                                             COURT OF APPEALS OF VIRGINIA


              Present: Chief Judge Huff, Judges Decker and AtLee
UNPUBLISHED


              Argued at Chesapeake, Virginia


              WILLIAM THADDEUS PERRY
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 0154-15-1                                  JUDGE MARLA GRAFF DECKER
                                                                               DECEMBER 29, 2015
              COMMONWEALTH OF VIRGINIA


                                 FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
                                             Christopher W. Hutton, Judge

                               (Tyrone C. Johnson, on brief), for appellant. Appellant submitting
                               on brief.

                               Craig W. Stallard, Assistant Attorney General (Mark R. Herring,
                               Attorney General, on brief), for appellee.


                     William Thaddeus Perry appeals his conviction for misdemeanor resisting arrest in

              violation of Code § 18.2-479.1. He argues that the evidence is insufficient to support his

              conviction because it fails to prove that he intended to resist arrest by fleeing, as required by the

              statute. We hold that the evidence, viewed under the proper legal standard, is sufficient to prove

              the required intent, and we affirm the appellant’s conviction.1

                                                      I. BACKGROUND

                     On the evening of February 4, 2014, the appellant had dinner with his girlfriend, Holly

              George, and several others at a residence in the City of Hampton. After dinner, the appellant

              said he would kill himself if George did not leave with him. He then had a physical altercation


                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                      The appellant was also convicted of attempted malicious wounding in violation of Code
              §§ 18.2-26, 18.2-51. That conviction is not before this Court.
with her and three others at the residence who tried to calm him down. After the men

successfully restrained the appellant, one of the individuals called the police.

       Senior Patrol Officer Christopher Mathey of the Hampton Division of Police responded

to the residence. Officer Mathey arrested the appellant for multiple counts of attempted

malicious wounding. After a brief trip to the hospital for medical treatment for the appellant,

Mathey took him to “adult lockup” at the jail. Mathey testified that “[u]p until that point of

arriving at lockup [the appellant] was relatively cooperative with [his] request[s] and generally

with [the] investigation,” although he asked repeatedly whether the crime for which he had been

arrested was a felony or misdemeanor. Mathey told the appellant that he would receive more

specific information about the charges when he appeared before a magistrate.

       The officer described the series of events that occurred once he arrived at the lockup with

the appellant. Mathey stopped his police car outside “what’s commonly called a sally port[,]

where [law enforcement] vehicles are parked within so that prisoners can be turned over to

deputies.” Two police vehicles were already parked inside the sally port. Consequently, Officer

Mathey parked outside the structure, adjacent to the gate. Mathey got out of his police car and

secured his weapon and ammunition in the trunk. The officer then got the appellant out of the

car and took him to the call box at the gate in order to obtain entry to the facility through the

sally port. The appellant’s handcuffed hands were positioned in front of his body, where they

had been placed while he was at the hospital in order to facilitate his medical treatment.

       Officer Mathey paged the deputies on the call box while standing just outside the sally

port gate. At that time, the officer had his left hand on the appellant’s right bicep as the appellant

stood between him and the gate. When the gate began to rise and was about two feet above the

ground, the appellant “made a quick action,” turning left and away from the officer “in an




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attempt to break [his] grasp.” The appellant succeeded in breaking from Mathey’s grasp,

although the officer “immediately regained [it] as [he] grabbed on to [the appellant’s] jacket.”

       Mathey provided more details regarding the appellant’s actions. According to the officer,

before he grabbed onto the appellant’s jacket, the appellant “made steps . . . away from the sally

port gate.” Mathey indicated further that the appellant took “a few short steps as he began to

attempt to flee.” The officer caught the appellant by his jacket, placed his right hand on the

appellant’s left bicep, and “turned him back towards the gate.” At that point, the appellant again

was between the officer and the gate. The gate had opened enough for Mathey to take the

appellant inside, so the officer “forc[ed] [the appellant] to walk backwards” into that area before

he attempted to gain “more positive control” of him. According to Mathey, he took those steps

because of the appellant’s “very overt action of trying to flee from [his] custody.” Mathey

reiterated that the appellant’s actions “very specific[ally]” indicated that he was “trying to break

[Mathey’s] custody.”

       The officer testified that throughout the incident, he repeatedly told the appellant to stop

resisting. When he finally was able to push the appellant through the gate into the sally port, the

appellant responded, “[O]kay, you got me, you got me.”

       The appellant was indicted for the misdemeanor offense of “intentionally prevent[ing] or

attempt[ing] to prevent a law-enforcement officer from lawfully arresting him,” in violation of

Code § 18.2-479.1. In a bench trial, he argued that his “br[eaking] away” from custody “for a

second” before the officer “grabbed him” again did not prove resisting arrest. The judge

disagreed, convicting the appellant of resisting arrest and sentencing him to twelve months’

incarceration, which the judge ordered to run concurrently with his sentence for attempted

malicious wounding.




                                                -3-
                                           II. ANALYSIS

       The appellant challenges the sufficiency of the evidence to prove that he acted with the

requisite intent to resist arrest.2 In our review of the issue, this Court considers “the evidence

presented at trial in the light most favorable to the Commonwealth, the prevailing party below.”

Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008). “Viewing the record

through this evidentiary prism requires [the Court] to ‘discard the evidence of the accused in

conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to

the Commonwealth and all fair inferences to be drawn [from that evidence].’” Cooper v.

Commonwealth, 54 Va. App. 558, 562, 680 S.E.2d 361, 363 (2009) (quoting Parks v.

Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980)). We will affirm the judgment of

the trier of fact unless it is “plainly wrong or without evidence to support it.” Bolden, 275 Va. at

148, 654 S.E.2d at 586.

       Critical to our analysis is that we do not substitute as the trier of fact, who was in the

position to see and hear the witnesses as they testified, and to make credibility determinations.

Redmond v. Commonwealth, 57 Va. App. 254, 265, 701 S.E.2d 81, 86 (2010). Consequently,

decisions regarding the credibility of the witnesses and the weight of the evidence are matters

left solely to the fact finder below. Id. Additionally, when reviewing a case, this Court “does

not ‘ask itself whether it believes that the evidence at the trial established guilt beyond a

reasonable doubt.’” Crowder v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d 384, 387


       2
         The sole assignment of error before the Court challenges only the sufficiency of the
evidence to prove intent. To the extent that the appellant preserved this challenge below, we
conclude infra that it is without merit. See Luginbyhl v. Commonwealth, 48 Va. App. 58, 64,
628 S.E.2d 74, 77 (2006) (en banc) (recognizing that “an appellate court may structure a decision
upon an ‘assuming but not deciding’ basis”); cf. Podracky v. Commonwealth, 52 Va. App. 130,
134-35, 662 S.E.2d 81, 84 (2008) (applying Luginbyhl to assume without deciding that the
appellant had standing and resolving the case based on the conclusion that his rights were not
violated).

                                                 -4-
(2003) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). Instead, the question is

“whether . . . any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444,

447 (2003) (en banc) (emphasis added) (quoting Jackson, 443 U.S. at 319). The trier of fact, not

the appellate court, resolves conflicts in testimony, weighs the evidence, and “draw[s] reasonable

inferences from basic facts to ultimate facts.” Id. at 257-58, 584 S.E.2d at 447 (quoting Jackson,

443 U.S. at 319). It is under these well-established standards that we review the sufficiency of

the evidence in this case.

       Code § 18.2-479.1 provides that “[a]ny person who intentionally prevents or attempts to

prevent a law-enforcement officer from lawfully arresting him” is guilty of a Class 1

misdemeanor. Code § 18.2-479.1(A). The statute further states, in pertinent part, that “[f]or

purposes of this section, intentionally preventing or attempting to prevent a lawful arrest means

fleeing from a law-enforcement officer when . . . the officer applies physical force to the person.”

Code § 18.2-479.1(B)(i).

       The appellant characterizes the evidence as proving only that he turned and moved a few

steps away from Officer Mathey. He argues that this evidence was insufficient to prove that he

acted with the requisite intent to resist arrest as defined in Code § 18.2-479.1 because he did not

protest his arrest verbally or “run away even though he might have done so.” However, as this

Court observed in Joseph v. Commonwealth, 64 Va. App. 332, 768 S.E.2d 256 (2015), “fleeing

from a law-enforcement officer” under Code § 18.2-479.1 may be proved not only by headlong

flight or “running away” but also by lesser “physical movement beyond the scope of the officer’s

immediate span of control.” Id. at 341, 768 S.E.2d at 260. Consequently, the evidence was

sufficient to support the conviction if it proved that the appellant intentionally attempted to avoid

arrest by moving beyond Officer Mathey’s “immediate span of control.” Id.

                                                -5-
       “Intent is the purpose formed in a person’s mind at the time an act is committed.”

Johnson v. Commonwealth, 53 Va. App. 79, 100, 669 S.E.2d 368, 378 (2008) (quoting

Commonwealth v. Taylor, 256 Va. 514, 519, 506 S.E.2d 312, 314 (1998)). Whether the

defendant had the required intent is generally a question for the trier of fact. Id. at 100-01, 669

S.E.2d at 378. A defendant’s intent, by its very nature, may and often must be proved by

circumstantial evidence. E.g., Simon v. Commonwealth, 58 Va. App. 194, 206, 708 S.E.2d 245,

251 (2011). Circumstantial evidence of intent may include a person’s statements and conduct,

including those “after the events that constitute the charged crime.” Id. In determining intent,

“[t]he fact finder . . . is entitled to draw inferences” from the facts proved to be true, “so long as

the inferences are reasonable and justified.” Moody v. Commonwealth, 28 Va. App. 702, 706,

508 S.E.2d 354, 356 (1998). Additionally, the fact finder may infer that a person “intends the

natural, probable consequences of his or her actions.” Ellis v. Commonwealth, 281 Va. 499,

507, 706 S.E.2d 849, 853 (2011).

       “Circumstantial evidence is as competent and is entitled to as much weight as direct

evidence . . . .” Holloway v. Commonwealth, 57 Va. App. 658, 665, 705 S.E.2d 510, 513 (2011)

(en banc) (quoting Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983)).

When a conviction is based on circumstantial evidence, that evidence must “exclude every

reasonable hypothesis except that of guilt.” Coleman, 226 Va. at 53, 307 S.E.2d at 876. This

requirement “is simply another way of stating that the Commonwealth has the burden of proof

beyond a reasonable doubt.” Commonwealth v. Hudson, 265 Va. 505, 513, 578 S.E.2d 781, 785

(2003). “[T]he Commonwealth need only exclude reasonable hypotheses of innocence that flow

from the evidence, not those that spring from the imagination of the defendant.” Emerson v.

Commonwealth, 43 Va. App. 263, 277, 597 S.E.2d 242, 249 (2004) (quoting Hamilton v.

Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993)). Whether a “hypothesis of

                                                 -6-
innocence is reasonable is a question of fact and, therefore, is binding on appeal unless plainly

wrong.” Id. (quoting Archer v. Commonwealth, 26 Va. App. 1, 12-13, 492 S.E.2d 826, 832

(1997)).

       In the instant case, the circumstantial evidence, viewed under the appropriate legal

standard, was sufficient to prove that the appellant acted with the intent required to support his

conviction for violating Code § 18.2-479.1. Officer Mathey arrested the appellant for multiple

counts of attempted malicious wounding in response to a 911 call. Although the appellant was

generally cooperative, he expressed concern over whether the charges were felonies or

misdemeanors. The facts show that upon arrival at the adult lockup, the appellant was faced with

his last potential opportunity to attempt an escape before entering the secure area of the jail, and

the record supports the conclusion that the appellant intentionally took advantage of that

opportunity.

       Mathey, who was forced to park outside the secured sally port because it was occupied by

other police vehicles, locked his firearm in the trunk of his police car before removing the

appellant from the vehicle’s passenger area. The appellant’s hands were handcuffed in front of

his body rather than behind it, providing him with better balance than he might otherwise have

had. Mathey stood with the appellant in front of the sally port gate as he took steps to gain entry

to the secure area of the facility in order to complete the formal arrest process. Mathey, who was

unarmed and alone with the appellant, had a single hand on one of the appellant’s biceps as he

operated the call box to request entry.

       This evidence supports the inference that the appellant was presented with a confluence

of circumstances providing the last reasonable opportunity to attempt an escape. When the sally

port gate had risen about two feet, not yet high enough to allow Mathey and the appellant to

enter, the appellant “made a quick action and turned . . . away from [the officer].” Mathey

                                                -7-
testified that the appellant’s actions were an obvious attempt to escape from his grasp and that

the appellant in fact succeeded in breaking free. The officer testified further that the appellant

then “began to attempt to flee” by moving “away from the sally port gate.”

       As the appellant took a few steps away from the gate, Mathey was able to grab his jacket

but not the appellant himself. While still holding onto the appellant’s jacket, Mathey put his

hand on the appellant’s bicep, instructed him repeatedly to “stop resisting,” and forced him to

walk backward through the gate into the sally port. Officer Mathey explained that he moved the

appellant backward toward the open gate before he was able to regain a good grip on the

appellant’s arm because of what he described as the appellant’s “very overt action of trying to

flee from [his] custody.”

       This evidence supports the reasonable inference that the appellant acted with the intent to

flee, at the most opportune moment to do so, and that he would have continued his attempt if

Officer Mathey had not grabbed his jacket to regain control of him. Additionally, as Mathey

forcefully directed the appellant backward through the open gate, the appellant said, “[O]kay,

you got me, you got me.” The appellant’s actions and statements, and the reasonable inferences

flowing from them, including the timing of the appellant’s decision to act, were sufficient to

prove that he “intentionally . . . attempt[ed] to prevent” Officer Mathey from lawfully arresting

him by moving beyond Mathey’s “immediate span of control,” albeit momentarily. See Code

§ 18.2-479.1; Joseph, 64 Va. App. at 341, 768 S.E.2d at 260.

       The appellant contends that the evidence failed to exclude the reasonable hypothesis that

he merely “wrested himself free of an uncomfortable or overbearing grasp upon his arm” and,

therefore, did not act with the intent to flee. However, this hypothesis does not support reversal

for two reasons. First, the appellant did not argue this hypothesis of innocence to the trial court.

See Hudson, 265 Va. at 514, 578 S.E.2d at 786. At trial, he contended only that his “br[eaking]

                                                -8-
away” from custody “for a second” before the officer grabbed him again was insufficient to

prove the charged offense. Second, the evidence in the record does not support the appellant’s

hypothesis. See Emerson, 43 Va. App. at 277, 597 S.E.2d at 249. The evidence, to the contrary,

supports the conclusion that the appellant intended to flee, broke from the officer’s grasp, moved

away from his immediate control, and would have traveled more than a few steps if Officer

Mathey had not quickly managed to grab onto his jacket. The appellant’s response upon being

caught, “[O]kay, you got me, you got me,” supports the finding that the only reasonable

hypothesis flowing from the evidence was that he intended to flee.

                                         III. CONCLUSION

        The evidence, viewed in the light most favorable to the Commonwealth, supports the trial

court’s finding that the appellant acted with the requisite intent to prove he resisted arrest as defined

by Code § 18.2-479.1. Therefore, we affirm the conviction.

                                                                                               Affirmed.




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