                               COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Frank and Senior Judge Overton
Argued at Chesapeake, Virginia


KERRY LENELL BOONE
                                                              MEMORANDUM OPINION* BY
v.     Record No. 0188-04-1                                   JUDGE JAMES W. BENTON, JR.
                                                                     MARCH 8, 2005
COMMONWEALTH OF VIRGINIA


                 FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
                               E. Preston Grissom, Judge

                 Richard L. Buyrn (Richard L. Buyrn, P.C., on brief), for appellant.

                 Steven A. Witmer, Assistant Attorney General (Jerry W. Kilgore,
                 Attorney General, on brief), for appellee.


       A jury convicted Kerry Lenell Boone of felony escape in violation of Code § 18.2-479(B).

He contends the evidence failed to prove the elements of the offense. We agree, and we reverse the

felony conviction.

                                                   I.

       Officer Steven Callow was driving by an apartment complex when he received a call at

6:45 a.m. to investigate a burglary at one of the apartment buildings. He immediately made several

turns and drove onto the street where the apartment building was located. About seventy-five to one

hundred feet from the common door that leads to the building’s four apartments he saw a man, later

identified as Kerry Lenell Boone, running across the parking lot. When Boone looked toward him

and began running faster, the officer pursued Boone in his vehicle with lights and siren activated. A

short distance away, the officer left his vehicle and chased Boone on foot. The officer saw Boone


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
hiding behind a bush, drew his gun, and ordered Boone to surrender. When Boone emerged, the

officer ordered Boone to the ground, put handcuffs on him, and told Boone he was under arrest for

breaking and entering.

       After another officer arrived, the officers walked Boone to the second officer’s vehicle,

where Officer Callow searched Boone for weapons. As the second officer opened the rear door for

Boone to enter the vehicle, Boone ran. The officers caught him about one hundred feet away.

Later, the officers obtained a warrant charging Boone with burglary.

       At the conclusion of the Commonwealth’s case-in-chief, Boone moved the judge strike the

evidence. He argued that a “formal charge had not been made” at the time of the arrest. The

prosecutor replied that Boone “was being charged . . . was in the act of being charged by the police

officers.” The trial judge denied the motion, ruling that the officer placed Boone in custody on a

charge of a felony by communicating to Boone that he was arresting him for breaking and entering

and by handcuffing him.

       Boone testified that his girlfriend called the police because someone was trying to enter her

apartment. He explained that he was running around the apartment seeking the burglar when the

officer came and that he was in pursuit of the burglar when the officer chased him. He testified the

officers accused him when they stopped him. He denied running from the officers after he was put

in handcuffs.

       At the conclusion of his testimony, Boone’s attorney renewed his motion to strike the

evidence. The judge denied the motion. The jury then convicted Boone of felony escape in

violation of Code § 18.2-479(B).

                                                 II.

       Boone contends that an arrest for a felony is not a “charge of a felony” as required by Code

§ 18.2-479(B). He argues that “the element that he is being held on a charge or a conviction of a

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felony is in dispute.” The Commonwealth responds that the term “charge” means merely “an

accusation.”

        Code § 18.2-479 provides, in pertinent part, as follows:

                   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 or by setting fire to the jail, he shall be
                guilty of a Class 6 felony.

(Emphasis added).

        In Johnson v. Commonwealth, 21 Va. App. 102, 462 S.E.2d 125 (1995), we interpreted a

similar statute, which provides that “if any person lawfully in the custody of any police officer

on a charge of criminal offense escapes from such custody by force or violence, he shall be

guilty of a Class 6 felony.” Code § 18.2-478. There, a police officer drew his gun and left

Johnson “in the passenger’s seat of the car surrounded by several police officers.” Johnson, 21

Va. App. at 108, 462 S.E.2d at 128. Johnson “was in custody at that point” on an outstanding

bench warrant, id., and then he escaped. At trial on an indictment charging a violation of Code

§ 18.2-478, the trial judge admitted in evidence the bench warrant, which “commanded [his]

arrest . . . for his failure to appear . . . for disposition, the original charges being 2 counts of

robbery . . . and 1 count of use of a firearm in the commission of a robbery.” Johnson, 21

Va. App. at 105, 462 S.E.2d at 126. We rejected Johnson’s argument that the trial judge erred,

and we noted that the Commonwealth had to prove the “statutory element that Johnson was in

custody ‘on a charge of criminal offense.’” Id. at 106, 462 S.E.2d at 127. We explained that

“the Commonwealth introduced a bench warrant to prove Johnson was wanted for a criminal

offense and was subject to arrest for failure to appear for sentencing in relation to a felony

conviction.” Id. (emphasis added). In other words, prior to Johnson’s escape from custody a

formal criminal proceeding already had occurred, resulting in his felony conviction. Thus, we

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held that “the existence of the warrant for [Johnson’s] arrest was relevant to prove whether he

was in lawful custody and evidence of the nature of the charges was relevant to prove . . .

[Johnson] was being arrested on criminal charges.” Id. at 107, 462 S.E.2d at 127.

       Recently, in Coles v. Commonwealth, 44 Va. App. 549, 605 S.E.2d 784 (2004), we again

addressed Code § 18.2-478. There, a police officer detained Coles at gunpoint while Coles was

in a stolen car and “Coles’s hands were in a surrender position.” 44 Va. App. at 533, 605 S.E.2d

at 785. We rejected the Commonwealth’s suggestion “that we replace the words ‘on a charge of

criminal offense’ with ‘on probable cause that a criminal offense has been committed.’” Id. at

557, 605 S.E.2d at 788. In so doing, we relied in part on the following well established meaning

of a criminal charge.

               “A criminal charge, strictly speaking, exists only when a formal
               written complaint has been made against the accused, and a
               prosecution initiated. It is true the popular understanding of the
               term is ‘accusation,’ and it is freely used with reference to all
               accusations, whether oral, in the newspapers, or otherwise; but, in
               legal phraseology, it is properly limited to such accusations as have
               taken shape in a prosecution. In the eyes of the law, a person is
               charged with crime only when he is called upon in a legal
               proceeding to answer to such a charge.”

Id. at 558, 605 S.E.2d at 788 (quoting United States v. Patterson, 150 U.S. 65, 68 (1893)). We

reasoned that “‘charge’ is similarly defined by Black’s Law Dictionary 248 (8th ed. 2004) as a

‘formal accusation of an offense as a preliminary step to prosecution.’” Coles, 44 Va. App. at

558, 605 S.E.2d at 788. In view of these well established definitions, we held that “[i]t would

. . . strain the ordinary meaning of the language used in [the statute] to interpret those situations

where a ‘formal accusation’ of a ‘criminal offense’ exists as encompassing those where a police

officer has ‘probable cause’ to believe a criminal offense has been committed.” Id. at 558-59,

605 S.E.2d at 788.




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       We perceive no rational distinction between the terms “lawfully in the custody of any

police officer on a charge of criminal offense,” the elements of Code § 18.2-478, and the terms

“lawfully in the custody . . . of any law enforcement officer on a charge . . . of a felony,” the

elements of Code § 18.2-479(B). Thus, we hold that the rationale and the holding of Coles are

binding precedent for the resolution of this case. “Probable cause to arrest will not satisfy [the]

element of the offense,” Coles, 44 Va. App. at 562, 605 S.E.2d at 790, which requires the

Commonwealth to prove beyond a reasonable doubt that Boone was “in . . . custody . . . on a

charge . . . of a felony.” Code § 18.2-479(B). As we have held, albeit in a different context, an

“[a]rrest is not a ‘formal charge’ that constitutes the initiation of adversarial proceedings.”

Tipton v. Commonwealth, 18 Va. App. 832, 835, 447 S.E.2d 539, 541 (1994).

       Significantly, the legislature enacted a statute in 2003 to cover the type of escape proved

here. Code § 18.2-479.1 provides as follows:

               A. Any person who intentionally prevents or attempts to prevent a
               law-enforcement officer from lawfully arresting him, with or
               without a warrant, is guilty of a Class 1 misdemeanor.

               B. For purposes of this section, intentionally preventing or
               attempting to prevent a lawful arrest means fleeing from a
               law-enforcement officer when (i) the officer applies physical force
               to the person, or (ii) the officer communicates to the person that he
               is under arrest and (a) the officer has the legal authority and the
               immediate physical ability to place the person under arrest, and
               (b) a reasonable person who receives such communication knows
               or should know that he is not free to leave.

This statute now covers the circumstance proved in this case because it proscribes “attempting to

prevent a lawful arrest [by] fleeing from a law enforcement officer when . . . the officer

communicates to the person that he is under arrest.” Id. Code § 18.2-479.1 was not in effect,

however, when Boone fled.

       For these reasons, we reverse the conviction.

                                                                                             Reversed.

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