Christopher Michael Towns v Commonwealth of VA

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Coleman, Bumgardner and Lemons
Argued at Salem, Virginia
CHRISTOPHER MICHAEL TOWNS MEMORANDUM OPINION* BY
v. 	Record No. 1720-97-3 	JUDGE DONALD W. LEMONS
NOVEMBER 10, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
Willis A. Woods, Judge Designate
Joseph Graham Painter, Jr. (Painter, Kratman,
Pethybridge, Swindell & Crenshaw, on brief),
for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Christopher M. Towns was convicted in a bench trial of
escape in violation of Code § 18.2-479. 	On appeal, he contends
that the evidence was insufficient to support his conviction. 	We
agree and reverse the conviction.
On March 29, 1996, at approximately 10:15 a.m., Officer
Kevin A. Darden, of the Christiansburg Police Department, was
dispatched to the Montgomery County Courthouse, Third Floor, with
a felony warrant for the arrest of Christopher M. Towns. 	Darden
was aware that Towns was appearing in court on another matter and
he waited in the hallway to arrest Towns after the conclusion of
the hearing. 	As Darden was speaking with another person, a
deputy sheriff told him that Towns was entering the elevator. 	As
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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Darden walked to the elevator, the doors closed. 	Darden walked
down the stairs and met Towns as he exited the elevator on the
first floor. 	Darden approached Towns and called out Towns' name.
When Towns turned to face Darden, Darden asked if he was
Christopher Towns and Towns responded affirmatively. 	Upon
telling Towns that he had a warrant for his arrest, Towns asked,
"what for?"
As Darden glanced down to read the warrant, Towns "took off
running" out of the courthouse doors, across two blocks, and into
a park, where Darden caught him and placed him under arrest.
While chasing Towns, Darden called for him to "stop." 	During
this incident, Darden was wearing his police uniform and badge.
SUFFICIENCY OF THE EVIDENCE
When the sufficiency of the evidence is an issue on appeal,
an appellate court must view the evidence and all reasonable
inferences fairly deducible therefrom in the light most favorable
to the Commonwealth. 	Cheng v. Commonwealth, 240 Va. 26, 42, 393
S.E.2d 599, 608 (1990). 	On appeal, the decision of a trial court
sitting without a jury is afforded the same weight as a jury's
verdict and will not be disturbed unless plainly wrong or without
evidence to support it. 	King v. Commonwealth, 217 Va. 601, 604,
231 S.E.2d 312, 315 (1977).
Code § 18.2-479 makes it unlawful for "any person lawfully
. . . in the custody of . . . any law-enforcement officer on a
charge or conviction of a felony" to escape. 	The question on

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appeal is whether Towns was "lawfully in the custody" of Darden
when he fled. 	Both Towns and the Commonwealth cite Castell v.
Commonwealth, 21 Va. App. 78, 461 S.E.2d 438 (1995) (en banc), as
controlling for this determination.
Based upon this Court's en banc decision in Cavell v.
Commonwealth, (Record No. 2168-96-2), published today, Castell is
overruled. 	For the reasons stated in the majority opinion in
Cavell, we hold that whether a person is "in custody" for
purposes of Code § 18.2-479 depends upon whether the officer has
applied direct physical restraint, or in the absence of
restraint, whether the person has submitted to a show of
authority.
In this case, Towns was present in the courthouse on another
matter. 	Darden did not physically touch or restrain Towns.
Although Darden was wearing his police uniform and badge and
Towns admitted that he walked to Darden when his name was called,
Towns never submitted to a show of authority; rather, it is
undisputed that the moment that Darden began to read from the
warrant, Towns ran away. 	Therefore, Towns was not in custody at
the time he fled. 	Accordingly, his conviction is reversed and
dismissed.
Reversed and dismissed.