank. 	After his escape, during a third encounter, Henry
obstructed justice by impeding the officers in their attempt to
regain custody of him when he struggled with the officers.3
While the two charges grew out of Henry's continuous course of
action, the acts forming the basis for the charges were not
committed simultaneously. 	Each crime was proved without
resorting to evidence necessary to prove the other charge.
Therefore, the Commonwealth's prosecution of Henry for both
escape and obstructing justice was not barred on double jeopardy
grounds.
B. 	Assault
However, the assault charge under Code § 18.2-57.1 did stem
from the same act. 	Thus, we must look at the two offenses
charged for the same act under the Blockburger test. 	"[I]n
applying this test, the two offenses are to be examined in the
abstract, rather than with reference to the facts of the
particular case under review." 	Blythe v. Commonwealth, 222 Va.
722, 726, 284 S.E.2d 796, 798 (1981).
3 Because we hold that the officer's third confrontation with
Henry constituted an obstruction of justice, we do not determine
whether Henry obstructed justice when he initially fled from the
officers when they arrived at Henry's house to take him into
custody on the indictment.

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It is clear that the crime of assault against a
law-enforcement officer under Code § 18.2-57.1 does not contain
the element of escape, as is required for a conviction under Code
§ 18.2-478. 	What we must determine, therefore, is whether the
crime charged under Code § 18.2-57.1 contains an element not
contained in Code § 18.2-478. 	We must determine whether every
escape from the custody of any police officer by force or
violence necessarily includes proof of all of the elements
necessary to sustain an assault conviction. 	See Kauffman v.
Commonwealth, 8 Va. App. 400, 409, 382 S.E.2d 279, 283 (1989).
To prove the crime of escape by use of force or violence under
Code § 18.2-478, the Commonwealth must prove beyond a reasonable
doubt: (1) that the accused was in lawful custody; (2) of "any
police officer"; (3) "on a charge of [a] criminal offense"; and
(4) that by the use of force or violence he left such custody
without lawful permission.
Henry argues that every use of "force or violence" during an
escape constitutes the crime of assault. 	We disagree. 	"It is a
basic rule of statutory construction that a word in a statute is
to be given its everyday, ordinary meaning unless the word is a
word of art." 	Stein v. Commonwealth, 12 Va. App. 65, 69, 402
S.E.2d 238, 241 (1991). 	The word "force" means "power
dynamically considered [or] strength directed to an end."
Commonly, the word "occurs in such connections as to show that
unlawful or wrongful action is meant; e.g. forcible entry."
Black's Law Dictionary 644 (6th ed. 1990). 	"Violence" means an

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"exertion of any physical force so as to injure or abuse (as in
warfare or effecting entrance into a house)," Webster's Third New
International Dictionary 2554 (1981), or an "[u]njust or
unwarranted exercise of force, usually with the accompaniment of
vehemence, outrage or fury." 	Black's Law Dictionary 1570 (6th
ed. 1990). 	Thus, an accused can be convicted of escaping from an
officer by using force or violence not directed at the officer.
For example, an accused could escape from an officer by jimmying
the lock on the door of a squad car. 	In such a case, the accused
could be prosecuted under Code § 18.2-478 because he used force
to break out of the car, even though he did not assault an
officer.
Thus, the crime of escape from lawful custody by use of
force or violence contains an element of proof that is not
required for the crime of assault. 	Because we are required to
examine the two offenses charged against Henry in the abstract,
rather than with an eye on the specific facts of his case, we
hold that the crimes of assaulting an officer under Code
§ 18.2-57.1 and of escape under Code § 18.2-478 each contain
elements of proof that the other does not.
Affirmed.

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Benton, J., dissenting.
Willie Jerome Henry was convicted of violating Code
§ 18.2-478, which provides in pertinent part as follows:
[I]f any person lawfully in the custody of
any police officer on a charge of criminal
offense escapes from such custody by force or
violence, he shall be guilty of a Class 6
felony.
Because the police officer never had control of Henry's person, I
would hold that Henry was not in lawful custody and could not
have violated this statute when he fled. 	See Johnson v.
Commonwealth, ___ Va. App. ___, ___, ___ S.E.2d ___, ___ (1995)
(Benton, J., dissenting); Castell v. Commonwealth, ___ Va. App.
___, ___, ___ S.E.2d ___, ___ (1995) (en banc) (Benton, J.,
dissenting).
"[T]he Due Process Clause protects the accused against
conviction except upon proof beyond a reasonable doubt of every
fact necessary to constitute the crime with which he is charged."
In re Winship, 397 U.S. 358, 364 (1970). 	The Commonwealth
failed to prove beyond a reasonable doubt that Henry was in the
officer's custody. 	The officer was attempting to arrest Henry
when Henry fled. 	The evidence proved that the officer had not
gained control of Henry and that Henry had not submitted to the
officer's authority. 	From the time Henry ran from the house
until the final encounter when the officer put cuffs on Henry's
wrists, Henry never submitted to the officer's authority.
Evidence that the officer pointed his gun at Henry for thirty
seconds while the officer approached and attempted to apprehend

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Henry does not prove that Henry submitted to the officer's
authority. 	The evidence is undisputed that Henry verbally
challenged the officer's willingness to shoot him and fled.
Thus, Henry never submitted to the officer's authority.
Upon this evidence, the Commonwealth did not prove beyond a
reasonable doubt that Henry was in the officer's custody and,
thus, failed to prove the element necessary to sustain a
conviction under Code § 18.2-478. 	For these reasons, I would
hold that the evidence was insufficient to uphold the conviction.