COURT OF APPEALS OF VIRGINIA

Present: Judges McCl anahan, Petty and Powell Argued at Richmond, Virginia

MARCUS ATKINS, S/K/A MARCUS ANTWAN ATKINS OPINION BY v. Record No. 1502-08-2 JUDGE ELIZABETH A. McCLANAHAN JULY 14, 2009 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF PRINCE GEORGE COUNTY Samuel E. Campbell, Judge W. Edward Tomko, III (Novey and Tomko Law Firm, on brief), for appellant. Virginia B. Theisen, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Marcus Antwan Atkins appeals his convicti on for obstruction of ju stice in violation of Code § 18.2-460 and argues the evidence was insu fficient to support his conviction. We agree and reverse the judgment of the trial court. “On review of a challenge to its sufficiency, we view th e evidence in the light most favorable to the Commonwealth, the party prevailing be low, and grant to it a ll reasonable inferences fairly deducibl e therefrom.” Nolen v. Commonwealth , 53 Va. App. 593, 5 95, 673 S.E.2d 920, 921 (2009). “Sufficiency-of-the-evidence review in volves assessment by the courts of whether the

evidence adduced at trial coul d support any rational determination of guilt beyond a reasonable

doubt.” United States v. Powell , 469 U.S. 57, 67 (1984). See also McMillan v. Commonwealth , 277 Va. 11, 15, 671 S. E.2d 396, 397 (2009); Jones v. Commonwealth , 277 Va. 171, 182, 670 S.E.2d 727, 734 (2009); Clanton v. Commonwealth , 53 Va. App. 561, 566, 673 S.E.2d 904, 906 (2009) ( en banc ).- 2 - At approximately 2:30 a.m., Officer Matthew Bennett of the Prince George County Police, while on patrol, observed a vehicl e with a dangling license plate pa ss him on the road. When he turned around, he found the vehicl e parked in a local business park ing lot and observed the driver, Atkins, speaking with another offi cer, James Crowder. Officer Bennett “ran the license plate” of the vehicle through the DM V and determined the plate was stol en. He told Cr owder to detain

Atkins but Atkins ran into the wood s. Bennett was unable to find At kins at that time but discovered a handgun and marijuana in the vehi cle. Bennett located Atkins at 6:30 a.m. after he was found by Crowder walking down the si de of the road. Atkins told Bennett he was in the woods all night and did not want to talk to police. When asked his name, Atkins rep eatedly told Bennett his name was

Lamont Johnson. Bennett found a set of keys on Atkins’ person that opened the vehicle and a cell phone that fit the charger in the vehicle. After de termining his true identity , Bennett lear ned Atkins

was a convicted felon. Atkins wa s charged with, and convicted in a bench trial of, possession of a firearm by a convicted felon, possession of marijuana, and obstruc tion of justice.

Atkins contends the evidence was insufficient to convict him of vi olating Code § 18.2-460 1 since mere flight does not constit ute obstruction of justice. A c onviction for violation of subsection A requires proof of “acts clearly indicating an intenti on on the part of the accused to prevent the officer from perfor ming his duty, as to ‘obstruct’ ordinarily implies opposition or resistance by direct action. . . . It means to obstruct the officer himself not merely to oppose or impede the process with which the officer is armed.”

1 Code § 18.2-460(A) states: If any person without just cau se knowingly obstructs a judge, magistrate, justice, juror, attorney for the Commonwealth, witness or any law-enforcement officer in the performance of his duties as such or fails or refuses without ju st cause to cease such obstruction when requested to do so by such j udge, magistrate, justice, juror, attorney for the Commonwealth, witness, or law-enforcement officer, he shall be guilty of a Class 1 misdemeanor.- 3 - Ruckman v. Commonwealth , 28 Va. App. 428, 429, 505 S. E.2d 388, 389 (1998) (quoting Jones v.

Commonwealth , 141 Va. 471, 126 S.E. 74, 77 (1925)). “[O]bstruction of justice does not occur when a person fails to cooperate fu lly with an officer or when the person’s conduct merely renders

the officer’s task more diff icult” or “frustrat[es] [his or her] investigation.” Id. at 429, 431, 505 S.E.2d at 389, 390. Thus, “an accused’s hidi ng or seeking ‘to escape [an] officer by merely running away [is] not such an obstruc tion as the law contemplates.’” Id. at 430, 505 S.E. 2d at 389 (quoting

Jones , 141 Va. at 478, 126 S. E. at 76). Applying Ruckman , 2 we agree the eviden ce was insufficient to support a conviction of obstruction of justice under Code § 18.2-460(A). 3 The Commonwealth readily conced es that mere flight is insufficient to sustain a conviction for obstruction of justice under su bsection A, but argues Atkins rep eatedly provided a false name to Officer Bennett in violation of Code § 18.2-460(D). That subsection provides: Any person who knowingly and will fully makes any ma terially false statement or representation to a law- enforcement officer who is in the course of conducting an investigation of a crime by another is guilty of a Class 1 misdemeanor.

2 Under the interpanel accord doctrine, the “decision of one pane l ‘becomes a predicate for application of the doctrine of stare decisis ’ and cannot be overruled except by the Court of Appeals sitting en banc or by the Virginia Supreme Court.” Clinchfield Coal Co. v. Reed , 40 Va. App. 69, 73, 577 S.E.2d 538, 540 (2003) (citation omitted); see also Congdon v. Congdon , 40 Va. App. 255, 265, 578 S.E.2d 833, 838 (2003).

3 No evidence suggested that Atkins willf ully disobeyed a command by the officer to stop, and thus, we need not address case la w finding this circumstance dispositive. See, e.g., Thomas v. State , 606 S.E.2d 275, 277 (Ga. Ct. App. 2004) (affirming an obstruction conviction for “fleeing from [the officer] and re fusing to obey his commands to stop”); F.E.C. v. State , 559 So.2d 413, 414 (Fla. Dist. Ct. App. 1990) (stating an individual may be guilty of obstruction “if he flees while knowing of the officer’s intent to detain him and the officer is justified in making a stop”). See also United States v. Haye , 825 F.2d 32, 35 (4th Cir. 1987) (“By its very nature . . . a Terry stop is involuntary, and the suspect is not free to avoid it by flight.”); Clarke v. Commonwealth , 32 Va. App. 286, 299, 527 S.E.2d 484, 491 (2000) (same).- 4 - Code § 18.2-460(D) (emphasis added). 4 By its plain language, subsect ion D only applies to a false statement or representation made while the officer is investigating a “crime by another,” which necessarily means a crime committed by someone other than the person ma king the false statement or representation. Id. “When the language of a statute is unambiguous, courts are bound by the plain meaning of that language and may not assign a construction th at amounts to holding that the General Assembly did not mean wh at it actually has stated.” Williams v. Commonwealth , 265 Va. 268, 271, 576 S.E.2d 468, 470 (2003). Although the Commonwea lth argues the “record does not affirmatively show that [the police] were not investigating the involvement of anyone else,” the burden is on the Commonwealth “to prove every essential el ement of the offense beyond a reasonable doubt.” Bishop v.

Commonwealth , 275 Va. 9, 12, 654 S.E.2d 906, 908 (2008) (inter nal quotation marks and citation omitted). And the Commonw ealth only presented evidence that Atkins made fa lse statements regarding his identity while police were conducti ng an investigation of a crime by him – not

“another.” 5 Accordingly, the evidence was insufficient as a matter of law to establish beyond a reasonable doubt that Atkins was guilty of obstruc tion of justice, in violation of either Code § 18.2-460(A) or (D). For that reason, we reverse the judgment of the trial court.

Reversed.

4 The warrant of arrest charged Atkins with violation of Code § 18.2-460 without designation of a subsection. But it did add: “ knowingly obstruct a law-enforcement officer in the performance of duties, or fail or refuse to cease such obstruction when requested to do so.” Atkins did not argue the existence of a varian ce between the warrant and proof at trial.

5 There are Virginia statutes prohibiting the gi ving of and use of fals e identification in the course of a police investigation. See, e.g. , Code § 19.2-82.1 (giving false identity to law-enforcement officer) and Code § 18.2-186.3 (use of identity information of another person, whether false or fictitious, to avoid summons, arrest, prosecution or to impede a criminal investigation). However, the Commonwealth did not charge Atkins with violation of these statutes.