                   COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Annunziata and Bumgardner
Argued at Norfolk, Virginia


MAURICE KEVIN WILLIAMS
                                                 OPINION BY
v.   Record No. 0970-98-1                JUDGE ROSEMARIE ANNUNZIATA
                                                MAY 18, 1999
COMMONWEALTH OF VIRGINIA


       FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                     Robert W. Curran, Judge

          (Kevin M. Diamonstein, on brief), for
          appellant. Appellant submitting on brief.

          Linwood T. Wells, Jr., Assistant Attorney
          General (Mark L. Earley, Attorney General,
          on brief), for appellee.


     Maurice K. Williams (“appellant”) appeals his bench trial

conviction of misdemeanor escape in violation of Code

§ 18.2-479, claiming the trial court erred in denying his motion

to strike the Commonwealth’s evidence.    Specifically, he

contends Code § 18.2-479 requires the Commonwealth to prove the

class of the offense for which he was in custody at the time of

the escape.   We disagree and affirm.

                                I.

                            BACKGROUND

     Appellant was an inmate at the Newport News City Farm at

the time of the events material to this appeal.    On October 14,

1997, Lowell Gray, a correctional officer at the City Farm, was
supervising a work detail in the area of Thorncliff Drive in the

City of Newport News.   As a member of the detail, appellant was

in Gray’s custody.   At some point, Gray noticed that appellant

was missing from the detail without permission to leave.   Later

that day, Gray located appellant in the Newport News lock-up

after his recapture by the police.

     At trial, appellant presented no evidence but moved to

strike the Commonwealth’s evidence, contending the Commonwealth

failed to prove an essential element of the offense, to wit,

whether he was incarcerated “on a charge or conviction of” a

felony or a misdemeanor in accordance with Code § 18.2-479.    The

trial court overruled appellant’s motion and found appellant

guilty of misdemeanor escape under Code § 18.2-479(A).   The

court reasoned that proof of custody at the time of the escape

was sufficient to sustain a conviction under this code section

and that evidence of the nature of the accused’s underlying

offense was relevant only to prosecutions in which the

Commonwealth sought to have the court impose enhanced punishment

pursuant to Code § 18.2-479(B).

                                  II.

                         LEGAL PRINCIPLES

     Code § 18.2-479 provides:

          A. If any person lawfully confined in jail
          or lawfully in the custody of any court or
          officer thereof or of any law-enforcement
          officer on a charge or conviction of a

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          misdemeanor escapes, otherwise than by force
          or violence . . . , he shall be guilty of a
          Class 1 misdemeanor.

          B. If any person lawfully confined in jail
          or lawfully in the custody of any court or
          officer thereof or of any law-enforcement
          officer on a charge or conviction of a
          felony escapes, otherwise than by force or
          violence . . . , he shall be guilty of a
          Class 6 felony.

     Appellant asserts that, because Code § 18.2-479

differentiates between individuals who escape while in custody

on a misdemeanor conviction and those who escape while in

custody on a felony conviction, proof of the nature of the

accused’s underlying offense is an essential element of the

offense and must be proved beyond a reasonable doubt.    See

Ganzie v. Commonwealth, 24 Va. App. 422, 428, 482 S.E.2d 863,

866 (1997); Bruce v. Commonwealth, 9 Va. App. 298, 301, 387

S.E.2d 279, 280 (1990).   We decline to adopt appellant’s

construction of the statute.

     The issue of whether the Commonwealth must prove, as a

necessary element of a conviction under Code § 18.2-479, the

class of crime for which an accused has been placed in custody

is one of first impression.    As originally enacted, the offense

underlying the accused’s custody was irrelevant to the

prosecution of an escape charge, and the crime of escape without




                                - 3 -
force or violence was punishable only as a misdemeanor. 1   The

present version of Code § 18.2-479 was enacted in 1985.     The

statute as amended provided that the range of punishment imposed

would be determined based on whether the accused’s underlying

offense was a felony or a misdemeanor.   Code § 18.2-479 has

otherwise remained essentially unchanged through a series of

amendatory actions. 2

     In its present form, the statute establishes two grades of

the offense where, but for the penalty to be imposed, the

elements to be proved are identical.   Where the legislature has

established two grades of an offense, differentiating them only



     1
       For example, until its most recent amendment in 1985, Code
§ 18.2-479 provided:

          If any person lawfully confined in jail or
          lawfully in the custody of any court or
          officer thereof or of any law-enforcement
          officer on a charge or conviction of a
          criminal offense escape, otherwise than by
          force or violence . . . , he shall be guilty
          of a Class 2 misdemeanor.

Code § 18.2-479 (1975).
     2
       For earlier versions of the statute at issue, see Code
§ 18-253 (1950) (“If any person lawfully confined in jail on a
charge or conviction of a criminal offense escape, otherwise
than by force or violence . . . , he shall be confined in jail
not less than thirty days nor more than six months.”), and Code
§ 18.1-290 (1960) (“If any person lawfully confined in jail or
lawfully in the custody of any court or officer thereof or of
any law enforcement officer on a charge or conviction of a
criminal offense escape, otherwise than by force or violence
. . . , he shall be confined in jail not exceeding six months,
or be fined not exceeding five hundred dollars, or both.”).

                              - 4 -
on the basis of penalty, both this Court and the Supreme Court

have held that proof of the element relevant to the enhanced

penalty is not required except in those cases in which the

enhanced penalty is imposed.   In Knight v. Commonwealth, 225 Va.

85, 300 S.E.2d 600 (1983), for example, the Virginia Supreme

Court noted that, although “[t]he value of the goods specified

in the grand larceny statute is an essential element of the

crime,” “‘proof that an article has some value is sufficient to

warrant a conviction of petit larceny, but where the value of

the thing stolen determines the grade of the offense, the value

must be alleged and the Commonwealth must prove the value to be

the statutory amount.’”   Id. at 88, 300 S.E.2d at 601 (quoting

Wright v. Commonwealth, 196 Va. 132, 139, 82 S.E.2d 603, 607

(1954)).   See also Pittman v. Commonwealth, 17 Va. App. 33,

34-35, 434 S.E.2d 694, 695 (1993) (stating that under Code

§ 18.2-104(b), which provided for enhanced punishment for any

third or subsequent conviction of concealing merchandise, “a

crime that on the first or second commission is a misdemeanor,

becomes a felony upon proof of the additional element of its

commission being a third or subsequent such occurrence”).

     The 1985 amendment of Code § 18.2-479 changed only the

grade of the offense and the attendant penalty.   The offense

underlying the custodial status of the accused has historically

not been relevant to determining that a violation of the


                               - 5 -
substantive prohibition of the statute has occurred, viz., that

the accused has escaped from the custody of a law enforcement

officer.   In light of the history of the statute and the

reasoning applied in Knight, which we adopt here, we hold that

proof of the underlying offense for which an accused is in

custody is irrelevant to the determination of guilt, except in

those cases in which the Commonwealth seeks enhanced punishment

under Code § 18.2-479(B).

     Because an accused’s underlying offense is not an essential

element of Code § 18.2-479 for the purpose of establishing

guilt, and because appellant does not contest the sufficiency of

the evidence as to the remaining elements of Code § 18.2-479, we

find the evidence sufficient to sustain appellant’s conviction

of misdemeanor escape under Code § 18.2-479(A) and affirm his

conviction.

                                                        Affirmed.




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