COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Benton and Elder 

Argued at Richmond, Virginia 

WILLIE J. HENRY, S/K/A 

 WILLIE JEROME HENRY 

 OPINION BY 

v. Record No. 0246-94-2 CHIEF JUDGE NORMAN K. MOON 

 OCTOBER 10, 1995 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF HALIFAX COUNTY 

William L. Wellons, Judge 

 Buddy A. Ward, Public Defender (Office of the 

Public Defender, on brief), for appellant. 

 Richard B. Smith, Assistant Attorney General

 (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Willie Jerome Henry ("Henry"), who was convicted in general 

district court of assaulting an officer and obstructing justice 

in violation of Code §§ 18.2-57.1 and 18.2-460, respectively, 

appeals a subsequent circuit court conviction of escaping from a 

police officer in violation of Code § 18.2-478. Henry argues 

that the evidence was insufficient to convict him of escape, and 

that his misdemeanor convictions in general district court bar on 

double jeopardy grounds his circuit court conviction under Code 

§ 18.2-478. Because assault of an officer is not a lesser 

included offense of escape from a police officer by use of force 

or violence under Code § 18.2-478 and because Henry's act of 

obstructing justice was a separate and distinct act from his 

escape, which the Commonwealth's evidence supported, we affirm 

Henry's conviction. 

 The Commonwealth's evidence showed, in pertinent part, that 
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law-enforcement officers, who had a federal indictment for drug 

trafficking, came to Henry's house to arrest him. A woman 

answered the door and said that Henry was getting dressed and 

would be out soon. A few minutes later, Henry ran out the back 

door into the woods. 

 The officers pursued Henry through the woods and eventually 

caught up with him sitting beside a creek. One officer drew his 

gun, advised Henry not to move, and informed him that he was 

under arrest. The officer held Henry at gunpoint for about 

thirty seconds while he approached him, and then grabbed Henry by 

the arm. At this point, Henry struck the officer, shouted "____ 

you, you can't shoot me," and fled. Later, the officers 

successfully apprehended Henry after a brief scuffle. 

I. Sufficiency of the Evidence 

 An essential element of the escape charge is that the 

defendant escaped from "lawful custody." Code § 18.2-478. Thus, 

we must determine whether sufficient evidence proved Henry was in 

police custody when he fled from the officers. We held in 

Castell v. Commonwealth, __ Va. App. ___, ___ S.E.2d ___ (Sept. 

12, 1995) (en banc), that a person may escape from the "custody 

of an officer" even though he is not in direct physical 

restraint. Although Castell was construing Code § 18.2-479(B),1

 

 1 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. 
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the language of the two sections is not significantly different. 

 Therefore, we hold that Castell controls the issue in this case. 

 From the evidence presented, the trial judge could have 

found beyond a reasonable doubt that Henry submitted to the show 

of authority for thirty seconds while being held at gunpoint 

before he fled. In addition, Henry escaped after the officer had 

exercised actual physical force on Henry by grabbing Henry's arm. 

 Since Henry struck the officer when he fled, the evidence was 

sufficient to prove Henry escaped from custody of the law 

enforcement officer by use of force or violence. 

II. Double Jeopardy 

A. Obstruction of Justice. 

 Under Blockburger, the "applicable rule is that where the 

same act or transaction constitutes a violation of two distinct 

statutory provisions, the test to be applied to determine whether 

there are two offenses or only one, is whether each provision 

requires proof of a fact which the other does not." Hill v. 

Commonwealth, 2 Va. App. 683, 705-06, 347 S.E.2d 913, 926 (1986) 

(quoting Blockburger v. United States, 284 U.S. 299, 304 (1932)). 

"The test of whether there are separate acts sustaining several 

offenses `is whether the same evidence is required to sustain 

them.'" Treu v. Commonwealth, 12 Va. App. 996, 997, 406 S.E.2d 

676, 677 (1991) (quoting Estes v. Commonwealth, 212 Va. 23, 24, 

181 S.E.2d 622, 624 (1971)). Two crimes, even though similar 

because committed by the same criminal agent during a continuing 

course of action against the same victims, are not committed by 
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the same act if not simultaneously committed. Jones v. 

Commonwealth, 218 Va. 757, 761, 240 S.E.2d 658, 661, cert.

denied, 435 U.S. 909 (1978) (theft of money and theft of 

automobile during robbery of motel).2

 

 2 While Treu v. Commonwealth and Jones v. Commonwealth, were 

cases decided under Code § 19.2-294 rather than the double 

jeopardy clause, the analysis for what constitutes the same act or 

transaction is the same. 
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 In this case, the "same act" did not comprise both the 

charge of escape under Code § 18.2-478 and obstructing justice 

under Code § 18.2-460. The act which comprised Henry's escape 

occurred during the officer's second encounter with Henry when he 

struck the officer and fled after he was in custody on the creek 

bank. After his escape, during a third encounter, Henry 

obstructed justice by impeding the officers in their attempt to 

regain custody of him when he struggled with the officers.3

 

While the two charges grew out of Henry's continuous course of 

action, the acts forming the basis for the charges were not 

committed simultaneously. Each crime was proved without 

resorting to evidence necessary to prove the other charge. 

Therefore, the Commonwealth's prosecution of Henry for both 

escape and obstructing justice was not barred on double jeopardy 

grounds. 

B. Assault 

 However, the assault charge under Code § 18.2-57.1 did stem 

from the same act. Thus, we must look at the two offenses 

charged for the same act under the Blockburger test. "[I]n 

applying this test, the two offenses are to be examined in the 

abstract, rather than with reference to the facts of the 

particular case under review." Blythe v. Commonwealth, 222 Va. 

722, 726, 284 S.E.2d 796, 798 (1981). 

 

 3 Because we hold that the officer's third confrontation with 

Henry constituted an obstruction of justice, we do not determine 

whether Henry obstructed justice when he initially fled from the 

officers when they arrived at Henry's house to take him into 

custody on the indictment. 
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 It is clear that the crime of assault against a 

law-enforcement officer under Code § 18.2-57.1 does not contain 

the element of escape, as is required for a conviction under Code 

§ 18.2-478. What we must determine, therefore, is whether the 

crime charged under Code § 18.2-57.1 contains an element not 

contained in Code § 18.2-478. We must determine whether every 

escape from the custody of any police officer by force or 

violence necessarily includes proof of all of the elements 

necessary to sustain an assault conviction. See Kauffman v. 

Commonwealth, 8 Va. App. 400, 409, 382 S.E.2d 279, 283 (1989). 

To prove the crime of escape by use of force or violence under 

Code § 18.2-478, the Commonwealth must prove beyond a reasonable 

doubt: (1) that the accused was in lawful custody; (2) of "any 

police officer"; (3) "on a charge of [a] criminal offense"; and 

(4) that by the use of force or violence he left such custody 

without lawful permission. 

 Henry argues that every use of "force or violence" during an 

escape constitutes the crime of assault. We disagree. "It is a 

basic rule of statutory construction that a word in a statute is 

to be given its everyday, ordinary meaning unless the word is a 

word of art." Stein v. Commonwealth, 12 Va. App. 65, 69, 402 

S.E.2d 238, 241 (1991). The word "force" means "power 

dynamically considered [or] strength directed to an end." 

Commonly, the word "occurs in such connections as to show that 

unlawful or wrongful action is meant; e.g. forcible entry." 

Black's Law Dictionary 644 (6th ed. 1990). "Violence" means an 
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"exertion of any physical force so as to injure or abuse (as in 

warfare or effecting entrance into a house)," Webster's Third New 

International Dictionary 2554 (1981), or an "[u]njust or 

unwarranted exercise of force, usually with the accompaniment of 

vehemence, outrage or fury." Black's Law Dictionary 1570 (6th 

ed. 1990). Thus, an accused can be convicted of escaping from an 

officer by using force or violence not directed at the officer. 

For example, an accused could escape from an officer by jimmying 

the lock on the door of a squad car. In such a case, the accused 

could be prosecuted under Code § 18.2-478 because he used force 

to break out of the car, even though he did not assault an 

officer. 

 Thus, the crime of escape from lawful custody by use of 

force or violence contains an element of proof that is not 

required for the crime of assault. Because we are required to 

examine the two offenses charged against Henry in the abstract, 

rather than with an eye on the specific facts of his case, we 

hold that the crimes of assaulting an officer under Code 

§ 18.2-57.1 and of escape under Code § 18.2-478 each contain 

elements of proof that the other does not. 

 Affirmed.
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Benton, J., dissenting. 

 Willie Jerome Henry was convicted of violating Code 

§ 18.2-478, which provides in pertinent part as follows: 

 [I]f any person lawfully in the custody of 

any police officer on a charge of criminal 

offense escapes from such custody by force or 

violence, he shall be guilty of a Class 6 

felony. 

Because the police officer never had control of Henry's person, I 

would hold that Henry was not in lawful custody and could not 

have violated this statute when he fled. See Johnson v. 

Commonwealth, ___ Va. App. ___, ___, ___ S.E.2d ___, ___ (1995) 

(Benton, J., dissenting); Castell v. Commonwealth, ___ Va. App. 

___, ___, ___ S.E.2d ___, ___ (1995) (en banc) (Benton, J., 

dissenting). 

 "[T]he Due Process Clause protects the accused against 

conviction except upon proof beyond a reasonable doubt of every 

fact necessary to constitute the crime with which he is charged." 

In re Winship, 397 U.S. 358, 364 (1970). The Commonwealth 

failed to prove beyond a reasonable doubt that Henry was in the 

officer's custody. The officer was attempting to arrest Henry 

when Henry fled. The evidence proved that the officer had not 

gained control of Henry and that Henry had not submitted to the 

officer's authority. From the time Henry ran from the house 

until the final encounter when the officer put cuffs on Henry's 

wrists, Henry never submitted to the officer's authority. 

Evidence that the officer pointed his gun at Henry for thirty 

seconds while the officer approached and attempted to apprehend 
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Henry does not prove that Henry submitted to the officer's 

authority. The evidence is undisputed that Henry verbally 

challenged the officer's willingness to shoot him and fled. 

Thus, Henry never submitted to the officer's authority. 

 Upon this evidence, the Commonwealth did not prove beyond a 

reasonable doubt that Henry was in the officer's custody and, 

thus, failed to prove the element necessary to sustain a 

conviction under Code § 18.2-478. For these reasons, I would 

hold that the evidence was insufficient to uphold the conviction.