                 THE COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Bray and Humphreys
Argued at Richmond, Virginia


GEORGE TYRONE HUTCHINSON, a/k/a
 STEVEN DAVIS, a/k/a CHRISTIAN BEANEY    MEMORANDUM OPINION * BY
                                        JUDGE ROBERT J. HUMPHREYS
v.   Record No. 1865-01-2                     JULY 16, 2002

COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                      Thomas N. Nance, Judge

          Craig W. Stallard, Assistant Public Defender,
          for appellant.

          Eugene Murphy, Assistant Attorney General
          (Jerry W. Kilgore, Attorney General, on
          brief), for appellee.


     George Tyrone Hutchinson appeals his convictions, after a

bench trial, for felony failure to appear, pursuant to Code

§ 19.2-128, and for assault of a law enforcement officer,

pursuant to Code § 18.2-57. 1   Hutchinson contends there was

insufficient evidence to sustain the convictions.     For the

reasons that follow, we affirm the judgment of the trial court.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
       Hutchinson was also charged for three drug offenses which
were stricken by the court at trial and are therefore not at
issue on appeal.
                          I.     BACKGROUND

     On January 5, 2001, Officer Erlan Marshall of the Richmond

City Police Department observed Hutchinson driving a car with an

inspection rejection sticker on it.      Accordingly, Marshall

pulled Hutchinson over.   Hutchinson stopped his car in a parking

lot, next to a black Jeep.     As Marshall walked to the driver's

side window, he observed Hutchinson was shaking and appeared to

be very nervous and agitated.    Marshall also detected a strong

odor of marijuana coming from the car.        He asked to see

Hutchinson's driver's license, and Hutchinson told him that he

did not have any identification.    He then asked Hutchinson to

step out of the car and attempted to place him in handcuffs.

     At that point, a struggle ensued.        Marshall and Hutchinson

were "struggling, bouncing off vehicles, fighting each other, in

between vehicles as [Hutchinson] was attempting to get away from

[Marshall]."   Some items of Hutchinson's clothing fell to the

ground during the struggle.    Finally, "[Hutchinson] pushed off

of [Marshall] in [Marshall's] chest area and ran."       Marshall

apprehended Hutchinson a few moments later, with the help of a

bystander.   Marshall had sustained a scratch and a bruise on the

side of his face as a result of the struggle.

     After Hutchinson was taken to the police station, and after

the officers had left the scene, a citizen called Officer Shane

Waite and informed him that he should return to the scene and

look under the Jeep that was parked next to Hutchinson's car.

                                 - 2 -
Officer Waite returned and found a small bag under the Jeep

containing marijuana, heroin and crack cocaine.

     Later that afternoon, felony warrants, including warrants

for drug charges and a warrant for felony assault of a law

enforcement officer, were issued for Hutchinson, setting the

arraignment for January 8, 2001 at 9:00 a.m.   The warrants state

that Hutchinson was served by the sheriff that same day,

January 5, 2001. 2

     An additional warrant was issued for Hutchinson on

January 11, 2001, for felony failure to appear "in the Richmond

General District Court after having been bonded or summoned to

appear on a charge of [p]oss[sion] [of] [c]ocaine, [h]eroin,

[m]arijuana[,] [and] intent[ional] [a]ssault [on a] [p]olice

[o]fficer."   Hutchinson was subsequently indicted for possession

of cocaine with intent to distribute, possession of heroin with

intent to distribute, possession of marijuana with intent to

distribute and assault on a law enforcement officer.   Hutchinson

was also indicted for felony failure to appear, for his failure

to appear in court on January 8, 2001.

     During the trial, the following dialogue took place between

the court and Officer Marshall:


     2
       The warrants were actually issued in the name of Steven
Davis. Hutchinson gave officers this false name upon his arrest
and booking. It was later determined that "Steven Davis" was
Hutchinson, and there is no issue on appeal concerning
Hutchinson's identity.

                               - 3 -
          Court: Officer, were you in court on
          January 8[, 2001]?

          Officer Marshall: No, sir. January 8 was
          the Monday following the arrest. I arrested
          [Hutchinson] on a Friday, and January 8, was
          the, I guess, it was the arraignment day or
          the day they come to court right after. I
          wasn't here . . .

Just before the Commonwealth rested, the following colloquy took

place between the court and the Commonwealth's Attorney:

          Court: I guess there was nobody there on
          the day of [January] 8th[, 2001], none of
          the officers –-

          Commonwealth's Attorney: No, Your Honor.
          No officers were there, it was just the
          arraignment. The Commonwealth would just
          ask the Court to take judicial notice that
          [Hutchinson] wasn't in court on that
          particular day, January 8.

          Court:     All right.

Hutchinson raised no objection to the Commonwealth's request.

The Commonwealth presented no other evidence relating to the

failure to appear charge.

     At the close of the Commonwealth's case, Hutchinson raised

a motion to strike the evidence on each of the charges.    With

regard to the felony failure to appear charge, Hutchinson argued

the Commonwealth "did not present evidence of a witness that the

defendant was not present in court at that time, and that he was

released on bond to appear on that date, and I don't think they

have proven that."    With regard to the assault charge,

Hutchinson argued the Commonwealth failed to prove intent to



                                  - 4 -
injure Officer Marshall.    The court dismissed the drug charges,

but denied the remaining motions.     On the assault charge, the

court found "[Hutchinson] intended to do what he needed to do to

hurt [Officer Marshall] to get up so that he could throw his

drugs under the Jeep."

     Hutchinson presented no evidence, but instead renewed his

motions to strike, incorporating his previous arguments.           The

court found Hutchinson guilty of both charges.

                            II.    ANALYSIS

     On appeal, Hutchinson first argues there was insufficient

evidence to sustain the conviction for failure to appear because

the Commonwealth presented no evidence on the failure to appear

charge and because the request for judicial notice was

inadequate to establish the elements of the offense.

     "Judicial notice involves the admission of a fact in

evidence without proof of that fact because it is commonly known

from human experience." 3   "A trial court may take judicial notice

of those facts that are either (1) so 'generally known' within

the jurisdiction or (2) so 'easily ascertainable' by reference

to reliable sources that reasonably informed people in the




     3
       O'Dell v. Commonwealth, 234 Va. 672, 696 n.7, 364 S.E.2d
491, 505 n. 7 (1988).

                                  - 5 -
community would not regard them as reasonably subject to

dispute." 4

     Here, the trial court took judicial notice, without

objection by Hutchinson, of the fact that Hutchinson failed to

appear in court on January 8, 2001.     Thus, Hutchinson's argument

that the Commonwealth produced no evidence with respect to the

felony failure to appear charge is without merit.      Indeed, the

judicial notice taken by the court was clearly a fact in

evidence, which the court could rely upon in making its

determination.

     Hutchinson's alternative argument, that even if the court

took judicial notice of that fact, it was insufficient to

establish the necessary elements of the offense, specifically,

notice and intent, is barred from our consideration on appeal by

Rule 5A:18.   During trial, Hutchinson argued only that the

Commonwealth failed to produce evidence of a witness that

Hutchinson was not present in court and that he was released on

bond to appear on that date.   Hutchinson failed to present any

argument concerning his contention that the Commonwealth failed to

prove the elements of the offense.     "[T]hough taking the same

general position as in the trial court, an appellant may not rely

on reasons which could have been but were not raised for the


     4
       Taylor v. Commonwealth, 28 Va. App. 1, 7-8, 502 S.E.2d
113, 116 (1998) (quoting Ryan v. Commonwealth, 219 Va. 439, 445,
247 S.E.2d 698, 703 (1978)).

                               - 6 -
benefit of the lower court." 5   We will not consider an argument on

appeal which was not presented to the trial court. 6   Accordingly,

this issue is procedurally barred.

     Hutchinson next contends that the trial court erred in

finding the evidence sufficient as a matter of law to support

the assault charge, as the Commonwealth failed to prove

Hutchinson intended to cause injury to Officer Marshall.

     It is fundamental that "where the sufficiency of the

evidence is challenged on appeal, that evidence must be

construed in the light most favorable to the Commonwealth,

giving it all reasonable inferences fairly deducible therefrom." 7

     In pertinent part, Code § 18.2-57(C) provides as follows:

          [I]f any person commits an assault or an
          assault and battery against another knowing
          or having reason to know that such other
          person is a law-enforcement officer as
          defined hereinafter . . . such person shall
          be guilty of a Class 6 felony, and, upon
          conviction, the sentence of such person
          shall include a mandatory, minimum term of
          confinement for six months which mandatory,


     5
       West Alexandria Properties, Inc. v. First Virginia Mortg.
& Real Estate Inv. Trust, 221 Va. 134, 138, 267 S.E.2d 149, 151
(1980) (citations omitted).
     6
       Rule 5A:18; Buck v. Commonwealth, 247 Va. 449, 452-53, 443
S.E.2d 414, 416 (1994) (issue not preserved where defendant gave
different reason to support Batson claim on brief than at
trial).
     7
       Norman v. Commonwealth, 2 Va. App. 518, 520, 346 S.E.2d
44, 45 (1986) (citing Higginbotham v. Commonwealth, 216 Va. 349,
352, 218 S.E.2d 534, 537 (1975)).



                                 - 7 -
          minimum term shall not be suspended, in
          whole or in part.

     "Assault and battery, . . . requires proof of 'an overt act

or an attempt . . . with force and violence, to do physical

injury to the person of another,' 'whether from malice or from

wantonness,' together with 'the actual infliction of corporal

hurt on another . . . wil[l]fully or in anger.'" 8

     The evidence here was sufficient for the trial judge to find

beyond a reasonable doubt the elements of assault and battery.

The trial judge expressly found that he disbelieved Hutchinson's

testimony, finding that Hutchinson's intent was to do whatever he

had to do, including cause injury to Marshall, in order to escape

arrest.

     "Intent is the purpose formed in a person's mind which may,

and often must, be inferred from the facts and circumstances in a

particular case." 9   "Circumstantial evidence is as competent and

is entitled to as much weight as direct evidence, provided it is

sufficiently convincing to exclude every reasonable hypothesis

except that of guilt." 10


     8
       Boone v. Commonwealth, 14 Va. App. 130, 132, 415 S.E.2d
250, 251 (1992) (citing Jones v. Commonwealth, 184 Va. 679,
681-82, 36 S.E.2d 571, 572 (1946); Merritt v. Commonwealth, 164
Va. 653, 658, 180 S.E. 395, 397 (1935); Wood v. Commonwealth,
149 Va. 401, 404, 140 S.E. 114, 115 (1927)).
     9
       Ridley v. Commonwealth, 219 Va. 834, 836, 252 S.E.2d 313,
314 (1979).
     10
       Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864,
876 (1983).

                                - 8 -
             When facts are equally susceptible to more
             than one interpretation, one which is
             consistent with the innocence of the
             accused, the trier of fact cannot
             arbitrarily adopt an inculpatory
             interpretation. The fact finder, however,
             is entitled to draw inferences from proved
             facts, so long as the inferences are
             reasonable and justified. Furthermore, the
             fact finder may infer that a person intends
             the immediate, direct, and necessary
             consequences of his voluntary acts. Thus,
             when the fact finder draws such inferences
             reasonably, not arbitrarily, they will be
             upheld. 11

     Thus, in struggling so violently when Marshall tried to

handcuff him, Hutchinson clearly acted in a manner of reckless

and wanton disregard for the safety of the officer.       That

Hutchinson acted with an intent to escape does not prevent a

finding that he also acted with a second intent, to assault and,

if necessary, to batter the officer in order to effect that

escape. 12      The trial court was entitled to "infer that

[appellant] intend[ed] the immediate, direct, and necessary

consequences of his voluntary acts." 13      The direct consequence of

Hutchinson's voluntary act of struggling was to inflict physical



     11
       Moody v. Commonwealth, 28 Va. App. 702, 706-07, 508
S.E.2d 354, 356 (1998) (citations omitted).
     12
       See id. at 707-08, 508 S.E.2d at 356-57 (holding fact
that perpetrator in stolen car was attempting to escape parking
lot and motioned pedestrian out of his way did not preclude
finding that perpetrator, who accelerated and did not swerve as
he approached pedestrian, formed specific intent to run over
pedestrian if he did not move).
     13
          Id.

                                   - 9 -
injury upon Marshall.   Accordingly, the circumstantial evidence

was sufficient to prove Hutchinson acted with that intent.

     For the foregoing reasons, the judgment of the trial court

is affirmed.

                                                         Affirmed.




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