THE COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Bray and Humphreys 

Argued at Richmond, Virginia 

GEORGE TYRONE HUTCHINSON, a/k/a 

 STEVEN DAVIS, a/k/a CHRISTIAN BEANEY MEMORANDUM OPINION* BY 

 JUDGE ROBERT J. HUMPHREYS 

v. Record No. 1865-01-2 JULY 16, 2002 

 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Thomas N. Nance, Judge 

 Craig W. Stallard, Assistant Public Defender, 

for appellant. 

 Eugene Murphy, Assistant Attorney General 

(Jerry W. Kilgore, Attorney General, on 

brief), for appellee. 

 George Tyrone Hutchinson appeals his convictions, after a 

bench trial, for felony failure to appear, pursuant to Code 

§ 19.2-128, and for assault of a law enforcement officer, 

pursuant to Code § 18.2-57.1 Hutchinson contends there was 

insufficient evidence to sustain the convictions. For the 

reasons that follow, we affirm the judgment of the trial court. 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.

1

 Hutchinson was also charged for three drug offenses which 

were stricken by the court at trial and are therefore not at 

issue on appeal. 
I. BACKGROUND 

 On January 5, 2001, Officer Erlan Marshall of the Richmond 

City Police Department observed Hutchinson driving a car with an 

inspection rejection sticker on it. Accordingly, Marshall 

pulled Hutchinson over. Hutchinson stopped his car in a parking 

lot, next to a black Jeep. As Marshall walked to the driver's 

side window, he observed Hutchinson was shaking and appeared to 

be very nervous and agitated. Marshall also detected a strong 

odor of marijuana coming from the car. He asked to see 

Hutchinson's driver's license, and Hutchinson told him that he 

did not have any identification. He then asked Hutchinson to 

step out of the car and attempted to place him in handcuffs. 

 At that point, a struggle ensued. Marshall and Hutchinson 

were "struggling, bouncing off vehicles, fighting each other, in 

between vehicles as [Hutchinson] was attempting to get away from 

[Marshall]." Some items of Hutchinson's clothing fell to the 

ground during the struggle. Finally, "[Hutchinson] pushed off 

of [Marshall] in [Marshall's] chest area and ran." Marshall 

apprehended Hutchinson a few moments later, with the help of a 

bystander. Marshall had sustained a scratch and a bruise on the 

side of his face as a result of the struggle. 

After Hutchinson was taken to the police station, and after 

the officers had left the scene, a citizen called Officer Shane 

Waite and informed him that he should return to the scene and 

look under the Jeep that was parked next to Hutchinson's car. 

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Officer Waite returned and found a small bag under the Jeep 

containing marijuana, heroin and crack cocaine. 

Later that afternoon, felony warrants, including warrants 

for drug charges and a warrant for felony assault of a law 

enforcement officer, were issued for Hutchinson, setting the 

arraignment for January 8, 2001 at 9:00 a.m. The warrants state 

that Hutchinson was served by the sheriff that same day, 

January 5, 2001.2

An additional warrant was issued for Hutchinson on 

January 11, 2001, for felony failure to appear "in the Richmond 

General District Court after having been bonded or summoned to 

appear on a charge of [p]oss[sion] [of] [c]ocaine, [h]eroin, 

[m]arijuana[,] [and] intent[ional] [a]ssault [on a] [p]olice 

[o]fficer." Hutchinson was subsequently indicted for possession 

of cocaine with intent to distribute, possession of heroin with 

intent to distribute, possession of marijuana with intent to 

distribute and assault on a law enforcement officer. Hutchinson 

was also indicted for felony failure to appear, for his failure 

to appear in court on January 8, 2001. 

During the trial, the following dialogue took place between 

the court and Officer Marshall: 

 

2

 The warrants were actually issued in the name of Steven 

Davis. Hutchinson gave officers this false name upon his arrest 

and booking. It was later determined that "Steven Davis" was 

Hutchinson, and there is no issue on appeal concerning 

Hutchinson's identity. 

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Court: Officer, were you in court on 

January 8[, 2001]? 

Officer Marshall: No, sir. January 8 was 

the Monday following the arrest. I arrested 

[Hutchinson] on a Friday, and January 8, was 

the, I guess, it was the arraignment day or 

the day they come to court right after. I 

wasn't here . . . 

Just before the Commonwealth rested, the following colloquy took 

place between the court and the Commonwealth's Attorney: 

Court: I guess there was nobody there on 

the day of [January] 8th[, 2001], none of 

the officers –- 

Commonwealth's Attorney: No, Your Honor. 

No officers were there, it was just the 

arraignment. The Commonwealth would just 

ask the Court to take judicial notice that 

[Hutchinson] wasn't in court on that 

particular day, January 8. 

Court: All right. 

Hutchinson raised no objection to the Commonwealth's request. 

The Commonwealth presented no other evidence relating to the 

failure to appear charge. 

At the close of the Commonwealth's case, Hutchinson raised 

a motion to strike the evidence on each of the charges. With 

regard to the felony failure to appear charge, Hutchinson argued 

the Commonwealth "did not present evidence of a witness that the 

defendant was not present in court at that time, and that he was 

released on bond to appear on that date, and I don't think they 

have proven that." With regard to the assault charge, 

Hutchinson argued the Commonwealth failed to prove intent to 

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injure Officer Marshall. The court dismissed the drug charges, 

but denied the remaining motions. On the assault charge, the 

court found "[Hutchinson] intended to do what he needed to do to 

hurt [Officer Marshall] to get up so that he could throw his 

drugs under the Jeep." 

Hutchinson presented no evidence, but instead renewed his 

motions to strike, incorporating his previous arguments. The 

court found Hutchinson guilty of both charges. 

II. ANALYSIS 

On appeal, Hutchinson first argues there was insufficient 

evidence to sustain the conviction for failure to appear because 

the Commonwealth presented no evidence on the failure to appear 

charge and because the request for judicial notice was 

inadequate to establish the elements of the offense. 

"Judicial notice involves the admission of a fact in 

evidence without proof of that fact because it is commonly known 

from human experience."3 "A trial court may take judicial notice 

of those facts that are either (1) so 'generally known' within 

the jurisdiction or (2) so 'easily ascertainable' by reference 

to reliable sources that reasonably informed people in the 

 

3 O'Dell v. Commonwealth, 234 Va. 672, 696 n.7, 364 S.E.2d 

491, 505 n. 7 (1988). 

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community would not regard them as reasonably subject to 

dispute."4

Here, the trial court took judicial notice, without 

objection by Hutchinson, of the fact that Hutchinson failed to 

appear in court on January 8, 2001. Thus, Hutchinson's argument 

that the Commonwealth produced no evidence with respect to the 

felony failure to appear charge is without merit. Indeed, the 

judicial notice taken by the court was clearly a fact in 

evidence, which the court could rely upon in making its 

determination. 

Hutchinson's alternative argument, that even if the court 

took judicial notice of that fact, it was insufficient to 

establish the necessary elements of the offense, specifically, 

notice and intent, is barred from our consideration on appeal by 

Rule 5A:18. During trial, Hutchinson argued only that the 

Commonwealth failed to produce evidence of a witness that 

Hutchinson was not present in court and that he was released on 

bond to appear on that date. Hutchinson failed to present any 

argument concerning his contention that the Commonwealth failed to 

prove the elements of the offense. "[T]hough taking the same 

general position as in the trial court, an appellant may not rely 

on reasons which could have been but were not raised for the 

 

4 Taylor v. Commonwealth, 28 Va. App. 1, 7-8, 502 S.E.2d 

113, 116 (1998) (quoting Ryan v. Commonwealth, 219 Va. 439, 445, 

247 S.E.2d 698, 703 (1978)). 

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benefit of the lower court."5 We will not consider an argument on 

appeal which was not presented to the trial court.6 Accordingly, 

this issue is procedurally barred. 

Hutchinson next contends that the trial court erred in 

finding the evidence sufficient as a matter of law to support 

the assault charge, as the Commonwealth failed to prove 

Hutchinson intended to cause injury to Officer Marshall. 

It is fundamental that "where the sufficiency of the 

evidence is challenged on appeal, that evidence must be 

construed in the light most favorable to the Commonwealth, 

giving it all reasonable inferences fairly deducible therefrom."7 

In pertinent part, Code § 18.2-57(C) provides as follows: 

[I]f any person commits an assault or an 

assault and battery against another knowing 

or having reason to know that such other 

person is a law-enforcement officer as 

defined hereinafter . . . such person shall 

be guilty of a Class 6 felony, and, upon 

conviction, the sentence of such person 

shall include a mandatory, minimum term of 

confinement for six months which mandatory, 

 

5 West Alexandria Properties, Inc. v. First Virginia Mortg. 

& Real Estate Inv. Trust, 221 Va. 134, 138, 267 S.E.2d 149, 151 

(1980) (citations omitted). 

6

 Rule 5A:18; Buck v. Commonwealth, 247 Va. 449, 452-53, 443 

S.E.2d 414, 416 (1994) (issue not preserved where defendant gave 

different reason to support Batson claim on brief than at 

trial). 

7 Norman v. Commonwealth, 2 Va. App. 518, 520, 346 S.E.2d 

44, 45 (1986) (citing Higginbotham v. Commonwealth, 216 Va. 349, 

352, 218 S.E.2d 534, 537 (1975)). 

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minimum term shall not be suspended, in 

whole or in part. 

"Assault and battery, . . . requires proof of 'an overt act 

or an attempt . . . with force and violence, to do physical 

injury to the person of another,' 'whether from malice or from 

wantonness,' together with 'the actual infliction of corporal 

hurt on another . . . wil[l]fully or in anger.'"8 

The evidence here was sufficient for the trial judge to find 

beyond a reasonable doubt the elements of assault and battery. 

The trial judge expressly found that he disbelieved Hutchinson's 

testimony, finding that Hutchinson's intent was to do whatever he 

had to do, including cause injury to Marshall, in order to escape 

arrest. 

"Intent is the purpose formed in a person's mind which may, 

and often must, be inferred from the facts and circumstances in a 

particular case."9 "Circumstantial evidence is as competent and 

is entitled to as much weight as direct evidence, provided it is 

sufficiently convincing to exclude every reasonable hypothesis 

except that of guilt."10 

 

8 Boone v. Commonwealth, 14 Va. App. 130, 132, 415 S.E.2d 

250, 251 (1992) (citing Jones v. Commonwealth, 184 Va. 679, 

681-82, 36 S.E.2d 571, 572 (1946); Merritt v. Commonwealth, 164 

Va. 653, 658, 180 S.E. 395, 397 (1935); Wood v. Commonwealth, 

149 Va. 401, 404, 140 S.E. 114, 115 (1927)). 

9 Ridley v. Commonwealth, 219 Va. 834, 836, 252 S.E.2d 313, 

314 (1979). 

10 Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 

876 (1983). 

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When facts are equally susceptible to more 

than one interpretation, one which is 

consistent with the innocence of the 

accused, the trier of fact cannot 

arbitrarily adopt an inculpatory 

interpretation. The fact finder, however, 

is entitled to draw inferences from proved 

facts, so long as the inferences are 

reasonable and justified. Furthermore, the 

fact finder may infer that a person intends 

the immediate, direct, and necessary 

consequences of his voluntary acts. Thus, 

when the fact finder draws such inferences 

reasonably, not arbitrarily, they will be 

upheld.11

Thus, in struggling so violently when Marshall tried to 

handcuff him, Hutchinson clearly acted in a manner of reckless 

and wanton disregard for the safety of the officer. That 

Hutchinson acted with an intent to escape does not prevent a 

finding that he also acted with a second intent, to assault and, 

if necessary, to batter the officer in order to effect that 

escape.12 The trial court was entitled to "infer that 

[appellant] intend[ed] the immediate, direct, and necessary 

consequences of his voluntary acts."13 The direct consequence of 

Hutchinson's voluntary act of struggling was to inflict physical 

 

11 Moody v. Commonwealth, 28 Va. App. 702, 706-07, 508 

S.E.2d 354, 356 (1998) (citations omitted). 

12 See id. at 707-08, 508 S.E.2d at 356-57 (holding fact 

that perpetrator in stolen car was attempting to escape parking 

lot and motioned pedestrian out of his way did not preclude 

finding that perpetrator, who accelerated and did not swerve as 

he approached pedestrian, formed specific intent to run over 

pedestrian if he did not move). 

13 Id.

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injury upon Marshall. Accordingly, the circumstantial evidence 

was sufficient to prove Hutchinson acted with that intent. 

For the foregoing reasons, the judgment of the trial court 

is affirmed. 

Affirmed. 

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