COURT OF APPEALS OF VIRGINIA
Present: Judges Clements, Haley and Senior Judge Overton Argued at Richmond, Virginia
DEMARR MARQUI HARVEY MEMORANDUM OPINION* BY v. Record No. 0712-05-2 JUDGE JEAN HARRISON CLEMENTS JUNE 6, 2006 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF NEW KENT COUNTY Thomas B. Hoover, Judge
Jean M. McKeen (Fitzgerald, Tomlin & McKeen, PLLC, on briefs), for appellant.
Deana A. Malek, Assistant Attorney General (Robert F. McDonnell, Attorney General; John H. McLees, Senior Assistant Attorney General, on brief), for appellee.
Demarr Marqui Harvey (appellant) was convicted in a bench trial of attempted escape from
a correctional facility, in violation of Code §§ 18.2-26 and 53.1-203. On appeal, he contends the
evidence was insufficient to support his conviction. We disagree and affirm appellant’s conviction.
As the parties are fully conversant with the record in this case, and because this
memorandum opinion carries no precedential value, this opinion recites only those facts and
incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this
appeal.
I. BACKGROUND
Under familiar principles of appellate review, “[w]e view the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.”
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Agee v. Commonwealth, 40 Va. App. 123, 127, 578 S.E.2d 68, 69 (2003). “‘In so doing, we must
discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true
all the credible evidence favorable to the Commonwealth and all fair inferences that may be drawn
therefrom.’” Watkins v. Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998)
(quoting Cirios v. Commonwealth, 7 Va. App. 292, 295, 373 S.E.2d 164, 165 (1988)).
So viewed, the evidence established that, on August 6, 2004, officials at the Henrico County
Regional Jail East conducted a routine post-dinner head count of the inmates held in that facility.
Appellant was present in his assigned residential unit at the time. The inmates were subsequently
prohibited from leaving their assigned residential units for the remainder of the day.
Shortly after the head count, appellant left his assigned residential unit. Carrying a
pillowcase, facility-issued shirt, pocketknife, and set of keys, he exited the indoor portion of his
assigned unit and entered an outdoor recreational area attached thereto. After climbing over the
twelve-foot high concrete wall that enclosed the recreational area, appellant slid between the closed
gates of an adjacent razor-wired fence and entered a large outdoor recreational yard that served the
entire facility. Proceeding through the recreational yard, appellant entered a restricted area of the
secured facility that was off-limits to inmates.
After proceeding through the restricted area past three additional residential units, appellant
encountered a second razor-wired fence approximately two to three hundred yards from his
residential unit. Two more fences stood between that fence and a wooded area immediately outside
the secured perimeter of the facility. Headed in the direction of the wooded area, appellant grabbed
hold of the razor-wired fence and started to climb.
An official who was conducting perimeter checks of the facility observed appellant running
through the restricted area up to the second razor-wired fence. The official approached appellant as
he attempted to climb the fence and asked him where he was going. Appellant stated that he was
-2- going to see his daughter. The official summoned additional assistance, at which time appellant
jumped off the fence and started to run back toward his assigned unit. Eventually, appellant was
detained and taken to the medical unit for treatment of the razor-wire cuts observed on his ears. The
pillowcase, shirt, pocketknife, and set of keys were obtained from his person.
Appellant was convicted of attempted escape from a correctional facility, in violation of
Code §§ 18.2-26 and 53.1-203. This appeal followed.
II. ANALYSIS
Appellant contends the evidence presented at trial was insufficient to support his conviction
of attempted escape from a correctional facility. He maintains the evidence failed to prove he had
the intent to escape the facility or that he committed an act in furtherance of that intent. At best, he
argues, the evidence showed only that he was in an unauthorized area of the facility. We disagree.1
In reviewing the sufficiency of the evidence to support a conviction, “we determine whether
the evidence, viewed in the light most favorable to the prevailing party, the Commonwealth, and the
reasonable inferences fairly deducible from that evidence support each and every element of the
charged offense.” Haskins v. Commonwealth, 31 Va. App. 145, 149-50, 521 S.E.2d 777, 779
(1999). “We will not reverse the judgment of the trial court, sitting as the finder of fact in a bench
trial, unless it is plainly wrong or without evidence to support it.” Reynolds v. Commonwealth, 30
Va. App. 153, 163, 515 S.E.2d 808, 813 (1999).
1 Appellant also contends, on appeal, that the trial court erred in applying Code § 18.2-26, the attempt statute, to Code § 53.1-203 to convict him of attempted escape from a correctional facility. He argues that Code § 18.2-26 applies only to offenses listed in Title 18 and, thus, does not apply to the escape from a correctional facility offense set forth in Code § 53.1-203. Having failed, however, to make this claim before the trial court, appellant is barred from raising it for the first time on appeal. See Rule 5A:18; Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998) (“The Court of Appeals will not consider an argument on appeal [that] was not presented to the trial court.”). Moreover, our review of the record reveals no reason to invoke the “ends of justice” or “good cause” exceptions to Rule 5A:18. -3- “An attempt in criminal law is an apparent unfinished crime,” Glover v. Commonwealth, 86
Va. 382, 385, 10 S.E. 420, 421 (1889), and “is composed of two elements: the intention to commit
the crime, and the doing of some direct act towards its consummation which is more than mere
preparation but falls short of execution of the ultimate purpose,” Sizemore v. Commonwealth, 218
Va. 980, 983, 243 S.E.2d 212, 213 (1978). “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.” Wynn v. Commonwealth, 5 Va. App. 283, 292, 362 S.E.2d 193, 198 (1987). “The
specific intent in the person’s mind may, and often must, be inferred from that person’s conduct and
statements.” Martin v. Commonwealth, 13 Va. App.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Clements, Haley and Senior Judge Overton Argued at Richmond, Virginia
DEMARR MARQUI HARVEY MEMORANDUM OPINION* BY v. Record No. 0712-05-2 JUDGE JEAN HARRISON CLEMENTS JUNE 6, 2006 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF NEW KENT COUNTY Thomas B. Hoover, Judge
Jean M. McKeen (Fitzgerald, Tomlin & McKeen, PLLC, on briefs), for appellant.
Deana A. Malek, Assistant Attorney General (Robert F. McDonnell, Attorney General; John H. McLees, Senior Assistant Attorney General, on brief), for appellee.
Demarr Marqui Harvey (appellant) was convicted in a bench trial of attempted escape from
a correctional facility, in violation of Code §§ 18.2-26 and 53.1-203. On appeal, he contends the
evidence was insufficient to support his conviction. We disagree and affirm appellant’s conviction.
As the parties are fully conversant with the record in this case, and because this
memorandum opinion carries no precedential value, this opinion recites only those facts and
incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this
appeal.
I. BACKGROUND
Under familiar principles of appellate review, “[w]e view the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.”
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Agee v. Commonwealth, 40 Va. App. 123, 127, 578 S.E.2d 68, 69 (2003). “‘In so doing, we must
discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true
all the credible evidence favorable to the Commonwealth and all fair inferences that may be drawn
therefrom.’” Watkins v. Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998)
(quoting Cirios v. Commonwealth, 7 Va. App. 292, 295, 373 S.E.2d 164, 165 (1988)).
So viewed, the evidence established that, on August 6, 2004, officials at the Henrico County
Regional Jail East conducted a routine post-dinner head count of the inmates held in that facility.
Appellant was present in his assigned residential unit at the time. The inmates were subsequently
prohibited from leaving their assigned residential units for the remainder of the day.
Shortly after the head count, appellant left his assigned residential unit. Carrying a
pillowcase, facility-issued shirt, pocketknife, and set of keys, he exited the indoor portion of his
assigned unit and entered an outdoor recreational area attached thereto. After climbing over the
twelve-foot high concrete wall that enclosed the recreational area, appellant slid between the closed
gates of an adjacent razor-wired fence and entered a large outdoor recreational yard that served the
entire facility. Proceeding through the recreational yard, appellant entered a restricted area of the
secured facility that was off-limits to inmates.
After proceeding through the restricted area past three additional residential units, appellant
encountered a second razor-wired fence approximately two to three hundred yards from his
residential unit. Two more fences stood between that fence and a wooded area immediately outside
the secured perimeter of the facility. Headed in the direction of the wooded area, appellant grabbed
hold of the razor-wired fence and started to climb.
An official who was conducting perimeter checks of the facility observed appellant running
through the restricted area up to the second razor-wired fence. The official approached appellant as
he attempted to climb the fence and asked him where he was going. Appellant stated that he was
-2- going to see his daughter. The official summoned additional assistance, at which time appellant
jumped off the fence and started to run back toward his assigned unit. Eventually, appellant was
detained and taken to the medical unit for treatment of the razor-wire cuts observed on his ears. The
pillowcase, shirt, pocketknife, and set of keys were obtained from his person.
Appellant was convicted of attempted escape from a correctional facility, in violation of
Code §§ 18.2-26 and 53.1-203. This appeal followed.
II. ANALYSIS
Appellant contends the evidence presented at trial was insufficient to support his conviction
of attempted escape from a correctional facility. He maintains the evidence failed to prove he had
the intent to escape the facility or that he committed an act in furtherance of that intent. At best, he
argues, the evidence showed only that he was in an unauthorized area of the facility. We disagree.1
In reviewing the sufficiency of the evidence to support a conviction, “we determine whether
the evidence, viewed in the light most favorable to the prevailing party, the Commonwealth, and the
reasonable inferences fairly deducible from that evidence support each and every element of the
charged offense.” Haskins v. Commonwealth, 31 Va. App. 145, 149-50, 521 S.E.2d 777, 779
(1999). “We will not reverse the judgment of the trial court, sitting as the finder of fact in a bench
trial, unless it is plainly wrong or without evidence to support it.” Reynolds v. Commonwealth, 30
Va. App. 153, 163, 515 S.E.2d 808, 813 (1999).
1 Appellant also contends, on appeal, that the trial court erred in applying Code § 18.2-26, the attempt statute, to Code § 53.1-203 to convict him of attempted escape from a correctional facility. He argues that Code § 18.2-26 applies only to offenses listed in Title 18 and, thus, does not apply to the escape from a correctional facility offense set forth in Code § 53.1-203. Having failed, however, to make this claim before the trial court, appellant is barred from raising it for the first time on appeal. See Rule 5A:18; Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998) (“The Court of Appeals will not consider an argument on appeal [that] was not presented to the trial court.”). Moreover, our review of the record reveals no reason to invoke the “ends of justice” or “good cause” exceptions to Rule 5A:18. -3- “An attempt in criminal law is an apparent unfinished crime,” Glover v. Commonwealth, 86
Va. 382, 385, 10 S.E. 420, 421 (1889), and “is composed of two elements: the intention to commit
the crime, and the doing of some direct act towards its consummation which is more than mere
preparation but falls short of execution of the ultimate purpose,” Sizemore v. Commonwealth, 218
Va. 980, 983, 243 S.E.2d 212, 213 (1978). “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.” Wynn v. Commonwealth, 5 Va. App. 283, 292, 362 S.E.2d 193, 198 (1987). “The
specific intent in the person’s mind may, and often must, be inferred from that person’s conduct and
statements.” Martin v. Commonwealth, 13 Va. App. 524, 527, 414 S.E.2d 401, 402 (1992).
Furthermore, “where [specific] intent has been shown, any slight act done in furtherance of this
intent will constitute an attempt.” Fortune v. Commonwealth, 14 Va. App. 225, 229, 416 S.E.2d 25,
28 (1992). The requisite act “‘need not be the last proximate act to the consummation of the crime
in contemplation, but it is sufficient if it be an act apparently adopted to produce the result
intended.’” Bottoms v. Commonwealth, 22 Va. App. 378, 383, 470 S.E.2d 153, 156 (1996)
(quoting Granberry v. Commonwealth, 184 Va. 674, 678, 36 S.E.2d 547, 548 (1946)).
Viewed in the light most favorable to the Commonwealth, the evidence presented in this
case proved the requisite elements of attempted escape, namely, that appellant intended to escape
from the correctional facility in which he was incarcerated and that he committed an act apparently
adopted to produce the result intended. The evidence established that, carrying items that could
facilitate an escape, appellant impermissibly left his assigned unit, climbed a twelve-foot high wall
attached thereto, and slid between the closed gates of an adjacent razor-wired fence. He then ran
two to three hundred yards toward a wooded area that lay immediately outside the secured facility,
entered an area of the facility that was off-limits to inmates, and started to climb the first of three
remaining fences that separated him from that wooded area. When confronted by an official as he
-4- was climbing the fence, appellant stated that he was going to see his daughter. When the official
called for additional assistance, appellant attempted to flee, but was chased and ultimately detained.
Acting as fact finder, the trial court could properly infer from appellant’s statement to the
official and his egregious conduct that he had the specific intent to escape the facility and that he
had committed a series of acts aimed at the consummation of that escape. Although appellant had
not yet reached the final fence separating the secured facility from the wooded area, the combined
acts he had committed, beginning with his leaving his assigned residential unit and culminating in
his attempt to climb one of the last three remaining fences within the facility’s secured perimeter,
clearly transcended mere preparation and were performed in furtherance of the exclusive purpose of
escaping the facility.
We hold, therefore, that the evidence was sufficient to support appellant’s conviction of
attempted escape from a correctional facility, in violation of Code §§ 18.2-26 and 53.1-203.
Accordingly, we affirm appellant’s conviction.
Affirmed.
-5-