PRESENT: All the Justices 

KENTON DEON HUBBARD 

v. Record No. 071567 OPINION BY 

JUSTICE S. BERNARD GOODWYN 

COMMONWEALTH OF VIRGINIA June 6, 2008 

FROM THE COURT OF APPEALS OF VIRGINIA 

 In this appeal, we consider whether the evidence was 

sufficient to sustain a conviction for felonious escape from 

custody, in violation of Code § 18.2-478, when there was no 

written criminal complaint or formal accusation against the 

person who escaped from custody. 

In the Circuit Court of Campbell County, Kenton Deon 

Hubbard (”Hubbard”) was convicted of felonious escape from 

custody. The Court of Appeals denied Hubbard's petition for 

appeal of that conviction. This appeal ensued. 

On February 18, 2005, State Trooper Scott Cash initiated 

a traffic stop of a car, driven by Hubbard, because the window 

tint appeared improper and Hubbard was not wearing a seatbelt. 

When Cash activated his vehicle’s emergency lights to make the 

traffic stop, Hubbard’s car, which was originally in the 

right-hand lane, merged into the left-hand lane. Hubbard’s 

car then sped up to approximately 85 miles per hour in an area 

with a posted speed limit of 55. 

After a ten-mile chase, Hubbard made a left-hand turn 

into a residential yard. Hubbard stopped the car, got out, 

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and ran behind the house. Cash chased Hubbard who ran into a 

wooded area behind the house. Cash continually yelled, “State 

[p]olice, police, stop, you’re under arrest . . . .” 

Approximately 70 yards into the woods, Cash caught up 

with Hubbard and tackled him to the ground. Hubbard resisted 

by punching, kicking, and elbowing Cash. Cash stated, “Stop 

resisting, you’re under arrest.” Eventually the men were 

positioned such that Hubbard was on his stomach with Cash on 

top of him. Cash testified to the following: 

At that point I - after struggling with the driver, 

I was temporarily – I was able to temporarily 

restrain him with pepper mace. I sprayed him in 

the face. I maintained contact with his left hand 

and once I went with my right hand to my handcuffs, 

he was able to kick back, he kicked with his feet, 

his arms and hit me and knocked me off of him, and 

he escaped from my custody at that point. 

Hubbard ran approximately 200 yards before Cash lost 

visual contact, at which time Cash ceased his pursuit. 

Cash returned to his car and requested “backup” and a 

canine unit. 

 The trial court found Hubbard guilty of felonious escape 

from custody. Hubbard appealed to the Court of Appeals. The 

Court of Appeals, noting that Hubbard’s petition concerning 

the felonious escape conviction only raised custody and double 

jeopardy arguments as a basis for reversing the conviction, 

denied Hubbard’s petition for appeal. 

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 On appeal to this Court, Hubbard challenges the 

sufficiency of the evidence to sustain his conviction for 

felonious escape from custody in violation of Code § 18.2-478. 

Hubbard argues, as he did in the trial court and the Court of 

Appeals, that he was never in Cash’s custody. While Hubbard 

focuses on the issue of whether he was ever in custody, the 

dispositive question, which is included in Hubbard’s 

assignment of error, is whether the Commonwealth was required 

to prove, as an element of the offense, that Hubbard was in 

custody “on a charge of criminal offense” when he allegedly 

escaped. 

 The Commonwealth has the burden to prove every essential 

element of the charged crime beyond a reasonable doubt. 

Washington v. Commonwealth, 273 Va. 619, 623, 643 S.E.2d 485, 

487 (2007). An accused cannot be convicted of a crime unless 

the Commonwealth meets its burden of proof. See id. at 629, 

643 S.E.2d at 490. “[A]n essential of the due process 

guaranteed by the Fourteenth Amendment [is] that no person 

shall be made to suffer the onus of a criminal conviction 

except upon sufficient proof – defined as evidence necessary 

to convince a trier of fact beyond a reasonable doubt of the 

existence of every element of the offense." Jackson v. 

Virginia, 443 U.S. 307, 316 (1979). 

 First, we must determine the elements of the offense. 

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Hubbard was convicted of felonious escape from custody under 

Code § 18.2-478, which states in relevant part: 

[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. 

(Emphasis added.) The plain language of the statute indicates 

that the Commonwealth must prove that the accused was in the 

custody of the police officer, that the accused was charged 

with a criminal offense before he was taken into custody, and 

that the accused escaped from such custody by force or 

violence. The Commonwealth must prove all three elements 

beyond a reasonable doubt before the accused can be found 

guilty of felonious escape from custody, as defined in Code 

§ 18.2-478. 

 Although this Court has never addressed what constitutes 

being taken into custody “on a charge of criminal offense,” 

the Court of Appeals considered the issue in Coles v. 

Commonwealth, 44 Va. App. 549, 605 S.E.2d 784 (2004). In 

Coles, the defendant appealed his conviction under Code 

§ 18.2-478 arguing that the Commonwealth failed to prove he 

was taken into custody “on a charge of criminal offense.” Id.

at 553, 605 S.E.2d at 786. In Coles, the Commonwealth claimed 

that probable cause to arrest satisfies the element in Code 

§ 18.2-478 requiring the Commonwealth to prove the defendant 

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was taken into custody “on a charge of criminal offense.” Id.

at 557, 605 S.E.2d at 787. However, the Court of Appeals 

rejected the Commonwealth’s argument and held, “[I]n order to 

sustain a conviction for escape under Code § 18.2-478, the 

evidence must prove beyond a reasonable doubt that the 

defendant was taken into custody ‘on a charge of criminal 

offense.’ Probable cause to arrest will not satisfy this 

element of the offense.” Id. at 561, 605 S.E.2d at 790. We 

agree with, and adopt, the Court of Appeals’ holding in Coles. 

 The plain language of Code § 18.2-478 requires the 

Commonwealth to prove that the defendant was taken into 

custody “on a charge of criminal offense.” “A criminal 

charge, strictly speaking, exists only when a formal written 

complaint has been made against the accused and a prosecution 

initiated.” United States v. Patterson, 150 U.S. 65, 68 

(1893). The word “charge” is defined by Black’s Law 

Dictionary 248 (8th ed. 2004), as a “formal accusation of an 

offense as a preliminary step to prosecution.” Thus, the 

phrase, “on a charge of criminal offense,” clearly 

contemplates a formal accusation upon which a trial court 

could act and pass judgment. Therefore, to sustain a 

conviction under Code § 18.2-478, the evidence must show the 

defendant was taken into custody pursuant to a written charge; 

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probable cause to arrest will not suffice to satisfy the “on a 

charge of criminal offense” element stated in Code § 18.2-478. 

 The Commonwealth did not introduce any evidence that 

there was a written charge against Hubbard at the time he was 

allegedly taken into custody by Cash. Considering the plain 

language of Code § 18.2-478, it is clear the Commonwealth 

failed to prove beyond a reasonable doubt that Hubbard 

violated that statute, and Hubbard should not have been 

convicted of felonious escape from custody. Thus, the Court 

of Appeals erred in affirming the trial court’s judgment 

rendering that conviction. 

 For these reasons, we conclude that the evidence was 

insufficient, as a matter of law, to sustain Hubbard’s 

conviction under Code § 18.2-478. We will therefore reverse 

the judgment of the Court of Appeals and dismiss the 

indictment. 

Reversed and dismissed.