COURT OF APPEALS OF VIRGINIA
Present: Judges Ortiz, Chaney and Senior Judge Haley UNPUBLISHED
Argued by videoconference
NICHOLAS LAMONT TURNER MEMORANDUM OPINION* BY v. Record No. 0615-22-2 JUDGE DANIEL E. ORTIZ JULY 18, 2023 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LANCASTER COUNTY R. Michael McKenney, Judge
Diane M. Lank (Diane M. Lank, PLC, on brief), for appellant.
Matthew P. Dullaghan, Senior Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
Following a bench trial, Nicholas Lamont Turner appeals his convictions of two counts of
felony eluding and felony destruction of property. He argues that the trial court abused its
discretion in admitting preliminary hearing testimony from a witness that did not appear at trial,
erred in finding that he failed to establish an affirmative defense of duress, and erred in finding
the evidence sufficient to support the two eluding convictions. For the following reasons, we
disagree and affirm the convictions.
BACKGROUND
On September 15, 2020, around 11:00 p.m., Lancaster County Sheriff’s Deputy T.O. Turner
(“Deputy Turner”)1 was on patrol when dispatch told him to lookout for a silver sedan. A vehicle
matching the description raced by him going 79 miles per hour in a posted 55 mile-per-hour zone.
* This opinion is not designated for publication. See Code § 17.1-413(A). 1 No relation to Nicholas Turner. Deputy Turner activated his emergency equipment and maneuvered his vehicle to pursue the car.
The silver sedan, driven by Nicholas Turner, continued along Route 200 and accelerated to speeds
of 89 miles per hour. After several minutes, Deputy Turner lost sight of the vehicle and requested
backup. When he could not locate the vehicle, Deputy Turner disengaged his pursuit and returned
to the Sheriff’s Office.
Meanwhile, Kilmarnock police officers and Virginia State Trooper Shane Hammell
responded to the backup request and located the silver sedan traveling southbound on Route 200.
Trooper Hammell activated his emergency lights and sirens, but Turner did not stop. Trooper
Hammell pursued Turner through dark winding roads while appellant traveled up to 95 miles per
hour.
Deputy Turner learned that the suspect vehicle was near Carlton Road and changed course
to that location. Upon arriving, he saw the same silver sedan fleeing Trooper Hammell. He
resumed pursuit behind Trooper Hammell, about 15 to 20 minutes after first losing sight of the
sedan. Meanwhile, Nicholas Turner sped into Northumberland County at more than 80 miles per
hour, crossed the double-yellow center line, and drove into oncoming traffic, causing another
deputy—who was driving towards the appellant’s vehicle—to swerve into a ditch to avoid a
head-on collision.
Trooper Hammell then followed Turner into a residential area, where Turner swerved
around a residence and over a rock feature in the front yard. Trooper Hammell drove over the same
feature and damaged his vehicle, causing him to collide with the rear of the sedan. The sedan spun
out into the yard, while Trooper Hammell’s vehicle stopped in the roadway.
Turner, wearing a blaze orange stocking cap and dreadlocks, ran towards the marshland
behind the residence. Meanwhile, the front seat passenger, a male with “puffy hair” later identified
as Miles Sanders, remained in the vehicle. Trooper Hammell initially pursued Turner but stopped
-2- for safety reasons. When he returned to the crash, he observed Sanders running across the front
porch of a residence. However, Trooper Hammell remained with the sedan until backup arrived, as
a female passenger—later identified as Kristen Parker—remained by the vehicle. Sanders was
apprehended after backup arrived. He possessed marijuana, a loaded semiautomatic firearm, and
ammunition.
Before trial, the Commonwealth moved to declare witness Miles Sanders unavailable and
admit his preliminary hearing testimony. The Commonwealth introduced, without objection, a
return-to-court slip signed by Sanders indicating that he would testify at trial. The Commonwealth
then called Sanders’ attorney, Grant Spears, to testify. Spears testified that he and Sanders had
discussed planning for Sanders to appear at trial. Sanders informed Spears the evening before trial
that he “had not yet found a method to travel here and would update” Spears. The next morning,
before the trial started, Sanders told Spears that he “had been unable to arrange for transportation
from Baltimore” and “was still waiting for the results of a COVID test.” Spears admitted that he
never asked the Commonwealth for assistance securing transportation and the Commonwealth did
not offer any aid. Turner objected to using Sanders’ preliminary hearing testimony. The trial court
found that the Commonwealth undertook the necessary precautions to secure Sanders’ appearance.
It found Sanders unavailable as a witness and admitted the preliminary hearing transcript.
Spears took the stand and read the transcript of Sanders’ prior testimony. Sanders testified
that Turner was driving on September 15 when they passed an officer who activated his lights and
sirens. Turner extinguished his headlights and kept driving. Five minutes later, Sanders saw more
police lights in front of and behind the vehicle. Turner, however, did not stop. Sanders asked
Turner to let him out of the vehicle, but Turner refused. Sanders admitted that there was a woman
in the vehicle, but he did not know her name. Sanders noted that the woman also asked Turner to
stop, but Turner remained silent. Sanders explained that when the vehicle crashed, he exited and
-3- hid in some nearby bushes. On cross-examination, Sanders admitted that he had a gun on his
person, ammunition in his sock, and marijuana in his pocket. Sanders, however, denied pointing the
gun at Turner and demanding that Turner keep driving.
When the police arrested Turner on October 6, he admitted that he was driving the vehicle
on September 15. The chase lasted 90 minutes through Lancaster County, Northumberland County,
Richmond County, and ended when the vehicle crashed back in Lancaster County. The parties
stipulated that the cost of the damage to Trooper Hammell’s patrol vehicle was eight to nine
thousand dollars. Turner moved to strike the charges, but the trial court denied his motion.
Parker testified that while Turner and Sanders were driving her home, they informed her that
they were going to purchase marijuana before dropping her off. Parker noted that although Turner
was her cousin’s boyfriend, she did not know his nor Sanders’ name. As the trio drove, she noticed
police lights. Turner asked Parker if she could drive because his license was suspended, but she
declined. Sanders then drew two guns, pointed one at Turner, and told him to continue driving or he
would hurt everyone in the vehicle. Turner continued driving while at gunpoint. When the vehicle
crashed, Parker exited, ran a few feet, and laid in the field. When officers found her, she told them
about Sanders’ threats. On cross-examination, Parker admitted that she had been involved in a
similar police chase that also ended in a crash. Parker admitted that while incarcerated for an
unrelated offense, she called Turner. During that conversation, played for the court, Turner said that
he “hoped that [Parker] come to court on his behalf.”
Testifying in his own defense, Turner stated that his girlfriend told him to take her vehicle
and drive her cousin, Parker, home. Turner and Sanders picked Parker up and then went to meet his
marijuana supplier in Kilmarnock. Before arriving, Turner saw the police lights and turned onto a
street, intending to stop. He asked Parker to drive because his license was suspended but Sanders
pulled two guns from his vest and told him not to stop. Sanders said, “[t]his one’s dirty,” which
-4- Turner understood to mean that Sanders had used the weapon to commit a crime. When Turner
stopped at a stop sign, Sanders said, “I ain’t playing, keep going, I ain’t going down for this” and
threatened to shoot Parker.
Turner testified that when the vehicle malfunctioned, Sanders ordered him to go to a
location where Sanders could run and dispose of the guns and threatened to shoot the police if
Turner refused. Turner claimed that he “entered a PTSD psychotic episode.” He testified that he
had difficulty controlling the vehicle and that he accidentally turned the lights off and swerved into
oncoming traffic. When he crashed, he believed that Sanders was going to shoot the police, so he
ran. He bolted behind a residence, fell in water, and collapsed on the other side of the creek. Scared
that Sanders and the police were engaged in a shootout, Turner stayed there until daybreak. On
cross-examination, Turner admitted that he had eight felony convictions. He also acknowledged
that he was driving and that Sanders did not give him turn-by-turn directions.
The Commonwealth recalled Trooper Hammell and Deputy Turner. Trooper Hammell
testified that he was involved in another car chase through Lancaster with Parker as a passenger.
After that vehicle crashed, Trooper Hammell helped Parker out of the wreckage and she explained
that she told the driver to stop. At Nicholas Turner’s crash, Deputy Turner testified that Parker told
him both the driver and the passenger possessed guns and “[i]f she told the police anything that they
would kill her.”
The trial court found that both Sanders and Parker were not credible, but that Deputy Turner
was credible. It determined that Parker knew Nicholas Turner, despite her claims to the contrary.
Turner admitted that he was driving on a suspended license and that he did not stop the vehicle
immediately. Additionally, while skeptical that Turner was ever at gunpoint, the trial court accepted
“for just a moment” that Sanders threatened him with a gun but found that Turner could have ended
the chase safely. It noted that Turner was surrounded by four police officers and stated: “[h]ad
-5- Mr. Turner stopped then and exited the vehicle, he would have had the benefit of at least four law
enforcement officers in place to protect him and the passenger from any threat that Mr. Sanders may
have presented to him.” Finally, it found that Turner was not under duress.
As a result, the trial court found that Turner eluded both Trooper Hammell and Deputy
Turner and that, because of his driving, Turner caused damage to Trooper Hammell’s patrol vehicle.
The trial court found Turner guilty of two felony offenses of eluding and felony destruction of
property. Turner appeals.
ANALYSIS
“On appeal, we review the evidence in the ‘light most favorable’ to the Commonwealth.”
Clanton v. Commonwealth, 53 Va. App. 561, 564 (2009) (en banc) (quoting Commonwealth v.
Hudson, 265 Va. 505, 514 (2003)). That principle requires us to “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.” Kelly v.
Commonwealth, 41 Va. App. 250, 254 (2003) (en banc) (quoting Watkins v. Commonwealth, 26
Va. App. 335, 348 (1998)).
I. The trial court did not err in admitting Sanders’ preliminary hearing testimony.
This Court reviews a trial court’s decision to admit evidence under an abuse of discretion
standard. Blankenship v. Commonwealth, 69 Va. App. 692, 697 (2019). Turner argues that the
trial court erred in admitting Sanders’ preliminary hearing testimony. He contends that the
Commonwealth failed to establish Sanders’ unavailability, as it did not exercise due diligence in
attempting to secure Sanders’ presence at trial. He further claims that Sanders’ absence deprived
him of “the opportunity to inquire fully of Mr. Sanders about the circumstances and his admission
that he had a weapon in the vehicle.” This deprivation, he argues, prevented him from fully
presenting his defense of duress.
-6- Our Supreme Court has held that:
[T]he preliminary hearing testimony of a witness who is absent at a subsequent criminal trial may be admitted into evidence if the following conditions are satisfied: (1) that the witness is presently unavailable; (2) that the prior testimony of the witness was given under oath (or in a form of affirmation that is legally sufficient); (3) that the prior testimony was accurately recorded or that the person who seeks to relate the testimony of the unavailable witness can state the subject matter of the unavailable witness’s testimony with clarity and in detail; and (4) that the party against whom the prior testimony is offered was present, and represented by counsel, at the preliminary hearing and was afforded the opportunity of cross-examination when the witness testified at the preliminary hearing.
Longshore v. Commonwealth, 260 Va. 3, 3-4 (2000); see also Va. R. Evid. 2:804(b). Certain
hearsay statements, including former testimony, can be admitted at trial if “the declarant is dead
or otherwise unavailable as a witness.” Va. R. Evid. 2:804(a). “Where unavailability is
premised upon a witness’ absence from trial, the party offering the prior testimony must
demonstrate the exercise of due diligence and reasonable efforts to obtain the presence of the
witness.” Morgan v. Commonwealth, 50 Va. App. 369, 375 (2007). The trial court must
determine, in its discretion, whether the party seeking to introduce the evidence has shown that it
exercised due diligence to secure the witness’s attendance. Cooper v. Commonwealth, 26
Va. App. 537, 542-43 (1998). Even if “the efforts of the [party offering the statement] do not
measure up to a high degree of diligence, . . . it is well settled that the sufficiency of the proof to
establish the unavailability of a witness is largely within the discretion of the trial court.” Burton
v. Oldfield, 195 Va. 544, 550 (1954).
“Due diligence is that amount of prudence ‘as is properly to be expected from, and
ordinarily exercised by, a reasonable and prudent man under the particular circumstances.’”
McDonnough v. Commonwealth, 25 Va. App. 120, 128 (1997) (quoting Due Diligence, Black’s
Law Dictionary (6th ed. 1990)). “Due diligence requires only a good faith, reasonable effort; it
-7- does not require that every possibility, no matter how remote, be exhausted.” Cooper, 26
Va. App. at 542 (quoting McDonnough, 25 Va. App. at 129). “We hold, however, that due
diligence requires, at a minimum, that a party attempt to subpoena the witness or provide a
reasonable explanation why a subpoena was not issued.” McDonnough, 25 Va. App. at 129.
Here, the record established that Sanders signed a return-to-court slip after his
preliminary hearing testimony. The Commonwealth coordinated with Sanders’ attorney, Spears,
to secure his presence at trial. The Commonwealth only learned on the morning of the trial that
Sanders would not attend. The record demonstrates that the Commonwealth met the basic
requirement of serving Sanders while he was still in court and that it made reasonable efforts to
secure Sanders’ presence. See id. Because Sanders’ preliminary hearing testimony was under
oath, properly recorded, and subject to cross-examination, the trial court did not err in admitting
Sanders’ testimony.
II. The evidence was sufficient to support Turner’s convictions.
“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)). “In such cases, ‘[t]he Court does
not ask itself whether it believes that the evidence at the trial established guilt beyond a
reasonable doubt.’” Id. (alteration in original) (quoting Secret v. Commonwealth, 296 Va. 204,
228 (2018)). “Rather, the relevant question is whether ‘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
-8- the finder of fact at the trial.’” McGowan, 72 Va. App. at 521 (quoting Chavez v.
Commonwealth, 69 Va. App. 149, 161 (2018)).
A. The trial court was not plainly wrong in rejecting Turner’s affirmative defense of duress.
Turner argues that the evidence supports a finding that he was in reasonable fear of
imminent death or serious bodily injury during the police chase. Turner contends that
“uncontroverted testimony” by himself and Parker showed that Sanders threatened them with
two guns. Turner further argues that the trial court mistakenly found that, even if Turner was
subject to duress, he had an opportunity to escape and seek protection when police officers were
present.
“The sole responsibility to determine the credibility of witnesses, the weight to be given
to their testimony, and the inferences to be drawn from proven facts lies with the fact finder.”
Blankenship v. Commonwealth, 71 Va. App. 608, 619 (2020) (quoting Ragland v.
Commonwealth, 67 Va. App. 519, 529-30 (2017)). The fact finder’s conclusions “on issues of
witness credibility may be disturbed on appeal only when . . . the witness’ testimony was
‘inherently incredible, or so contrary to human experience as to render it unworthy of belief.’”
Ashby v. Commonwealth, 33 Va. App. 540, 548 (2000) (quoting Fisher v. Commonwealth, 228
Va. 296, 299 (1984)). “In all other cases, we must defer to the conclusions of ‘the fact finder[,]
who has the opportunity of seeing and hearing the witnesses.’” Id. (quoting Schneider v.
Commonwealth, 230 Va. 379, 382 (1985)).
“The ‘reasonable hypothesis of innocence’ concept is also well defined. The
Commonwealth need exclude only reasonable hypotheses of innocence that ‘flow from the
evidence itself, and not from the imagination’ of the defendant.” Kelley v. Commonwealth, 69
Va. App. 617, 629 (2019) (quoting Pijor v. Commonwealth, 294 Va. 502, 512 (2017)). Simply
“because [a] defendant’s theory of the case differs . . . does not mean that every reasonable -9- hypothesis consistent with his innocence has not been excluded.” Ray v. Commonwealth, 74
Va. App. 291, 308 (2022) (first alteration in original) (quoting Edwards v. Commonwealth, 68
Va. App. 284, 301 (2017)). The fact finder must decide what weight the evidence should be
given. Id. “While a factfinder may not arbitrarily disregard a reasonable doubt, whether ‘the
hypothesis of innocence is reasonable is itself a “question of fact,” subject to deferential
appellate review.’” Burton v. Commonwealth, 58 Va. App. 274, 285-86 (2011) (quoting
Clanton, 53 Va. App. at 572). “By finding [a] defendant guilty, therefore, the factfinder ‘has
found by a process of elimination that the evidence does not contain a reasonable theory of
innocence.’” Ray, 74 Va. App. at 308 (alteration in original) (quoting Edwards, 68 Va. App. at
301).
“Duress excuses criminal behavior ‘where the defendant shows that the acts were the
product of threats inducing a reasonable fear of immediate death or serious bodily injury.’”
Arnold v. Commonwealth, 37 Va. App. 781, 787 (2002) (quoting Graham v. Commonwealth, 31
Va. App. 662, 674 (2000)). A defendant asserting the defense of duress, “must show that the
threat . . . was coupled with evidence that he ‘reasonably believed that participation in the crime
was the only way to avoid the threatened harm.’” Graham, 31 Va. App. at 675 (quoting Roger
D. Groot, Criminal Offenses and Defenses 181 (4th ed. 1999)). “Vague threats of future harm,
however alarming, will not suffice to excuse criminal conduct.” Pancoast v. Commonwealth, 2
Va. App. 28, 33 (1986). And a defendant may not rely on duress as a defense if he failed to take
advantage of a reasonable opportunity to avoid doing the criminal acts without being harmed.
Graham, 31 Va. App. at 675.
Here, the trial court considered and rejected Turner’s affirmative defense of duress. The
trial court did not find credible Turner’s or Parker’s testimony that Sanders held Turner at
gunpoint. The trial court noted that even if Turner was held at gunpoint, he could have stopped
- 10 - his vehicle when he was surrounded by four patrol vehicles. Because Turner continued to evade
the officers and did not take advantage of the opportunity to escape, the trial court found that
Turner failed to prove duress.
In finding that Turner had an opportunity to escape, the trial court simply provided an
alternative reason for rejecting Turner’s defense of duress. Even if we find this alternative
reason unpersuasive, we cannot disturb the trial court’s explicit finding that Turner and Parker’s
testimony was not “particularly credible.” The trial court’s rejection of this testimony was not
arbitrary. At the preliminary hearing, Sanders testified that he did not threaten Turner and
Parker. More importantly, the trial court relied on Deputy Turner, who testified that Parker had
told him immediately after the chase that if “she told the police anything[,] they would kill her.”
(Emphasis added). Finally, the trial court noted that Turner claimed that Sanders had two guns,
while the police only found one. Because sufficient evidence supported the trial court’s finding
that Turner did not act under duress, we will not disturb this decision on appeal.
B. The evidence was sufficient to support a finding of two separate eluding acts.
Turner argues that the evidence established, at most, one continuing offense instead of
two separate acts of eluding. He contends that the charges differ only in the dates of the offense
and argues that the difference is meaningless, as the chase began late in the evening on
September 15, 2020, and ended in the early morning hours of September 16, 2020. Additionally,
Turner emphasizes that the trial court continuously referred to the offense of eluding, using the
singular offense rather than plural offenses. Finally, Turner argues that he did not “endanger[]
the operation of the law enforcement vehicle or endanger[] a person during the first part of the
chase.”
Any person who, having received a visible or audible signal from any law-enforcement officer to bring his motor vehicle to a stop, drives such motor vehicle in a willful and wanton disregard of such signal so as to interfere with or endanger the operation of - 11 - the law-enforcement vehicle or endanger a person is guilty of a Class 6 felony.
Code § 46.2-817(B).
“No person shall . . . be subject for the same offence to be twice put in jeopardy of life or
limb.” U.S. Const. amend. V. “Subjecting an accused to multiple punishments for the same
offense violates both state and federal constitutional protections against double jeopardy.”
Roach v. Commonwealth, 51 Va. App. 741, 748 (2008). However, “[t]he Double Jeopardy
Clause is not abridged if an accused is subjected to punishment for two offenses that are
supported by separate and distinct acts.” Id. Thus, the trial court did not violate the Double
Jeopardy Clause if Turner’s acts constituted two eluding offenses rather than one continuing
offense.
“A continuing offense is a continuous, unlawful act or series of acts set on foot by a
single impulse and operated by an unintermittent force, however long a time it may occupy.”
Hodnett v. Commonwealth, 56 Va. App. 234, 237 (2010) (quoting Thomas v. Commonwealth, 38
Va. App. 319, 324 (2002)). “In determining whether the conduct underlying the convictions is
based upon the ‘same act,’ the particular criminal transaction must be examined to determine
whether the acts are the same in terms of time, situs, victim, and the nature of the act itself.”
Hall v. Commonwealth, 14 Va. App. 892, 898 (1992); see Carter v. Commonwealth, 16 Va. App.
118, 129 (1993) (focusing on “factors such as the: nature of the act or acts; time; place; intent;
possibility of cumulative punishment; and, number of victims,” but cautioning that the list “is not
exhaustive and the [fact finder] may properly consider the victim’s subjective understanding of
the circumstances, along with all the other evidence presented” when determining “whether the
conduct constituted a single offense or multiple offenses”).
Here, after observing the silver sedan exceed the speed limit, Deputy Turner activated his
lights and attempted to conduct a traffic stop. Turner did not stop and, instead, extinguished his - 12 - headlights to avoid detection. Deputy Turner, being unable to find the vehicle on the dark roads,
disengaged his pursuit. At that time, the first eluding was complete. When Turner believed the
officers were gone, he reactivated his headlights. Minutes later, Trooper Hammell observed
Turner’s car and activated his lights and sirens. Turner again disregarded the signals to stop and
fled from the police for over an hour. At that time, the second eluding was complete. Although
Turner drove continuously between the two chases, his failure to stop for Trooper Hammell was
not a continuation of his failure to stop for Deputy Turner. Instead, the second act involved a
new formation and execution of purpose. Thus, the evidence supports the trial court’s finding
that Turner committed two separate and distinct acts of eluding.
In a felony eluding offense, “the object of the endangerment can be the driver himself,
the police officer, or anyone else on the road that could be put at risk from the driver’s eluding.”
Coleman v. Commonwealth, 52 Va. App. 19, 24 (2008). “That the exposure to danger does not
result in any actual harm is a welcome fortuity, but not a legal defense.” Id. Here, a rational fact
finder could find beyond a reasonable doubt that Turner’s driving after the officers’ commands
to stop endangered Turner, his passengers, and any others on the road that night. Turner
disregarded Deputy Turner’s signal and extinguished his lights at night on dark winding roads.
When he believed the deputy had disengaged, he reactivated his headlights. When Trooper
Hammell attempted to stop Turner, he again disregarded the officer’s signal and continued to
drive for an hour. His erratic speed ranged from 79 to 95 miles per hour through winding back
roads and residential neighborhoods late at night. At one point in the chase, Turner almost
collided with a sheriff’s deputy traveling in the opposite direction. After attempting to drive
around a home, Turner’s driving damaged Trooper Hammell’s patrol vehicle, causing it to
collide with Turner’s car.
- 13 - The totality of the evidence amply supports the trial court’s conclusion that Turner’s
hour-long chase endangered himself, his passengers, the police officers, and anyone else on the
road. The trial court was not plainly wrong in finding Turner guilty of two counts of felony
eluding.
CONCLUSION
We find that the trial court did not abuse its discretion in admitting Sanders’ preliminary
hearing testimony and that the evidence was sufficient to support Turner’s two felony eluding
convictions. Accordingly, we affirm the trial court’s judgment.
Affirmed.
- 14 -