                                         COURT OF APPEALS OF VIRGINIA


            Present: Judges Humphreys, Beales and McCullough
PUBLISHED


            Argued at Alexandria, Virginia


            ANTWAIN MAURICE JONES
                                                                                OPINION BY
            v.     Record No. 0087-14-4                                  JUDGE RANDOLPH A. BEALES
                                                                             FEBRUARY 18, 2015
            COMMONWEALTH OF VIRGINIA


                              FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
                                          Louise M. DiMatteo, Judge

                           William H. Miller, Assistant Public Defender (Office of the Public
                           Defender, on brief), for appellant.

                           Susan Baumgartner, Assistant Attorney General (Mark R. Herring,
                           Attorney General, on brief), for appellee.


                   Antwain Maurice Jones (appellant) appeals his conviction for felony eluding in violation

            of Code § 46.2-817(B). Appellant contends that the trial court erred in denying his motion to

            strike on the ground that “the evidence was that the defendant stopped upon receiving a visible

            and audible signal from the police officer.” We hold that the trial court did not err when it

            denied appellant’s motion to strike the Commonwealth’s evidence on the felony eluding charge,

            and, accordingly, for the following reasons, we affirm appellant’s conviction for felony eluding.

                                                     I. BACKGROUND

                   We consider the evidence on appeal “‘in the light most favorable to the Commonwealth,

            as we must since it was the prevailing party’” in the trial court. Beasley v. Commonwealth, 60

            Va. App. 381, 391, 728 S.E.2d 499, 504 (2012) (quoting Riner v. Commonwealth, 268 Va. 296,

            330, 601 S.E.2d 555, 574 (2004)).
       In this case, Officer Stephen Smith of the Arlington Police Department testified that, on

March 31, 2011, he and Corporal Trainer were driving in a marked police cruiser when Officer

Smith noticed a vehicle that was driving behind him very slowly. It was later determined that

appellant was the driver of the vehicle. In an effort to see if the vehicle would catch up with him,

Officer Smith stopped fifteen feet before the stop line at a stoplight. The vehicle did not pass

Officer Smith’s cruiser and stayed behind the police cruiser and to the left. At that point, Officer

Smith rolled down the driver’s side window, stuck his head out, and asked appellant and the

passenger if they needed any help or were lost. The occupants indicated that “they were good.”

The vehicle soon passed Officer Smith. Officer Smith continued behind the vehicle “to

investigate a possible DUI.” 1

       Eventually, Officer Smith initiated a traffic stop of the vehicle using his vehicle’s

emergency lights and sirens. In response to the emergency lights and sirens, the vehicle came to

a stop in a parking lot of a 7-Eleven. Officer Smith approached the front driver’s side, where

appellant was seated, and Corporal Trainer approached the front passenger side of the vehicle,

where the other occupant was sitting. At that point, Officer Smith asked appellant for his license

and registration. Appellant did not respond at all. Officer Smith repeated his request. It appears

from the record that appellant also did not respond to the second request. While asking appellant

some basic questions, such as from where he was coming and to where he was headed, Officer

Smith was able to detect an odor of alcohol on appellant’s breath. Officer Smith then asked

appellant to remove the keys from the ignition and hand them to Officer Smith. Appellant did

not respond. Officer Smith repeated his request, at which point appellant removed the keys from

the ignition and “just kept them in his hand.”




       1
           The basis for the traffic stop is not challenged on appeal.
                                                   -2-
       Shortly after requesting the keys, Officer Smith heard the passenger say to appellant,

“Just go.” In an effort to prevent appellant from driving off, Officer Smith reached into the

vehicle from the front driver’s side to try to get the keys. Before Officer Smith could retrieve the

keys, however, appellant began to drive the vehicle away from the scene. As appellant was

driving away, both Officer Smith and Corporal Trainer were partially inside the vehicle.

According to Officer Smith, the “top part of me was in the vehicle” as appellant drove out of the

parking lot of the 7-Eleven. Officer Smith had been trying to prevent appellant from driving the

vehicle away, but was unable to immediately extract himself from the vehicle once it started

moving.

       Meanwhile, Corporal Trainer also reacted once appellant started to drive out of the

parking lot of the 7-Eleven. Just as appellant began to speed off, Corporal Trainer tried to open

the front passenger door. After finding that the door was locked, Corporal Trainer reached into

the vehicle in an attempt to unlock the door from the inside. Corporal Trainer explained that he

was trying to extract the passenger from the vehicle so that the passenger would not run off with

any potential evidence. With both arms in the vehicle, Corporal Trainer was trying to run

alongside the vehicle. Corporal Trainer testified that when his arms were in the vehicle, the

vehicle “went at a very high rate of speed . . . it made a lot of noise. A lot of unsafe maneuvers

consistent with a high rate of speed.” Corporal Trainer was able to keep up alongside the vehicle

for ten to twenty feet before he “fell to the ground face first.” He testified that he then “[s]lid

across the pavement a little bit.” Both officers were able to break free from the vehicle just as it

sped out of the parking lot at a high rate of speed, went over a curb, “flew up in the air,” and

“went flying up South Wyethe Street.” Throughout this encounter in the parking lot of the

7-Eleven, the emergency lights of the police cruiser remained on and the police cruiser remained

angled behind the vehicle.

                                                 -3-
                                            II. ANALYSIS

       Appellant’s assignment of error essentially challenges the sufficiency of the evidence to

support his felony eluding conviction. When considering the sufficiency of the evidence on

appeal, “a reviewing 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 (2003) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)).

“Viewing the evidence in the light most favorable to the Commonwealth, as we must since it was

the prevailing party in the trial court,” Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d

555, 574 (2004), “[w]e must instead ask whether ‘any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.’” Crowder, 41 Va. App. at 663, 588

S.E.2d at 387 (quoting Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447

(2003) (en banc)). See also Maxwell v. Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502

(2008). “This familiar standard gives full play to the responsibility of the trier of fact fairly to

resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from

basic facts to ultimate facts.” Jackson, 443 U.S. at 319. To the extent that this appeal presents a

question of statutory interpretation, this Court will review the statute de novo. See, e.g.,

Hamilton v. Commonwealth, 61 Va. App. 542, 548, 738 S.E.2d 525, 528 (2013) (citations

omitted).

       Code § 46.2-817(A), the misdemeanor eluding statute, provides, in relevant part, as

follows:

               Any person who, having received a visible signal from any
               law-enforcement officer to bring his motor vehicle to a stop, drives
               such motor vehicle in a willful and wanton disregard of such signal
               or who attempts to escape or elude such law-enforcement officer
               whether on foot, in the vehicle, or by any other means, is guilty of
               a Class 2 misdemeanor.



                                                 -4-
       By contrast, Code § 46.2-817(B), the felony eluding statute, provides, in relevant part, as

follows:

               Any person who, having received a visible or audible signal from
               any law-enforcement officer to bring his motor vehicle to a stop,
               drives such motor vehicle in a willful and wanton disregard of such
               signal so as to interfere with or endanger the operation of the
               law-enforcement vehicle or endanger a person is guilty of a Class 6
               felony.

       In this case, to determine whether sufficient evidence supports appellant’s felony eluding

conviction, we need only look to Code § 46.2-817(B). Appellant contends that because he

initially stopped by pulling the vehicle into the parking lot of the 7-Eleven, the fact that he

“subsequently placed the keys in the ignition and sped away does not trigger Section

46.2-817(B),” since “[s]ection (B) prohibits escaping or eluding police officers only in disregard

to a signal to stop a motor vehicle.” Appellant’s Br. at 5-6. He argues that his “post-stop

behavior matches the specific language of misdemeanor eluding within Section 46.2-817(A),” id.

at 6, because after stopping, he simply “attempt[ed] to escape or elude such law-enforcement

officer.” Code § 46.2-817(A). A stop followed by an “attempt[] to escape or elude such

law-enforcement officer” does not necessarily render the behavior a misdemeanor under Code

§ 46.2-817(A), however. Eluding a police officer by driving a vehicle “in a willful and wanton

disregard” of a signal to stop or eluding a police officer by “attempt[ing] to escape or elude such

law-enforcement officer” by foot or by a vehicle constitutes a misdemeanor offense only if the

disregard of the signal to stop does not “interfere with or endanger the operation of the

law-enforcement vehicle or endanger a person.” Code § 46.2-817(B). When the accused drives

a “motor vehicle in a willful and wanton disregard of [a] signal so as to interfere with or

endanger the operation of the law-enforcement vehicle or endanger a person, [he or she] is guilty

of a Class 6 felony.” Code § 46.2-817(B). Thus, a difference between misdemeanor eluding and

felony eluding is that the felony offense requires sufficient proof that the defendant’s behavior
                                                 -5-
“interfere[d] with or endanger[ed] the operation of the law-enforcement vehicle” or

“endanger[ed] a person . . . .” Code § 46.2-817(B).

       Here, there is overwhelming evidence to support appellant’s felony eluding conviction

under Code § 46.2-817(B). Pursuant to the plain language of Code § 46.2-817(B), 2 the

Commonwealth must prove the following elements beyond a reasonable doubt to support a

felony eluding conviction: (1) the accused received a visible or audible signal from a law

enforcement officer to bring the motor vehicle to a stop, (2) the accused drove the motor vehicle

in a willful and wanton disregard of the visible or audible signal from a law enforcement officer

to bring the motor vehicle to a stop, and (3) the accused drove the motor vehicle in a way that

interfered with or endangered the operation of the law enforcement vehicle or in a way that

endangered a person.

       Turning to the first element of felony eluding, a rational trier of fact could find beyond a

reasonable doubt that appellant received a visible signal from a law enforcement officer to bring

his motor vehicle to a stop. Throughout the encounter with Officer Smith and Corporal Trainer,

appellant received a number of visible and audible signals to stop. In order to initiate the traffic

stop, Officer Smith and Corporal Trainer used their emergency lights and sirens. Corporal

Trainer described those lights as follows:

               The lights on that vehicle were blue and white, and we also had a
               solid white take-down light, which is more of a light that
               illuminates the entire vehicle.



       2
          Appellant argues on brief that, because Code § 46.2-817 is ambiguous, the rule of lenity
should apply, and the statute must be interpreted in his favor. “[P]enal statutes must be strictly
construed according to the rule of lenity and, if the language of the statute permits two
‘reasonable but contradictory constructions,’ the statutory construction favorable to the accused
should be applied.” Blake v. Commonwealth, ___ Va. ___, ___, 764 S.E.2d 105, 110 (2014)
(quoting Wesley v. Commonwealth, 190 Va. 268, 276, 56 S.E.2d 362, 365 (1949)). Because
Code § 46.2-817 is not ambiguous – and is actually quite clear, the rule of lenity does not apply
in this case.
                                                 -6-
               The blue and white lights are strobe lights, and they obviously
               flash intermittently. The take-down light is in the center, and it
               illuminates with a brighter, white light. You know, a clear light.
               We also have the spotlight on the side and I believe [Officer
               Smith] used that as well.

The lights remained activated throughout the encounter in the parking lot of the 7-Eleven.

Officer Smith asked appellant to remove the keys and hand them to him. Once appellant started

to drive away from the parking lot of the 7-Eleven, Officer Smith and Corporal Trainer gave

additional visible signals to stop. Officer Smith actually reached into the vehicle in an effort to

retrieve the keys. As Officer Smith was attempting to retrieve the keys, Corporal Trainer was

attempting to unlock the passenger door in an effort to extract the passenger from the vehicle.

Furthermore, both officers were partially inside the vehicle as appellant was driving off, which is

certainly a visible signal that they wanted appellant to stop. Thus, a rational trier of fact could

undoubtedly find beyond a reasonable doubt that appellant received both visible and audible

signals to bring the motor vehicle to a stop.

       Regarding the second element of felony eluding, a rational trier of fact could find beyond

a reasonable doubt that appellant drove the motor vehicle in a willful and wanton disregard of

signals to stop. Appellant argues that, because he pulled over in the parking lot of the 7-Eleven

in response to the initial signal to stop, he cannot be found guilty of felony eluding. This

argument overlooks the evidence in the record that appellant certainly drove the motor vehicle in

a willful and wanton disregard of subsequent signals to stop. Despite the fact that Officer Smith

was reaching into the vehicle in an effort to retrieve the keys, despite the fact that Corporal

Trainer was also reaching into the vehicle in an effort to unlock the front passenger door, and

despite the fact that the emergency lights remained activated, appellant continued to drive the

vehicle out of the parking lot of the 7-Eleven, over the curb, and down a street at a high rate of




                                                 -7-
speed. Thus, a rational trier of fact could find beyond a reasonable doubt that appellant drove the

motor vehicle in a willful and wanton disregard of visible signals to stop.

       Finally, a rational trier of fact could find beyond a reasonable doubt that appellant’s

driving the vehicle in a willful and wanton disregard of the signals to stop endangered at least the

two officers in this case. The evidence establishes that, as appellant began to drive away from

the parking lot of the 7-Eleven, both Officer Smith and Corporal Trainer were actually still

partially inside of the vehicle. When Corporal Trainer was running alongside the vehicle with his

arms inside of it, the vehicle was moving at a “very high rate of speed” and, according to

Corporal Trainer, was making a number of “unsafe maneuvers.” After running alongside the

vehicle for ten to twenty feet, Corporal Trainer actually fell to the ground on his face and slid

across the parking lot’s pavement. Thus, a rational trier of fact could certainly find that appellant

endangered the two police officers in this case.

                                         III. CONCLUSION

       Viewing the evidence in the light most favorable to the Commonwealth, as we must since

the Commonwealth prevailed below, the trial court properly found appellant guilty of felony

eluding. Accordingly, we affirm appellant’s conviction for felony eluding under Code

§ 46.2-817(B).

                                                                                           Affirmed.




                                                -8-
