COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Baker, Benton, Coleman, 

 Koontz,* Willis, Elder, Bray and Fitzpatrick 

JOSEPH R. CASTELL 

v. Record No. 1866-93-4 OPINION BY 

 JUDGE JOHANNA L. FITZPATRICK 

COMMONWEALTH OF VIRGINIA SEPTEMBER 12, 1995 

UPON A REHEARING EN BANC FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Rosemarie Annunziata, Judge 

 Dwight F. Jones, Assistant Public Defender (Steven T. 

Webster, Deputy Public Defender, on brief), for appellant. 

 Linwood T. Wells, Jr., Assistant Attorney General (James S. 

Gilmore, III, Attorney General, on brief), for appellee. 

 On February 14, 1995, a panel of this Court reversed the 

conviction of Joseph R. Castell (appellant) for escape from the 

custody of a law enforcement officer without the use of force or 

violence. The panel held that, "although the defendant may have 

fled or resisted arrest, he was never 'lawfully in the custody' 

of the officer.'" Castell v. Commonwealth, 19 Va. App. 615, 617, 

454 S.E.2d 16, 18 (1995). The Commonwealth's petition for 

rehearing en banc was granted on March 31, 1995, and the mandate 

of the February 14, 1995 opinion was stayed. Upon a rehearing en

banc on June 15, 1995, we affirm the judgment of the trial court 

and vacate the mandate of the February 14, 1995 panel opinion. 

 On May 16, 1993, two uniformed police officers went to 

 

 *Justice Koontz participated in the hearing and decision of 

this case prior to his investiture as a Justice of the Supreme 

Court of Virginia. 
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appellant's house to arrest him on a warrant for grand larceny. 

Appellant's mother answered the door and went to get him. A 

minute later, appellant appeared and stood about three feet from 

the officers. One officer asked appellant identifying questions 

and told him that he had a warrant for appellant's arrest. 

Appellant asked why the warrant had been issued. The officer 

approached appellant, reaching for his handcuffs with his left 

hand and reaching to grab appellant's arm with his right hand. 

He was within one inch of appellant when appellant turned and 

ran. Appellant was later found and arrested. 

 At the conclusion of the Commonwealth's evidence, appellant 

moved to strike, arguing that the Commonwealth had failed to 

prove that he was in custody before he ran. Appellant and his 

mother testified in his defense, and appellant moved to strike on 

the same ground. Appellant was convicted in a jury trial of 

escape in violation of Code § 18.2-479(B). 

 Code § 18.2-479(B) provides as follows: 

 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). While the issue of what is "custody" for the 

purposes of Code § 18.2-479(B) has not been specifically 

addressed in the Commonwealth, several federal cases interpreting 
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the federal escape statute provide guidance.1

 See, e.g., United 

States v. Keller, 912 F.2d 1058, 1060 (9th Cir. 1990) (holding 

that a defendant who failed to report to his place of confinement 

at the appointed time escaped from custody), cert. denied, 498 

U.S. 1095 (1991); United States v. Peterson, 592 F.2d 1035, 1037 

(9th Cir. 1979) (holding that a defendant who failed to report to 

the United States Marshal immediately after sentencing escaped 

from custody); Murphy v. United States, 481 F.2d 57, 60-61 (8th 

Cir. 1973) (holding that a prisoner in jail escaped from custody 

even though he was not in the actual physical custody of the 

arresting officer). 

 "[C]ustody need not involve direct physical restraint." 

Keller, 912 F.2d at 1059. In Tennant v. United States, 407 F.2d 

52 (9th Cir. 1969), the Ninth Circuit Court of Appeals held that 

"[i]f appellant heard and understood the oral communication that 

he was 'under arrest,' the authorized detention became 'custody' 

within the meaning of the statute in question." Id. at 53. In 

Tennant, a customs inspector told the driver of a car suspected 

 

 1The federal escape statute, 18 U.S.C. § 751, provides as 

follows: 

 (a) Whoever escapes or attempts to escape . . . 

from the custody of an officer or employee of the 

United States pursuant to lawful arrest, shall, if 

the custody . . . is by virtue of an arrest on a 

charge of felony, or conviction of any offense, be 

fined under this title or imprisoned not more than 

five years, or both . . . . 

(Emphasis added). 
 4 

of carrying drugs that he was under arrest. The driver fled and 

was later convicted of escape from the custody of a federal 

officer under 18 U.S.C. § 751(a). Id. Thus, if "[a] person of 

ordinary intelligence and understanding would know that he was 

not free to leave," then he would be in "custody" under 18 U.S.C. 

§ 751(a). Peterson, 592 F.2d at 1037. 

 We hold that, for the purposes of Code § 18.2-479(B), 

custody does not require direct physical restraint. In this 

case, the record established that the uniformed police officer 

told appellant that he had a warrant for his arrest. The officer 

reached for his handcuffs with one hand and reached to grab 

appellant's arm with the other hand. Under these circumstances, 

a person of ordinary intelligence and understanding would know 

that he was not free to leave and was "lawfully in the custody" 

of the police officer. Appellant understood that he was not free 

to leave, and the officers had the immediate ability to place 

appellant under formal arrest. 

 Accordingly, the decision of the trial court is affirmed. 

 Affirmed. 
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Benton, J., with whom Koontz, J., joins, dissenting. 

 For the reasons stated in the panel's majority opinion, see

Castell v. Commonwealth, 19 Va. App. 615, 454 S.E.2d 16 (1995), I 

would hold that Castell was never in the officer's custody and, 

thus, could not have violated Code § 18.2-479. 

 The federal cases upon which the majority relies have no 

bearing upon the interpretation to be given the Virginia statute. 

 Those federal cases are based upon an application of their facts 

to a federal statute that is significantly dissimilar to Code 

§ 18.2-479. The federal statute states as follows: 

 Whoever escapes or attempts to escape from 

the custody of the Attorney General or his 

authorized representative, or from any 

institution or facility in which he is 

confined by direction of the Attorney 

General, or from any custody under or by 

virtue of any process issued under the laws 

of the United States by any court, judge, or 

commissioner, or from the custody of an 

officer or employee of the United States 

pursuant to lawful arrest, shall, if the 

custody or confinement is by virtue of an 

arrest on a charge of felony, or conviction 

of any offense, be fined . . . or 

imprisoned. . . . 

18 U.S.C. § 751(a). 

 A review of the cases highlights the reasons their holdings 

are inapplicable. In United States v. Keller, 912 F.2d 1058 (9th 

Cir. 1990), cert. denied, 498 U.S. 1095 (1991), the defendant was 

sentenced to jail by a federal district judge and ordered to 

report to the jail by 4:00 p.m., August 10, 1987. Id. at 1059. 

In holding that the defendant violated 18 U.S.C. § 751(a) when he 
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failed to report to the jail, the Court stated that "[t]he 

custody that matured at 4:00 p.m. on August 10 was imposed 'by 

virtue of . . . process issued under the laws of the United 

States by [a] court, [or] judge,' as specified by section 

751(a)." Id. at 1060 (footnote omitted). Thus, the Court 

applied the specific language of the federal statute in ruling 

that the custody from which the defendant escaped was the 

restraint which was statutorily created by virtue of the judge's 

sentencing order. 

 Likewise, in United States v. Peterson, 592 F.2d 1035 (9th 

Cir. 1979), the defendant was indicted and tried for "escape 

. . . from any custody under or by virtue of any process." Id.

at 1035 n.1. The facts proved that when the defendant escaped, 

he had been sentenced by the district court judge and ordered to 

"commence his sentence now." Id. at 1036. Applying the language 

of the statute, the Court ruled that the convicted defendant "was 

in 'custody under or by virtue of any process issued under the 

laws of the United States by [a] court, [or] judge'" when he 

failed to surrender for imprisonment after having been ordered to 

do so. Id. at 1037. 

 In Murphy v. United States, 481 F.2d 57 (8th Cir. 1973), the 

evidence proved that the defendant had been arrested and "lodged 

in the Fort Totten jail, a facility owned by the United States," 

from which he escaped. Id. at 60. In upholding the conviction, 

the Court merely ruled that custody pursuant to 18 U.S.C. 
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§ 751(a) included confinement in a penal institution. Id. at 61. 

 The facts in Tennant v. United States, 407 F.2d 52 (9th Cir. 

1969), proved that the defendant was stopped at a border 

checkpoint when officers found marijuana in his automobile. 

After an officer "'told [defendant] that he was under arrest for 

possession of marijuana,'" the defendant escaped. Id. at 53. 

Applying the proscription of the statute that penalizes "escape 

. . . from the custody of an officer . . . of the United States 

pursuant to lawful arrest," 18 U.S.C. 751(a) (emphasis added), 

the Court held that when the officer told the defendant he was 

under arrest, the necessary, specific statutory requirement for 

custody had been met. 407 F.2d at 53. 

 In applying 18 U.S.C. § 751(a), these decisions concluded 

that Congress statutorily defined custody in a manner that does 

not, in all instances require proof of physical restraint. 

However, those decisions provide no support for the majority's 

conclusion that Code § 18.2-479(B) must be read to define custody 

as restraint that occurs by virtue of being informed that an 

officer has a warrant for arrest. The Virginia statute provides, 

in pertinent part, as follows: 

 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. 

Id. In resolving the question of the meaning of custody, "we are 
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guided by the fundamental principle of statutory construction 

that penal statutes '"must be strictly construed against the 

state and limited in application to cases falling clearly within 

the language of the statute."'" Simmons v. Commonwealth, 16 Va. 

App. 621, 624, 431 S.E.2d 335, 336 (1993) (citations omitted). 

 The Supreme Court of Virginia has held that an accused is 

not seized when the accused fails to submit to an officer's show 

of authority. Woodson v. Commonwealth, 245 Va. 401, 405-06, 429 

S.E.2d 27, 29 (1993). Moreover, Code § 19.2-77 supports the 

interpretation of the statute that equates custody with physical 

control. Code § 19.2-77 states as follows: 

 Whenever a person in the custody of an 

officer shall escape or whenever a person 

shall flee from an officer attempting to 

arrest him, such officer, with or without a 

warrant, may pursue such a person anywhere in 

the Commonwealth and, when actually in close 

pursuit, may arrest him wherever he is found. 

 The legislature has made a distinction between those 

situations in which an accused is "in the custody of an officer" 

and those in which an officer is "attempting to arrest him." 

This distinction requires a narrow reading of "custody" in Code 

§ 18.2-479(B) because "[s]tatutes which are not inconsistent with 

one another, and which relate to the same subject matter, are in

pari materia, and should be construed together; and effect should 

be given to them all, although they contain no reference to one 

another, and were passed at different times." Prillaman v. 

Commonwealth, 199 Va. 401, 406, 100 S.E.2d 4 (1957) (quoting 
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Mitchell v. Witt, 98 Va. 459, 461, 36 S.E. 528, 528 (1900)). 

 In this case, the officer neither physically touched Castell 

nor exerted control over him. Furthermore, Castell did not 

submit to the officer's show of authority. The narrow meaning of 

"custody" in this statute requires either physical touching or 

control. "An accused is entitled to the benefit of a reasonable 

doubt in the construction of a penal statute just as [the 

accused] is in questions of fact." Berry v. City of Chesapeake, 

209 Va. 525, 526, 165 S.E.2d 291, 292 (1969). 

 Because the Commonwealth's evidence showed that Castell was 

not in lawful custody at the time he ran, the evidence is 

insufficient to support the judgment of conviction. Accordingly, 

I would reverse the conviction.