854 S.E.2d 660
Va. Ct. App.2021Background
- Chesapeake officers Quindara and Echevarria, in uniform, responded to a loud-party call and learned via VCIN/NCIC that Lopez was the subject of a capias issued under Code § 18.2-456 (criminal contempt for failure to comply with community supervision tied to an underlying assault-and-battery matter).
- Officers told Lopez he was under arrest and attempted to place him in custody; Lopez became disorderly, shoved Echevarria, ran toward his home, and was tased in the back as Echevarria pursued him.
- Inside the home a violent struggle ensued: Lopez grabbed at Echevarria’s stun weapon, lunged, shoved and grabbed the officer, blocked a baton strike, caused Echevarria to fall and drop his baton, retrieved the baton, and stood over the officer until Quindara intervened and the officers secured Lopez.
- Lopez was treated, taken to jail, and served with the capias; the Commonwealth introduced the capias at trial to prove he was charged with a criminal offense when first detained.
- The trial court convicted Lopez of escape (Code § 18.2-478), disarming/attempted disarming (Code § 18.2-57.02), and assault and battery on a law-enforcement officer (Code § 18.2-57); Lopez appealed, arguing (1) the capias did not constitute a "charge of criminal offense," (2) insufficient proof of intent to impede for the disarming counts, and (3) insufficient proof of an offensive touching for battery.
Issues
| Issue | Plaintiff's Argument (Lopez) | Defendant's Argument (Commonwealth) | Held |
|---|---|---|---|
| Whether a capias for contempt under Code § 18.2-456 is a "charge of criminal offense" for Code § 18.2-478 (escape) | Contempt capias is not a criminal charge and therefore does not satisfy § 18.2-478 | The capias charged violation of a criminal statute (Title 18.2) linked to underlying criminal proceedings; a written capias is a formal charge | Court held the capias under § 18.2-456 is a "charge of criminal offense" within § 18.2-478; escape conviction affirmed |
| Whether evidence proved Lopez had intent to impede an officer when grabbing/depriving weapons (disarming/attempted disarming) | Lopez lacked the requisite intent; he was retreating or defending himself, not seeking to impede duties | Lopez’s words, repeated shoves, grabs of stun weapon and baton, and violent conduct support an intent to impede the arrest | Court held the evidence sufficiently proved intent to impede; disarming convictions affirmed |
| Whether Lopez committed an assault and battery on the officer (offensive touching) | Video and circumstances show Lopez did not take affirmative action causing an offensive touching; any contact was defensive or unavoidable | Officer testimony and video show Lopez shoved, grabbed head/shoulders, and caused the officer to fall — objectively offensive contact | Court held the evidence supported unlawful touching and battery; assault conviction affirmed |
Key Cases Cited
- Hubbard v. Commonwealth, 276 Va. 292 (2008) (interprets "on a charge of criminal offense" to require a written charge upon which a court could act)
- Johnson v. Commonwealth, 21 Va. App. 102 (1995) (warrant evidence can show defendant was in custody on a criminal charge for § 18.2-478 purposes)
- Alston v. Commonwealth, 274 Va. 759 (2007) (apply plain-meaning construction to unambiguous statutory text)
- Wells v. Commonwealth, 60 Va. App. 111 (2012) (intent to impede may be inferred from words or conduct of the accused)
- Adams v. Commonwealth, 33 Va. App. 463 (2000) (battery is an unlawful touching; touching defined by objective offensiveness and physical consequence)
- Kelley v. Commonwealth, 69 Va. App. 617 (2019) (trial court's credibility findings on intent/witness testimony are entitled to deference)
- Bowman v. Commonwealth, 290 Va. 492 (2015) (standard for appellate review of sufficiency of the evidence)