Patrick Franklin Graves, Jr. v. Commonwealth of Virginia, 780 S.E.2d 904

Officer Franz stopped a truck for a defective brake light, activated lights and spotlights, and as he prepared to exit his patrol car the truck made an illegal U-turn and sped away; Franz observed the driver’s face and later identified Patrick Graves as the driver.
Franz pursued the truck at high speed (up to ~90 mph); the pursuit was terminated per policy for safety.
Graves was charged with felony eluding under Va. Code § 46.2-817; at trial he disputed that he was the driver, offering alibi testimony from himself, his mother, and his fiancée.
The trial court gave the Commonwealth’s standard “flight” jury instruction (flight is a circumstance the jury may consider), over Graves’s objection that flight was the crime charged and the instruction would confuse the jury.
The jury convicted Graves; he was sentenced to six months in jail and a $1,000 fine.
On appeal Graves argued the flight instruction was improper because the act of flight was the very element the Commonwealth had to prove; the Court of Appeals agreed the instruction was erroneous but held the error was harmless.

Issue	Plaintiff's Argument (Commonwealth)	Defendant's Argument (Graves)	Held
Whether giving the model "flight" instruction was proper when the charged offense is eluding (flight is the crime)	Instruction correctly states law on flight and may be given whenever alleged flight is at issue	Instruction was improper and confusing because the flight at issue is the criminal act the Commonwealth must prove, so treating it as merely a circumstance misstates law	Court held the instruction was an abuse of discretion because it singled out and potentially confused the jurors about an element of the offense
Whether the erroneous instruction requires reversal	The instruction was proper / or harmless if error	Instruction prejudiced Graves because it muddled the burden on an element of the offense	Court held the error was non-constitutional and harmless given overwhelming evidence that Graves was the driver and the jury’s rejection of his alibi

Turman v. Commonwealth, 276 Va. 558 (explains flight is a circumstance to be considered and distinguishes flight after a crime from the crime itself)
Anderson v. Commonwealth, 100 Va. 860 (early statement that attempt to escape is circumstantial evidence for jury)
Bowie v. Commonwealth, 184 Va. 381 (flight as evidence to be weighed by jury)
Cooper v. Commonwealth, 277 Va. 377 (standard of review for jury instructions)
Morgan v. Commonwealth, 50 Va. App. 120 (instruction must be correct statement of law)
Terry v. Commonwealth, 5 Va. App. 167 (instruction may not single out part of evidence for emphasis)
Kotteakos v. United States, 328 U.S. 750 (harmless-error standard — effect on jury verdict)