                   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.
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.




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