COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Benton, Coleman, 

 Willis, Elder, Bray, Annunziata, Overton, Bumgardner 

 and Lemons 

Argued at Richmond, Virginia 

ERVIN WOODSON CAVELL 

 OPINION BY 

v. Record No. 2168-96-2 JUDGE ROSEMARIE ANNUNZIATA 

 NOVEMBER 10, 1998 

COMMONWEALTH OF VIRGINIA 

UPON A REHEARING EN BANC 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Thomas N. Nance, Judge 

 Cullen D. Seltzer (David J. Johnson, Public 

Defender, on brief), for appellant. 

 Marla Graff Decker, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Appellant, Ervin W. Cavell, was convicted of escape in 

violation of Code § 18.2-479. On appeal, he contends the 

evidence was insufficient to support his conviction. We agree 

and reverse his conviction. 

 The facts are undisputed. Clad in his police uniform and 

carrying a bottle of "OC" spray, Officer Lewis approached a crowd 

involved in a fight. Lewis ordered the crowd to disperse, and, 

as the crowd broke, Lewis identified appellant among the group. 

Lewis knew of a felony warrant on file for appellant's arrest, 

and he approached appellant intending to arrest him on the 

warrant. From a distance of approximately ten feet, Lewis 

stated, "Ervin, I need to talk to you." Appellant responded with 
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profanity and told Lewis to "[g]et away from [him] with [the "OC" 

spray]." Lewis replied, "[the "OC" spray] is not for you. You 

are under arrest. You have a felony warrant." Appellant again 

responded with profanity. Lewis told appellant, "Don't run. You 

are under arrest." Appellant repeated his profane remark and 

told Lewis, "I am going to anyway." At that point, Lewis stood 

four to five feet from appellant. Lewis testified that he "was 

attempting to grab [appellant]," but that he "wasn't close enough 

to do it yet." Before Lewis reached for him, appellant fled. He 

ran a couple of blocks before he was subdued. 

 Code § 18.2-479 makes it unlawful for "any person . . . 

lawfully in the custody of . . . any law-enforcement officer on a 

charge or conviction of a felony" to escape. The question on 

appeal is whether appellant was "lawfully in the custody" of 

Lewis when he fled. 

 In the case before us, appellant concedes he knew he was not 

free to leave but contends the police officer did not have the 

immediate physical ability to place him under formal arrest, as 

required by our holding in Castell v. Commonwealth, 21 Va. App. 

78, 82, 461 S.E.2d 438, 439 (1995) (en banc). In Castell, we 

held that for purposes of Code § 18.2-479, custody "does not 

require direct physical restraint." 21 Va. App. at 82, 461 

S.E.2d at 439-40.1

 In reaching this conclusion, we relied upon 

 

 1In Castell, two uniformed officers went to the defendant's 

house to arrest him on a felony warrant. The defendant's mother 

answered the door. She went to get the defendant, who appeared 

and stood about three feet from the officers. One officer asked 
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federal cases construing the federal statutory scheme governing 

the law of arrest and escape. However, we did not specifically 

analyze "custody" within the context of Virginia's law of arrest. 

 We do so now. 

 "With a few statutory exceptions, . . . the common law 

relating to arrest is the law on that subject in Virginia." 

Galliher v. Commonwealth, 161 Va. 1014, 1021, 170 S.E. 734, 736 

(1933). Under the common law, an arrest required either the 

application of physical force or, where that was absent, 

submission to the assertion of authority. California v. Hodari 

D., 499 U.S. 621, 626 (1991); Howard v. Commonwealth, 210 Va. 

674, 677, 173 S.E.2d 829, 832 (1970) ("Ordinarily, an arrest is 

made by the actual restraint of the person of the defendant or by 

his submission to the custody of an officer."). The immediate 

physical ability to arrest, without more, was not sufficient to 

effectuate an arrest. See Rollin M. Perkins, The Law of Arrest, 

25 Iowa L. Rev. 201, 206 (1940). 

 There can be no arrest [under the common law] 

without either touching or submission. 

Hence, if the officer pronounces words of 

arrest without an actual touching and the 

other immediately runs away, there is no 

escape (in the technical sense) because there 

was no arrest. It would be otherwise had the 

officer touched the arrestee for the purpose 

(..continued) 

identifying questions of appellant and informed him that he had a 

warrant for his arrest. The defendant asked why the warrant had 

been issued. The officer approached the defendant, reaching for 

his handcuffs with one hand and reaching to grab the defendant 

with the other. When the officer was within one inch of the 

defendant, the defendant turned and ran. Castell, 21 Va. App. at 

80, 461 S.E.2d at 439. 
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of apprehending him, because touching for the 

manifested purpose of arrest by one having 

lawful authority completes the apprehension, 

"although he does not succeed in stopping or 

holding him even for an instant." 

Id. (footnotes omitted). 

 In the present case, Lewis did not effectuate appellant's 

arrest; he neither touched appellant nor obtained appellant's 

submission to his show of authority. Each time Lewis spoke to 

appellant, appellant responded with profanity; when Lewis told 

appellant not to run, appellant responded that he was going to 

run, and he did. In short, the evidence shows that appellant did 

not submit, in any respect, to Lewis's show of authority, and 

appellant was not detained by the exercise of any physical 

restraint at the time he fled. Thus, we hold that appellant was 

not under arrest and, thus, was not in custody when he fled. In 

reaching this decision, we overrule the holding in Castell v. 

Commonwealth, 21 Va. App. 78, 461 S.E.2d 439 (1995) (en banc). 

 Finding that appellant was not in Lewis's custody at the 

time he ran, we reverse his conviction. 

 Reversed.