COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Annunziata and Bumgardner 

Argued at Norfolk, Virginia 

MAURICE KEVIN WILLIAMS 

 OPINION BY 

v. Record No. 0970-98-1 JUDGE ROSEMARIE ANNUNZIATA 

 MAY 18, 1999 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS 

Robert W. Curran, Judge 

(Kevin M. Diamonstein, on brief), for 

appellant. Appellant submitting on brief. 

Linwood T. Wells, Jr., Assistant Attorney 

General (Mark L. Earley, Attorney General, 

on brief), for appellee. 

Maurice K. Williams (“appellant”) appeals his bench trial 

conviction of misdemeanor escape in violation of Code 

§ 18.2-479, claiming the trial court erred in denying his motion 

to strike the Commonwealth’s evidence. Specifically, he 

contends Code § 18.2-479 requires the Commonwealth to prove the 

class of the offense for which he was in custody at the time of 

the escape. We disagree and affirm. 

I. 

BACKGROUND 

Appellant was an inmate at the Newport News City Farm at 

the time of the events material to this appeal. On October 14, 

1997, Lowell Gray, a correctional officer at the City Farm, was 
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supervising a work detail in the area of Thorncliff Drive in the 

City of Newport News. As a member of the detail, appellant was 

in Gray’s custody. At some point, Gray noticed that appellant 

was missing from the detail without permission to leave. Later 

that day, Gray located appellant in the Newport News lock-up 

after his recapture by the police. 

At trial, appellant presented no evidence but moved to 

strike the Commonwealth’s evidence, contending the Commonwealth 

failed to prove an essential element of the offense, to wit, 

whether he was incarcerated “on a charge or conviction of” a 

felony or a misdemeanor in accordance with Code § 18.2-479. The 

trial court overruled appellant’s motion and found appellant 

guilty of misdemeanor escape under Code § 18.2-479(A). The 

court reasoned that proof of custody at the time of the escape 

was sufficient to sustain a conviction under this code section 

and that evidence of the nature of the accused’s underlying 

offense was relevant only to prosecutions in which the 

Commonwealth sought to have the court impose enhanced punishment 

pursuant to Code § 18.2-479(B). 

II. 

LEGAL PRINCIPLES 

Code § 18.2-479 provides: 

A. 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 
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misdemeanor escapes, otherwise than by force 

or violence . . . , he shall be guilty of a 

Class 1 misdemeanor. 

B. 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 . . . , he shall be guilty of a 

Class 6 felony. 

Appellant asserts that, because Code § 18.2-479 

differentiates between individuals who escape while in custody 

on a misdemeanor conviction and those who escape while in 

custody on a felony conviction, proof of the nature of the 

accused’s underlying offense is an essential element of the 

offense and must be proved beyond a reasonable doubt. See

Ganzie v. Commonwealth, 24 Va. App. 422, 428, 482 S.E.2d 863, 

866 (1997); Bruce v. Commonwealth, 9 Va. App. 298, 301, 387 

S.E.2d 279, 280 (1990). We decline to adopt appellant’s 

construction of the statute. 

The issue of whether the Commonwealth must prove, as a 

necessary element of a conviction under Code § 18.2-479, the 

class of crime for which an accused has been placed in custody 

is one of first impression. As originally enacted, the offense 

underlying the accused’s custody was irrelevant to the 

prosecution of an escape charge, and the crime of escape without 
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force or violence was punishable only as a misdemeanor.1 The 

present version of Code § 18.2-479 was enacted in 1985. The 

statute as amended provided that the range of punishment imposed 

would be determined based on whether the accused’s underlying 

offense was a felony or a misdemeanor. Code § 18.2-479 has 

otherwise remained essentially unchanged through a series of 

amendatory actions.2

In its present form, the statute establishes two grades of 

the offense where, but for the penalty to be imposed, the 

elements to be proved are identical. Where the legislature has 

established two grades of an offense, differentiating them only 

 1 For example, until its most recent amendment in 1985, Code 

§ 18.2-479 provided: 

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 

criminal offense escape, otherwise than by 

force or violence . . . , he shall be guilty 

of a Class 2 misdemeanor. 

Code § 18.2-479 (1975). 

 2 For earlier versions of the statute at issue, see Code 

§ 18-253 (1950) (“If any person lawfully confined in jail on a 

charge or conviction of a criminal offense escape, otherwise 

than by force or violence . . . , he shall be confined in jail 

not less than thirty days nor more than six months.”), and Code 

§ 18.1-290 (1960) (“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 

criminal offense escape, otherwise than by force or violence 

. . . , he shall be confined in jail not exceeding six months, 

or be fined not exceeding five hundred dollars, or both.”). 
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on the basis of penalty, both this Court and the Supreme Court 

have held that proof of the element relevant to the enhanced 

penalty is not required except in those cases in which the 

enhanced penalty is imposed. In Knight v. Commonwealth, 225 Va. 

85, 300 S.E.2d 600 (1983), for example, the Virginia Supreme 

Court noted that, although “[t]he value of the goods specified 

in the grand larceny statute is an essential element of the 

crime,” “‘proof that an article has some value is sufficient to 

warrant a conviction of petit larceny, but where the value of 

the thing stolen determines the grade of the offense, the value 

must be alleged and the Commonwealth must prove the value to be 

the statutory amount.’” Id. at 88, 300 S.E.2d at 601 (quoting 

Wright v. Commonwealth, 196 Va. 132, 139, 82 S.E.2d 603, 607 

(1954)). See also Pittman v. Commonwealth, 17 Va. App. 33, 

34-35, 434 S.E.2d 694, 695 (1993) (stating that under Code 

§ 18.2-104(b), which provided for enhanced punishment for any 

third or subsequent conviction of concealing merchandise, “a 

crime that on the first or second commission is a misdemeanor, 

becomes a felony upon proof of the additional element of its 

commission being a third or subsequent such occurrence”). 

The 1985 amendment of Code § 18.2-479 changed only the 

grade of the offense and the attendant penalty. The offense 

underlying the custodial status of the accused has historically 

not been relevant to determining that a violation of the 
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substantive prohibition of the statute has occurred, viz., that 

the accused has escaped from the custody of a law enforcement 

officer. In light of the history of the statute and the 

reasoning applied in Knight, which we adopt here, we hold that 

proof of the underlying offense for which an accused is in 

custody is irrelevant to the determination of guilt, except in 

those cases in which the Commonwealth seeks enhanced punishment 

under Code § 18.2-479(B). 

Because an accused’s underlying offense is not an essential 

element of Code § 18.2-479 for the purpose of establishing 

guilt, and because appellant does not contest the sufficiency of 

the evidence as to the remaining elements of Code § 18.2-479, we 

find the evidence sufficient to sustain appellant’s conviction 

of misdemeanor escape under Code § 18.2-479(A) and affirm his 

conviction. 

 Affirmed.