COURT OF APPEALS OF VIRGINIA

Present: Judges Huff, O’Brien and White

Argued by videoconference

SEAN JAMES HORAN

MEMORANDUM OPINION* BY

v. Record No. 1186-21-1 JUDGE GLEN A. HUFF

DECEMBER 6, 2022

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH

A. Bonwill Shockley, Judge

Kristin Paulding (7 Cities Law, on brief), for appellant.

Victoria Johnson, Assistant Attorney General (Jason S. Miyares, 

Attorney General, on brief), for appellee.

The trial court convicted appellant of assault and battery of a law enforcement officer, in 

violation of Code § 18.2-57(C), attempting to disarm a law enforcement officer, in violation of 

Code §§ 18.2-57.02 and 18.2-26, trespassing, in violation of Code § 18.2-119, disorderly conduct, 

in violation of Code § 18.2-415, attempting to prevent his arrest, in violation of Code § 18.2-460(E),

and public intoxication, in violation of Virginia Beach local ordinance 23-22.1 He challenges the 

sufficiency of the evidence supporting his convictions.2 Appellant also contends that the trial court 

* Pursuant to Code § 17.1-413, this opinion is not designated for publication.

1 The trial court acquitted appellant of assault, failure to provide identification to law 

enforcement, and obstruction of justice.

2 Although appellant originally included a sufficiency of the evidence challenge to his 

public intoxication conviction, he has withdrawn that assignment of error in his opening brief. 

Accordingly, this Court need not address that assignment of error. See, e.g., Marsh v. 

Commonwealth, No. 1568-13-2, 2015 WL 1013381 (Va. Ct. App. Mar. 10, 2015) (deciding that 

we need not address withdrawn arguments); Mayo v. Commonwealth, No. 2385-11-4, 2013 

WL 599778 (Va. Ct. App. Feb. 19, 2013) (same).

UNPUBLISHED
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erred by convicting him of disorderly conduct because the trial court based its verdict on “the same 

conduct used to convict [him] for public intoxication and attempting to prevent a law enforcement 

officer from arresting [him].” For the reasons below, this Court reverses appellant’s conviction for 

attempting to prevent his arrest and affirms the remainder of his challenged convictions.

BACKGROUND

“In accordance with familiar principles of appellate review, the facts will be stated in the 

light most favorable to the Commonwealth, the prevailing party at trial.” Poole v. 

Commonwealth, 73 Va. App. 357, 360 (2021) (quoting Gerald v. Commonwealth, 295 Va. 469, 

472 (2018)). On the afternoon of May 14, 2019, appellant stopped at a Virginia Beach Buffalo 

Wild Wings restaurant after leaving his job at a local brewery. Appellant ordered a meal and a 

beer, and Leandra Nobles, the bartender, was appellant’s server. According to appellant, Nobles 

was “dismissive” when he asked her to change the channels on the bar television, and “a 

conflict” arose between them.

3

 Appellant conceded that he was intoxicated when he arrived at 

the restaurant.

The restaurant manager, Michael Fortuna, testified that Nobles entered his office and told 

him that appellant was asleep at the bar and had refused her request to leave. Fortuna left his 

office, walked behind the bar, and asked appellant to leave. When Fortuna asked appellant for 

his credit card to close out his check, appellant retorted, “Well, do you even know how to use a 

credit card?” Fortuna swiped appellant’s credit card and asked him again to leave. Appellant 

replied, “[O]kay. I’m not leaving.” But when Fortuna walked past appellant toward his office, 

appellant implored, “[P]lease, please don’t call the cops. I’ll go ahead and leave.” Fortuna told 

appellant, “[W]ell, sir, if you don’t leave, I have to call the cops.”

3 Nobles testified at trial. The trial court specifically found that her testimony was not 

credible.
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When appellant remained in the restaurant, Fortuna entered his office and called the 

nonemergency number for police dispatch. As Fortuna spoke with dispatch, Nobles appeared in 

Fortuna’s office with appellant’s wallet. Fortuna returned to the restaurant where he discovered 

some of the guests attempting to “keep [appellant] away” from Nobles, and “an altercation”

between appellant and the other diners. Appellant was walking around the bar “antagonizing”

Nobles by “saying stuff” to her. Fortuna attempted to “block” appellant between two tables to 

keep him away from the other patrons and Nobles. When appellant approached Nobles, three of 

the restaurant guests pushed him back. Fortuna called 911 and reported that “the situation had 

gotten physical.” The dispatcher assured Fortuna that officers were en route. As Fortuna spoke 

with the dispatcher, three patrons “carried” appellant out of the restaurant.

One of those patrons, Dylan Edwards, testified that he intervened because appellant was 

“[b]eing loud[] running around the restaurant” and swearing at the bartender. Edwards stated 

that appellant “chucked” his sunglasses at the bartender’s face as he stood two feet away from 

her. Edwards pushed appellant toward the end of the bar and said, “[L]et’s go, let’s go.” 

Edwards was unsuccessful in escorting appellant to the exit, and appellant began to swear at the 

bartender, calling her the “N-word” and “a bitch.” Edwards asked appellant to stop, but another 

patron pushed appellant to the ground. When appellant stood and attempted to “get past”

Edwards, he stated, “I’m getting my wallet back from that bitch.” Edwards grabbed him by the 

neck and dragged him out of the restaurant. Once they reached the sidewalk outside the 

restaurant entrance, Edwards blocked appellant so that he could not re-enter, and “a little scuffle” 

ensued. When Officers Simmons and Webb arrived, Edwards assisted them in handcuffing 

appellant. Edwards also assisted the officers as they escorted appellant to a patrol car. When 

they reached the car, appellant “kicked off of [it] and everybody fell in the street,” narrowly 

avoiding a passing vehicle.
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Simmons testified that he was the first officer to arrive at the restaurant in response to a 

report of “[a] disorderly subject.” Footage from Simmon’s body camera was admitted at trial. 

As Simmons approached the sidewalk outside the restaurant entrance, three men were standing 

around appellant. Webb arrived almost immediately after Simmons. Simmons noticed that 

appellant smelled of alcohol and his speech was “very slurred.”

As Simmons drew closer to appellant, Simmons asked, “What’s the deal, man?” In the 

footage, someone in the gathering referred to a “camera,” at which point appellant turned his 

back to Simmons. Simmons, who was standing immediately behind appellant, reached out and 

grabbed appellant by his backpack, stating, “No, no, you go over here.” Simmons kept his hands 

on appellant as he turned appellant around and moved him toward the railing along the sidewalk. 

Without announcing that appellant was under arrest, Simmons and Webb grabbed appellant by 

the arms and attempted to handcuff him. At trial, Simmons and Webb testified that they were 

handcuffing appellant for “[p]ublic intoxication.”

Appellant struggled with the officers, “jerking his body around, pulling his arms to the 

front” and moving forward “to get away” from the officers, but the officers kept their hands on 

him. After struggling with appellant, the officers “decided to take him to the ground.” As they 

did, appellant’s face struck a windowsill. The officers handcuffed appellant, assisted him to his 

feet, and with their hands on appellant, they escorted him to a patrol car across the street. Both 

officers placed their hands on appellant because he was “very unsteady on his feet” and “kind of 

floppy.” Simmons held appellant against the patrol car while Webb searched him.

Simmons felt a “tug” on his service firearm and saw appellant’s left hand pulling on the 

butt of his gun. Appellant was unable to remove the gun because it was secured in the holster. 

Simmons twisted his body away from appellant, alerted Webb, and the two officers placed 

appellant on the ground again. Webb testified that she saw appellant’s hand “[p]ulling up” on 
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the grip of Simmons’s weapon. Webb and Simmons kept appellant on the ground, and when 

backup assistance arrived, they attempted to place appellant in the back of the patrol car. 

Appellant “lock[ed] his legs” and continued to resist, prompting the backup officer to pull him 

into the car feet first.

Appellant’s head was bleeding, but he refused medical assistance. Webb transported him 

to jail, and upon their arrival, appellant refused to exit the patrol car. With assistance from 

deputies, Webb escorted appellant into the jail and placed him on a bench. As Webb bent down 

to handcuff appellant to the bench, he repeatedly “g[ot] in [her] face” and called her “a dog 

killing bitch.” When Webb placed her hand on appellant’s shoulder to push him away from her 

face, he licked her forearm, depositing blood on it from his face. Webb testified that appellant 

was laughing and swearing at her during the incident.

Appellant testified on his own behalf. He stated that he went to the restaurant after work 

to watch sports on television and to eat dinner and that Nobles became “very annoyed” when he 

asked her to change the television channel. After that, appellant maintained that her service 

became “worse and worse.” When Nobles asked him to “cash out” and leave before he had 

finished his meal, he asked for her manager. Appellant stated that he paid the manager at the bar

and, even though the manager and Nobles asked him to leave, he remained there because he 

wanted to discuss the poor service he had received. After the manager threatened to call the 

police and returned to his office, Nobles took his wallet. Appellant agreed that “a conflict” arose 

between him and Nobles after that and that none of the other patrons believed that she had taken 

his wallet. Appellant denied calling Nobles a “bitch” or “the N-word,” but he agreed that a 

customer “grabbed [him] around the neck” and dragged him out of the restaurant. He stated that, 

when the police arrived, they “grabbed” him immediately and were “extremely hostile.” 

Appellant admitted that he “struggled” with the officers and called Simmons a “f-ing midget”
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and Webb a “dog killing bitch”; however, he denied attempting to disarm Simmons or licking 

Webb’s arm.

At the conclusion of the evidence, the trial court convicted appellant of assault and 

battery of a law enforcement officer, attempting to disarm a law enforcement officer, attempting 

to prevent his arrest, disorderly conduct, trespass, and public intoxication. The trial court 

acquitted him of assault, failure to provide identification to law enforcement, and obstruction of 

justice. This appeal followed.

ANALYSIS

“When reviewing the sufficiency of the evidence, ‘[t]he judgment of the trial court is 

presumed correct and will not be disturbed unless it is plainly wrong or without evidence to 

support it.’” McGowan v. Commonwealth, 72 Va. App. 513, 521 (2020) (alteration in original) 

(quoting Smith v. Commonwealth, 296 Va. 450, 460 (2018)). This Court must affirm if “any

rational trier of fact could have found the essential elements of the crime beyond a reasonable 

doubt.” Vasquez v. Commonwealth, 291 Va. 232, 248 (2016) (quoting Williams v. 

Commonwealth, 278 Va. 190, 193 (2009)). “If there is evidentiary support for the conviction, 

‘the reviewing court is not permitted to substitute its own judgment, even if its opinion might 

differ from the conclusions reached by the finder of fact at the trial.’” McGowan, 72 Va. App. at 

521 (quoting Chavez v. Commonwealth, 69 Va. App. 149, 161 (2018)).

1. Assault and Battery of a Law Enforcement Officer

Appellant contends that the evidence failed to prove that he committed a “battery” on 

Webb because he did not have the requisite intent. Appellant stresses that he had suffered head 

trauma before the incident with Webb and that he “felt out of it” and “did not comprehend what 

was going on,” and therefore could not have formed the specific intent to harm the officer.
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To convict a person of assault and battery, the Commonwealth must prove the person’s 

“intention to do bodily harm—either an actual intention or an intention imputed by law.” Adams 

v. Commonwealth, 33 Va. App. 463, 468 (2000) (quoting Davis v. Commonwealth, 150 Va. 611, 

617 (1928)). Where a person touches another “in a rude, insolent, or angry manner,” a factfinder 

may “impute” the “unlawful intent.” Kelley v. Commonwealth, 69 Va. App. 617, 628 (2019)

(first quoting Adams, 33 Va. App. at 469; and then quoting Parish v. Commonwealth, 56 

Va. App. 324, 331 (2010)).

Viewed as a whole, the circumstances were sufficient to support a reasonable conclusion 

that appellant willfully touched Webb in a “rude” or “insolent” manner. Id.; see also Gilbert v. 

Commonwealth, 45 Va. App. 67, 71-72 (2005) (evidence sufficient to prove requisite intent for 

assault and battery when defendant was noncompliant with police and cursed, threatened, and 

spat at police officer). Appellant was combative and uncooperative with Webb and Simmons 

when they took him into custody and remained so after Webb drove him to jail. By his own 

admission, appellant was intoxicated and swearing at Webb when he arrived at the jail. Webb 

testified that appellant repeatedly “g[ot] in [her] face” as she attempted to handcuff him to a 

bench and, when she pushed him away from her face, he licked and bloodied her forearm. And 

Webb testified that appellant’s touching was unwanted. Although appellant denied that he licked 

Webb, the trial court was permitted to reject his self-serving testimony and conclude that he was 

lying to conceal his guilt. Flanagan v. Commonwealth, 58 Va. App. 681, 702 (2011). A 

factfinder could therefore properly impute unlawful intent based on his actions. Accordingly, the 

evidence was sufficient to support appellant’s conviction for the assault and battery of a law 

enforcement officer.
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2. Attempt to Disarm a Law Enforcement Officer

Appellant next argues that he did not “knowingly” attempt to remove or deprive 

Simmons of the use of his firearm, as required by Code §§ 18.2-57.02 and 18.2-26. Instead, 

citing his testimony at trial, he contends that he accidentally touched the gun when “he was 

feeling around for balance” because he was “unsteady on his feet,” “dazed,” and “confused” after 

he hit his head in front of Buffalo Wild Wings.

“An attempt to commit a crime is composed of two elements: (1) [t]he intent to commit 

it; and (2) a direct, ineffectual act done towards its commission.” Pulley v. Commonwealth, 74 

Va. App. 104, 124 (2021) (alteration in original) (quoting Fletcher v. Commonwealth, 72 

Va. App. 493, 506 (2020)). “The intent required to be proven in an attempted crime is the

specific intent in the person’s mind to commit the particular crime for which the attempt is 

charged.” Id. (quoting Fletcher, 72 Va. App. at 506). “Intent is a factual determination, and a 

trial court’s decision on the question of intent is accorded great deference on appeal and will not 

be reversed unless clearly erroneous.” Towler v. Commonwealth, 59 Va. App. 284, 297 (2011). 

“Circumstantial evidence is as acceptable to prove guilt as direct evidence, and in some cases, 

such as proof of intent or knowledge, it is practically the only method of proof.” Abdo v. 

Commonwealth, 64 Va. App. 468, 475-76 (2015) (quoting Parks v. Commonwealth, 221 Va. 

492, 498 (1980)). Moreover, “[t]he finder of fact may infer that a ‘person intends the natural and 

probable consequences of his or her acts.’” Johnson v. Commonwealth, 53 Va. App. 79, 100 

(2008) (quoting Velasquez v. Commonwealth, 276 Va. 326, 330 (2008)).

Here, appellant repeatedly resisted the officers’ attempts to handcuff him and place him 

in the police cruiser. He struggled with the officers, swore at them, and had to be forced to the 

ground outside the restaurant as well as outside the patrol car. Simmons and Webb testified that 

appellant was “tugging” and “pulling” at the grip of Simmons’s service weapon as the officers 
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attempted to place him in the patrol car. That testimony was sufficient to prove appellant 

knowingly and intentionally attempted to remove Simmons’s weapon.

3. Trespass

Appellant asserts that the evidence was insufficient to support his trespass conviction 

under Code § 18.2-119 because he “had no intent to trespass due to his good faith belief that he 

could be on the property to retrieve his wallet.” He maintains that, “[a]lthough not listed in the 

statute, criminal intent is an element of trespassing.” Citing Reed v. Commonwealth, 6 Va. App.

65 (1988), appellant contends that a defendant does not trespass when he is “on the premises or 

land under a bona fide claim of right.”

Code § 18.2-119 states in pertinent part:

If any person without authority of law goes upon or remains upon 

the . . . buildings or premises of another . . . after having been 

forbidden to do so, either orally or in writing, by the owner, lessee, 

custodian, or the agent of any such person, . . . he shall be guilty of 

a Class 1 misdemeanor.

Although not expressly stated, Code § 18.2-119 “has been uniformly construed to require a

willful trespass.” Reed, 6 Va. App. at 70 (emphasis added); see also Commonwealth v. Hicks,

267 Va. 573, 583 (2004) (“Code § 18.2-119 . . . has an intent requirement [and] the 

Commonwealth [i]s required to prove that [the defendant] committed an act of intentional

trespass.”). Thus, a person is not guilty of criminal trespass when he shows he remained on the 

property “under a bona fide claim of right”—that is, “a sincere, although perhaps mistaken, good 

faith belief that [he] has some legal right to be on the property.” Reed, 6 Va. App. at 71.

But a “claim of right is an affirmative defense.” Id. at 70. A defendant relying on an 

affirmative defense has the burden “to present evidence establishing such defense to the 

satisfaction of the fact finder.” Riley v. Commonwealth, 277 Va. 467, 479 (2009). Here,

appellant cites only his belief that he was entitled to remain in the restaurant after Nobles 
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removed his wallet. Appellant’s argument, however, ignores the undisputed evidence that he 

remained at the restaurant before the dispute with Nobles over his wallet. The record 

demonstrates that appellant refused to leave after both Nobles and Fortuna directed him to leave

and he had paid his bill, even after Fortuna announced that he was calling the police. Appellant 

cites no evidence that either Fortuna or Nobles had agreed for him to remain on the premises. 

Based on appellant’s “conflict” with Nobles, the trial court could reasonably find that appellant 

remained in the restaurant because he was upset with Nobles, not because he believed he had a 

bona fide right to be there. The evidence thus supports his conviction for criminal trespass.

4. Disorderly Conduct—Code § 18.2-415

Appellant also claims the trial court erred by convicting him of disorderly conduct in 

violation of Code § 18.2-415 because “the conduct that the court considered disorderly was the 

same conduct used to convict [him] for public intoxication and attempting to prevent a law 

enforcement officer from arresting [him].” He cites Battle v. Commonwealth, 50 Va. App. 135 

(2007), to argue that the “other crimes” provision in Code § 18.2-415(B) prohibited the 

Commonwealth from prosecuting him for disorderly conduct and for public intoxication and 

attempted flight from a law enforcement officer in violation of Code § 18.2-490(E).

Code § 18.2-415 states in pertinent part:

A. A person is guilty of disorderly conduct if, with the intent to 

cause public inconvenience, annoyance, or alarm, or recklessly 

creating a risk thereof, he:

1. . . . while in a public place engages in conduct having a direct 

tendency to cause acts of violence by the person or persons at 

whom, individually, such conduct is directed[.]

. . . .

B. The conduct prohibited under subsection A shall not be deemed 

to include the utterance or display of any words or to include 

conduct otherwise made punishable under this title.
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In Battle, this Court reversed the defendant’s conviction of disorderly conduct “because 

the statute specifically excludes ‘conduct otherwise made punishable’ by other Title 18.2 

criminal statutes.” 50 Va. App. at 137 (quoting Code § 18.2-415). The Court clarified, however, 

that the proviso “does not say a disorderly conduct charge must be dismissed anytime a 

defendant could be prosecuted under both the disorderly conduct statute and another provision of 

Title 18.2.” Id. at 140. “[T]he conduct exempted from the reach of Code § 18.2-415 includes 

only Title 18.2 crimes for which the defendant could be found guilty beyond a reasonable 

doubt.” Id. Further, the “other-crimes” proviso precludes a conviction under Code § 18.2-415 

only when the “convictable disorderly conduct [i]s comprised solely of conduct ‘otherwise made 

punishable under this title.’” Id. at 141 (quoting Code § 18.2-415). Thus, the exception applies 

only if a factfinder could find the defendant guilty beyond a reasonable doubt of another crime 

based “solely” on the conduct supporting his disorderly conduct conviction. Id.

Appellant’s conviction does not fall within that exception. His argument first assumes 

that the evidence was sufficient to support his convictions for those two offenses. But, as

explained later, this Court concludes the evidence did not support convicting appellant of 

attempting to prevent his arrest. Because “the conduct exempted from . . . Code § 18.2-415

includes only Title 18.2 crimes for which the defendant could be found guilty beyond a 

reasonable doubt,” the conduct related to the charge of attempted flight is irrelevant to this 

analysis. Id. at 140 (emphasis added).

Second, his argument also assumes that his disorderly conduct conviction was based 

“solely” on the conduct also supporting convictions for public intoxication and attempted flight 

from a law enforcement officer. Yet the “convictable disorderly conduct” supporting appellant’s 

conviction under Code § 18.2-415 is not “comprised solely of conduct ‘otherwise made 

punishable’” under the public intoxication ordinance or Code § 18.2-460(E). Id. at 141. To 
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prove disorderly conduct, the Commonwealth was not required to prove that appellant was 

intoxicated or that he attempted to flee from a law enforcement officer. Instead, the 

Commonwealth was required to prove that appellant intended “to cause public inconvenience, 

annoyance, or alarm, or recklessly create[ed] a risk thereof,” and “while in a public place 

engage[d] in conduct having a direct tendency to cause acts of violence by the person or persons 

at whom, individually, such conduct is directed.” Code § 18.2-415. This conduct is not the same 

conduct proscribed by an ordinance prohibiting public intoxication or a statute prohibiting flight 

from a law enforcement officer.4 Accordingly, as the conduct supporting appellant’s disorderly 

conduct conviction was not based “solely” on the conduct supporting his public intoxication and 

attempted flight from a law enforcement officer convictions, appellant’s argument that the 

exemption in Code § 18.2-415(B) prohibited his disorderly conduct conviction is unpersuasive.

5

5. Attempt to Prevent Arrest by Flight

Appellant next asserts that the evidence failed to prove he attempted to prevent a law 

enforcement officer from arresting him in violation of Code § 18.2-460(E) because it did not 

prove that he fled. He correctly argues that a violation of the statute requires proof of “running 

4

See, e.g., Tokora-Mansary v. Commonwealth, No. 2494-08-4, slip op. at 9, 2009 

WL 5083540, at *5 (Va. Ct. App. Dec. 29, 2009) (“[D]isorderly conduct was not ‘comprised 

solely of conduct “otherwise made punishable”’ under Title 18.2.”); Cary v. Commonwealth, No.

2068-14-1, 2015 WL 6143660 (Va. Ct. App. Oct. 20, 2015) (finding disorderly conduct 

conviction not based on same conduct as obstruction of justice conviction). “Unpublished 

opinions . . . have no precedential value.” Brandau v. Brandau, 52 Va. App. 632, 639 n.2 

(2008). Nevertheless, the citation of an unpublished opinion “is permitted as informative.” Rule 

5A:1(f).

5 Given the narrow scope of appellant’s argument, we need not address whether he could 

have been convicted of another offense in Title 18.2, other than public intoxication and 

attempted flight from a law enforcement officer, based solely on the evidence supporting his 

disorderly conduct conviction. See Battle, 50 Va. App. at 141-42 (holding that all of the conduct 

supporting the defendant’s conviction under Code § 18.2-415 was encompassed by other 

offenses in Title 18.2, including assault, fighting words, and obstructing “free passage,” and 

therefore, he could not be convicted of disorderly conduct).
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away or movement away from the officer’s immediate span of control.” He invokes Joseph v. 

Commonwealth, 64 Va. App. 332 (2015), in which “this Court reversed a conviction under the 

predecessor of Code § 18.2-460(E)—i.e., Code § 18.2-479.1.” Peters v. Commonwealth, 72 

Va. App. 378, 387 (2020).

6

Code § 18.2-460(E) states:

Any person who intentionally prevents or attempts to prevent a 

law-enforcement officer from lawfully arresting him, with or 

without a warrant, is guilty of a Class 1 misdemeanor. For 

purposes of this subsection, intentionally preventing or attempting 

to prevent a lawful arrest means fleeing from a law-enforcement 

officer when (i) the officer applies physical force to the person, or 

(ii) the officer communicates to the person that he is under arrest 

and (a) the officer has the legal authority and the immediate 

physical ability to place the person under arrest, and (b) a 

reasonable person who receives such communication knows or 

should know that he is not free to leave.

In Joseph, the defendant “refused to comply with an officer’s commands to place his 

hands behind his back, ‘repel[led] the officer’s efforts to secure the handcuffs on him,’ and 

‘backed up onto the officer,’ but ‘did not leave the scene and remained continuously in . . . close 

proximity’ to the officer.” Peters, 72 Va. App. at 387-88 (alterations in original) (quoting 

Joseph, 64 Va. App. at 340). The Court held that “the fact that the appellant was clearly 

‘resisting’ the officer’s efforts to lawfully arrest him [was not] dispositive because the clear 

language in [the statute] requires that the offender be ‘fleeing’ from the officer as an element of 

the crime.” Joseph, 64 Va. App. at 340. Accordingly, “‘fleeing from a law-enforcement officer’

requires evidence of running away or physical movement beyond the scope of the officer’s 

immediate span of control.” Id. at 341. Because the evidence failed to prove that the defendant

was “beyond” the officer’s “immediate span of control,” the Court reversed his conviction. Id.;

6 Code § 18.2-479.1 was repealed in 2018. Peters, 72 Va. App. at 387 n.6. “The case 

law that interpreted and applied Code § 18.2-479.1 applies in interpreting and applying Code 

§ 18.2-460(E).” Id.
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see also Peters, 72 Va. App. at 388 (“[T]he trial court erred by holding simply that Peters’s 

refusal to place his hands behind his back was sufficient for a conviction under Code 

§ 18.2-460(E).”).

On appeal, the Commonwealth argues that appellant “fled” when he “broke away” from 

the officers, as well as when he “walk[ed] past Officer Simmons such that the officer had to 

reach out and grab [appellant]’s backpack to stop him.” Nevertheless, the Commonwealth 

concedes that the “officers . . . held onto [appellant]’s clothing.” At trial, Simmons was asked 

about the specific instances when appellant attempted to flee. Simmons answered that appellant 

attempted to flee “multiple times.” He emphasized that appellant “buck[ed] . . . trying to get 

away from us” as the officers walked him to the patrol car, but they “ha[d] him hooked under his 

arms so he couldn’t get away.” Simmons also stressed that appellant was “tugging on my 

firearm” when they reached the car. When asked if appellant ever “broke away” from the 

officers, Simmons replied that he did so “multiple times in the beginning of the video. You see 

him break his hands away from to where [sic] we have to take him to the ground.”

In Simmons’s body camera footage, neither he nor Webb announced to appellant that he 

was under arrest as they approached him; instead, as Simmons drew closer to appellant, he 

asked, “What’s the deal, man?” After an unidentified voice referred to a “camera,” appellant 

turned his back to Simmons, but remained within arm’s reach of Simmons, enabling the officer 

to grab appellant’s backpack and redirect him, stating, “No, no, you go over here.” Simmons’s 

hands remained on appellant as he moved appellant toward the railing along the sidewalk. 

Further, although the video reflects that appellant struggled with the officers as they attempted to 

handcuff him, Simmons testified that the officers took appellant “to the ground” when he pulled 

his hands away, demonstrating that he “remained continuously in . . . close proximity” to the 

officers. Joseph, 64 Va. App. at 340. The testimony and the video establish that appellant never 
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moved from the officers’ “immediate span of control” as he resisted being handcuffed. Id. at 

341. Because appellant never fled from Simmons by “running away” or “physical[ly] mov[ing] 

beyond the scope of the officer’s immediate span of control,” the evidence does not support his 

conviction under Code § 18.2-460(E). Id. This Court therefore reverses that conviction.

CONCLUSION

For the foregoing reasons, we reverse appellant’s conviction for attempting to prevent his 

arrest by fleeing from a law enforcement officer and affirm his convictions for assault and 

battery of a law enforcement officer, attempting to disarm a law enforcement officer, trespass,

and disorderly conduct.

Affirmed in part and reversed in part.