                        COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Lemons and Senior Judge Cole
Argued at Richmond, Virginia


DWAYNE ANTHONY DOUGLAS
                                             MEMORANDUM OPINION * BY
v.   Record No. 1344-98-2                     JUDGE MARVIN F. COLE
                                                NOVEMBER 16, 1999
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
                      Paul M. Peatross, Jr., Judge

            David C. Dickey for appellant.

            Jeffrey S. Shapiro, Assistant Attorney
            General (Mark L. Earley, Attorney General, on
            brief), for appellee.


     Dwayne Anthony Douglas (appellant) was convicted in a jury

trial of assault and attempting to elude the police.      He contends

that the trial court erred by (1) refusing his requested

instruction on the charge of attempting to elude, and (2)

sustaining the Commonwealth's objection to the defense's closing

argument.   We disagree and, for the following reasons, affirm the

convictions.

                                 Facts

     At about 2:15 a.m. on September 7, 1997, appellant and

Charles Eacho tried to enter a fraternity party at the University

of Virginia.    Because their names were not on the "guest list," a


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
fraternity member asked them to leave.   Appellant and Eacho became

upset, said they did not want to cause trouble, but "perhaps they

would be put in a situation where they may need to cause trouble."

Four fraternity members followed appellant and Eacho outside to

the parking lot to ensure that they did not vandalize cars or the

fraternity house.   When appellant reached into his truck, Stephen

Myers (the victim) and the other three fraternity brothers

stopped.   Holding a knife, appellant turned and faced Myers and

said, "Let's see how tough you are now."   While holding the knife,

appellant walked towards Myers until he was only ten feet away.

As appellant approached the fraternity brothers, Eacho pulled out

a gun.   The fraternity brothers ran back to the fraternity house

and called the police.

     Moments later, two police officers arrived and parked so that

the exit from the parking lot was blocked.    Officer Debra Higgins

shined a flashlight on appellant and Eacho, identified herself as

a police officer, and ordered them to stop.    Appellant made eye

contact with Higgins and then jumped in his truck and ignored her

order to stop.   Appellant drove down the stairs at the

Architecture School and onto a sidewalk.   As Higgins radioed for

help, appellant drove down a gravel pathway, which eventually

turns into a service road behind the Architecture School building.

Officer Michael Wells responded with his lights and siren

activated and blocked off the exit from the service road.

Appellant sped towards the roadblock at fifty miles per hour.

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Appellant tried to drive around Wells' marked police car, but

realized he could not drive over the four-foot-high embankment.

Therefore, appellant stopped his vehicle.

     Upon his arrest, the police found a "buck-style" knife in

appellant's back pocket and a loaded handgun in appellant's

vehicle.

     Appellant and Eacho denied being hostile toward the

fraternity brothers.   Rather, they claimed that the fraternity

brothers threatened them as they left the fraternity house.   Eacho

admitted waving a gun at the fraternity brothers, but appellant

denied threatening anyone with a knife.   They claimed they were

trying to get away from the fraternity brothers and mistakenly

drove down the stairs because they were unfamiliar with the area.

They denied trying to go around the roadblock and claimed that

they stopped as soon as they saw the police.

                                 I.

     Appellant contends that the trial court erred by refusing

to give appellant's proffered instruction regarding the attempt

to elude charge.   Appellant's instruction provided, in part,

that "unless you believe that [appellant speeded up and left the

scene] . . . with the intent of eluding a police officer, rather

than with the intent of eluding or escaping from those with whom

he had had some difficulties that night, you cannot find him

guilty of eluding a police officer."   The trial court did not

err in refusing appellant's proffered instruction.    The trial

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court fully and accurately instructed the jury on the attempt to

elude charge.

     "A reviewing court's responsibility in reviewing jury

instructions is 'to see that the law has been clearly stated and

that the instructions cover all issues which the evidence fairly

raises.'"    Darnell v. Commonwealth, 6 Va. App. 485, 488, 370

S.E.2d 717, 719 (1988) (citation omitted).   Granted instruction

10 clearly states the law concerning the elements of the attempt

to elude charge.   Instruction 10 states that, in order to find

defendant guilty of attempting to elude, the Commonwealth must

prove beyond a reasonable doubt

            (1) That the defendant was driving a motor
            vehicle; and (2) That after having been
            given a visible and audible signal to stop
            his motor vehicle, drives such motor vehicle
            in a willful or wanton disregard of such
            signal so as to interfere with or endanger a
            law enforcement vehicle or any other
            property of any person or increases his
            speed and attempts to escape or elude any
            law enforcement officer.

Instruction 10 fully and accurately instructed the jury

regarding the attempt to elude charge.   The court's instruction

enabled the jury to consider all relevant circumstances,

including whether appellant was attempting to elude the police

officers or only the fraternity brothers, without emphasizing

one particular factor as perhaps being more significant.     See

Lynn v. Commonwealth, 27 Va. App. 336, 349, 499 S.E.2d 1, 7

(1998), aff'd, 257 Va. 239, 514 S.E.2d 147 (1999).


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     During closing argument, the parties remained free to argue

whether appellant attempted to elude the police or only the

fraternity brothers.   In fact, defense counsel argued that the

evidence was not clear that Officer Higgins spoke to appellant

in a tone appellant heard or that appellant made eye contact

with the officer before leaving the scene.   Defense counsel

fully argued his theory of the case –- that appellant only

intended to elude or escape from the fraternity brothers, and,

therefore, could not be guilty of attempting to elude the

police.

     Granted instruction 10 clearly and accurately informed the

jury of the elements of the attempt to elude charge.   Therefore,

the trial judge did not err by refusing to grant appellant's

proffered instruction regarding the attempt to elude charge.

The trial court does not err by refusing to give another

instruction related to the same legal principle.   See League v.

Commonwealth, 9 Va. App. 199, 210, 385 S.E.2d 232, 239 (1989),

aff'd on reh'g en banc, 10 Va. App. 428, 392 S.E.2d 510 (1990).

                                II.

     Appellant contends that the trial court erred by sustaining

the Commonwealth's Attorney's objection to defense counsel's

closing argument.   Because defense counsel's argument was

improper, the trial court did not err by sustaining the

objection.



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               "The purpose of closing argument is to
          summarize the evidence for the jury, to
          persuade the jury to view the evidence in
          the light most favorable to the client, and
          to apply that evidence to the law in a
          manner which will result in a verdict
          favorable to the client."

Canipe v. Commonwealth, 25 Va. App. 629, 639, 491 S.E.2d 747,

751 (1997) (quoting Charles E. Friend, The Law of Evidence in

Virginia § 21-1(b)(1) (4th ed. 1993)).   Defense counsel is

entitled to make the full range of arguments relevant to

persuading the jury that the defendant is not guilty of the

charged crime.   See id. at 640, 491 S.E.2d at 752.    "The

decision regarding the appropriateness of a closing argument is

committed to the discretion of the trial court."      Id. at 639,

491 S.E.2d at 751-52.   Unless it "'affirmatively appears that

such discretion has been abused and that the rights of the

complaining litigant have been prejudiced,'" an appellate court

will not interfere with the trial court's ruling.      See id. at

640, 491 S.E.2d at 752 (citation omitted).

     During his closing argument, appellant's counsel attempted

to present an opinion from a speech given by former Chief

Justice Warren Burger concerning a sociological study allegedly

indicating that most juries do not understand the burden of

proof in a criminal case.   Appellant's counsel stated "that 90%

or 80%, . . . of jurors who were sworn to uphold the law,

nevertheless believe the defendant has to prove his innocence."

This study was not evidence in appellant's case and was

                               - 6 -
irrelevant to appellant's case.    The trial court sustained the

Commonwealth's Attorney's objection and said,

            I've instructed the jury that the burden is
            on the Commonwealth so I don't want to state
            anything else that's a belief by any Chief
            Justice. . . . My instructions are clear
            and I don't want to confuse them. So the
            burden is on the Commonwealth. The
            Commonwealth has to prove it. The defendant
            doesn't have to prove anything. That's
            clear. So just go ahead and argue your
            case.

     In Canipe, Canipe's counsel made a closing argument

regarding the crime of "hit and run" which was not relevant to

the murder charge on which Canipe was being tried.    25 Va. App.

at 639-40, 491 S.E.2d at 752.    The trial court prohibited this

argument.    See id.   This Court agreed that the trial court had

not abused its discretion when it prohibited that argument

because the argument was irrelevant to the charged crime of

murder and it would have confused the jury.     See id.

     Similarly, appellant's counsel's argument regarding former

Chief Justice Burger's speech had no bearing on whether the

Commonwealth had proved the charged offenses beyond a reasonable

doubt.   We cannot say that the trial court abused its discretion

when it prohibited appellant's counsel from continuing his

closing argument regarding Chief Justice Burger's speech about a

sociological study.    Such argument was improper as it was not

relevant to the applicable law regarding the burden of proof in

appellant's trial and would have confused the issues before the


                                 - 7 -
jury.    The trial court's provision in its ruling that

appellant's counsel should "just go ahead and argue [his] case,"

gave counsel sufficient latitude to advocate fully for his

client during closing argument.    Appellant's counsel continued

and argued that appellant was "clothed in the presumption [of

innocence] that stays with you throughout the trial, unless and

until the Commonwealth upon whom the burden rests, proves the

guilt beyond any reasonable doubt."

        Accordingly, the trial court's judgment is affirmed.

                                                     Affirmed.




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