Sufficient evidence supports escape by force conviction

Where police arrested appellant on a capias that was issued for criminal contempt, this was sufficient to establish that appellant had been charged with a criminal offense when he was arrested. As a result, his conviction for escaping a police officer with force is affirmed, along with convictions for disarming a police officer, attempted disarming and assault and battery of a police officer.

A struggle

Two police officers, Quindara and Echevarria, responded to a loud party complaint. They encountered appellant Lopez. A records check revealed a capias for his arrest in connection with an assault and battery charge. Quindara attempted to arrest him. Lopez resisted. Echevarria attempted an arrest. Lopez shoved him and ran toward his house. Echevarria pursued and fired a stun weapon into Lopez’s back.

Lopez ran into the house and fell onto a sofa. In the ensuing struggle, Lopez attempted to get the stun weapon from Echevarria. Echevarria secured the weapon. Lopez began pushing and shoving Echevarria, who then pepper sprayed Lopez’s face.

The struggle continued. Lopez pushed Echevarria to the floor. He got up, drew his baton and attempted to strike Lopez’s knee. Lopez shoved him to the floor and gained control of the baton when Echevarria dropped it. Lopez was standing over Echevarria with the baton when Quindara arrived and pulled Lopez away. Both officers were then able to subdue Lopez and complete the arrest.

Trial

“At the conclusion of the Commonwealth’s case in chief, Lopez moved to strike as to the escape, disarming, and attempted disarming charges. He argued that all the elements of the escape statute had not been met because the capias was not a ‘criminal offense’ within the meaning of Code § 18.2-478.

“With respect to the disarming and attempted disarming charges, Lopez argued that the evidence failed to show that he acted with the requisite intent to impede Echevarria in the performance of his duties. The trial court denied Lopez’s motion to strike.”

Lopez was convicted of all charges.

Escape conviction

“In appealing his escape from custody conviction, Lopez assigns error to the trial court’s finding that he was ‘charged with a criminal offense at the point of his initial arrest.’ Lopez maintains that ‘[a] bench warrant alleging contempt is not a “charge of criminal offense” within the intendment of Code § 18.2-478.’

“Rather, Lopez asserts that, after applying the rule of strict construction, a contempt warrant charging a violation of Code § 18.2-456 does not ‘clearly’ fall within the language of the prohibition contained in Code § 18.2-478, ‘on a charge of criminal offense.’ …

“The statute does not define the phrase ‘on a charge of criminal offense,’ and whether contempt charged under Code § 18.2-456 falls within the statute’s scope is a question of first impression. …

“First, we note that, as even Lopez conceded at oral argument in this Court, the capias was for a charge of criminal, as opposed to civil, contempt. … Additionally, we note that the matter underlying the capias was a failure to comply with conditions related to a charge of assault and battery, which is clearly a criminal offense.

“The conditions were imposed related to that criminal offense, and the instant capias was issued to vindicate the court and the conditions imposed. Thus, given its purpose, the capias appears to have been part of the underlying assault and battery proceeding.

“As a result, the matter is analogous to Johnson v. Commonwealth, 21 Va. App. 102 (1995).” Johnson failed to appear for sentencing on robbery and firearm convictions. When police arrested him on the outstanding warrant, he escaped forcefully and was later charged under Code § 18.2-478.

The Court of Appeals held “that ‘the warrant was not only relevant, but it was also sufficient to prove that if appellant was in custody, he was being held on a charge of criminal offense[.]”

In Lopez’s case, the “issuance of the capias was directly related to Lopez’s failure to comply with the conditions imposed upon him arising from his underlying assault and battery case, a criminal offense. Just as formal proceedings for criminal robbery and use of firearms charges were in progress when Johnson escaped from custody in that case, formal proceedings for a criminal charge, assault and battery, had not been concluded when Lopez escaped from Echevarria’s custody. …

“[W]e find that ‘on a charge of criminal offense’ in Code § 18.2-478 includes a capias for contempt of court, provided the capias specifies a criminal statute[.] … “[T]he trial court did not err in finding that Lopez had been charged with a criminal offense at the point of his initial arrest.”

Disarming conviction

“Lopez also contends that the evidence was insufficient to prove that he attempted to disarm Echevarria of his stun weapon and disarmed Echevarria of his baton because the evidence failed to prove that he had the intent to impede Echevarria in the performance of his official duties when he touched Echevarria’s stun weapon and baton. …

“While Lopez argues that he was merely trying to retreat and avoid being hurt by the officers, the credible evidence discussed shows more than dodging the attempts to place him into custody. Rather, Lopez repeatedly engaged Echevarria by shoving his chest, grabbing his stun weapon, lunging toward Echevarria, charging Echevarria as the officer retreated, shoving his face, trying to grab his head and take him to the floor, and shoving him toward the stairs, which caused Echevarria to fall and lose his baton.

“This conduct – especially combined with the threatening statements Lopez made to Echevarria after learning that he was under arrest – entitled the trial court to disbelieve Lopez’s self-serving testimony as to his stated intent and conclude that he lied to conceal his guilt.”

This same evidence, as depicted on video of the incident, is sufficient to establish an unlawful touching for purposes of Lopez’s assault and battery conviction.

Affirmed.

Lopez v. Commonwealth, Record No. 0266-20-1, March 2, 2021. CAV (Athey) from Chesapeake City Cir. Ct. (Hawkes). John L. Jones IV for appellant, Maureen E. Mshar for appellee. VLW 021-7-026, 13 pp. Published.