COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Beales and Senior Judge Annunziata UNPUBLISHED
Argued at Salem, Virginia
TONY LEON CHILDRESS MEMORANDUM OPINION* BY v. Record No. 2256-12-3 JUDGE ROBERT J. HUMPHREYS OCTOBER 15, 2013 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY Charles J. Strauss, Judge
James C. Martin (Martin & Martin Law Firm, on briefs), for appellant.
Craig W. Stallard, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.
Tony Leon Childress (“Childress”) appeals his conviction by a jury in the Pittsylvania
County Circuit Court (“trial court”) of attempted felony escape, in violation of Code § 18.2-478.
Childress’s single assignment of error is that the evidence was insufficient to demonstrate his
intent to escape. Despite conceding that he is bound by the factual finding that he caused the
property damage to the holding cell, Childress argues “there was a lack of proof as to [his] doing
whatever damage he did with an intent to escape.” He suggests that “[p]erhaps [he] only
intended to do property damage to spite his captors” or “had some other motive.” This argument
is unpersuasive. For the following reasons, this Court affirms Childress’s conviction.
This Court’s function is not to reweigh the credibility of the evidence when reviewing the
sufficiency of the evidence to support a conviction on appeal. See Couture v. Commonwealth,
51 Va. App. 239, 248, 656 S.E.2d 425, 429-30 (2008). Rather, the relevant inquiry is whether
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. “any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003)
(en banc) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). The conviction must stand
unless it is plainly wrong or without evidence to support it. Commonwealth v. McNeal, 282 Va.
16, 20, 710 S.E.2d 733, 735 (2011). Therefore, this Court may not disturb Childress’s conviction
unless no rational jury could have concluded that he had the intent required to convict him of
attempted felony escape.
The elements of felony escape in violation of Code § 18.2-478 are that the accused was in
lawful custody, pursuant to a written charge, and that he escaped from custody by force or
violence. Hubbard v. Commonwealth, 276 Va. 292, 295-96, 661 S.E.2d 464, 466-67 (2008). A
criminal attempt is composed of two elements: (1) the intent to commit the crime; and (2) a
direct, ineffectual act done towards the commission of the intended crime. Cuffee v.
Commonwealth, 61 Va. App. 353, 369, 735 S.E.2d 693, 701 (2013). Thus, to sustain a
conviction for attempted felony escape, the Commonwealth must prove beyond a reasonable
doubt that the defendant (1) intended to escape from lawful custody by force or violence, and
(2) committed a direct but ineffectual act in furtherance of escaping. See Bennett v.
Commonwealth, 35 Va. App. 442, 450, 546 S.E.2d 209, 213 (2001) (discussing attempted escape
in violation of Code § 18.2-479); see also Cuffee, 61 Va. App. at 369, 735 S.E.2d at 701
(discussing the elements of attempted malicious wounding).
“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). “‘[W]hether the required
intent exists is generally a question for the trier of fact.’” Cuffee, 61 Va. App. at 369, 735 S.E.2d
at 701 (quoting Nobles v. Commonwealth, 218 Va. 548, 551, 238 S.E.2d 808, 810 (1977)). “In
-2- determining whether the intent has been proven, the factfinder may consider the conduct of the
person involved and all the circumstances revealed by the evidence.” Wynn, 5 Va. App. at 292,
362 S.E.2d at 198. “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). Determining what inferences flow from proven facts is within the
province of the jury. Pease v. Commonwealth, 39 Va. App. 342, 361, 573 S.E.2d 272, 281
(2002). “If alternative inferences are possible, the jury resolves the differences and determines
which inferences are reasonably drawn.” Id. at 354-55, 573 S.E.2d at 278.
In this case, the jury was entitled to determine whether Childress had the specific intent to
escape from lawful custody by weighing the evidence and reasonable inferences that flow from
proven facts. The record supports the jury’s conclusion that Childress acted with the intent to
escape when he damaged the ceiling of the bathroom. As stated above, this Court is bound by
the factual determination that Childress caused the damage. The Commonwealth was not
required to disprove every possible reason why Childress might have made the hole in the
ceiling. See Holsapple v. Commonwealth, 39 Va. App. 522, 539, 574 S.E.2d 756, 764 (2003)
(en banc) (finding that the Commonwealth “is not required to disprove every remote possibility
of innocence, but is, instead, required only to establish guilt of the accused to the exclusion of a
reasonable doubt” (citations omitted)). In Hughes v. Commonwealth, 18 Va. App. 510, 522, 446
S.E.2d 451, 459 (1994), this Court explained that the Commonwealth is only required to exclude
hypotheses of intent that “reasonably flow from the evidence and not from the imagination of
defendant’s counsel.” In Hughes, the appellant argued that the Commonwealth failed to exclude
reasonable hypotheses that he may have abducted a child for an alternative reason than with the
specific intent to defile her. Id. This Court found that a rational fact finder could have excluded
-3- a hypothesis of alternative intent where there was “no basis in the evidence presented at trial.”
Id. at 523, 446 S.E.2d at 459.
Like the appellant’s arguments in Hughes, Childress’s alternative theories of intent are
“fanciful suggestion[s]” that have no basis in the evidence presented to the jury. Id. While
potential motivations for creating the damage other than for escape purposes are imaginable,
Childress offered no evidence of an alternative intent at trial. Further, even if alternative
inferences explaining Childress’s conduct existed, it was within the province of the jury to
determine what inferences are reasonable. See Pease, 39 Va. App. at 354-55, 573 S.E.2d at 278.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Beales and Senior Judge Annunziata UNPUBLISHED
Argued at Salem, Virginia
TONY LEON CHILDRESS MEMORANDUM OPINION* BY v. Record No. 2256-12-3 JUDGE ROBERT J. HUMPHREYS OCTOBER 15, 2013 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY Charles J. Strauss, Judge
James C. Martin (Martin & Martin Law Firm, on briefs), for appellant.
Craig W. Stallard, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.
Tony Leon Childress (“Childress”) appeals his conviction by a jury in the Pittsylvania
County Circuit Court (“trial court”) of attempted felony escape, in violation of Code § 18.2-478.
Childress’s single assignment of error is that the evidence was insufficient to demonstrate his
intent to escape. Despite conceding that he is bound by the factual finding that he caused the
property damage to the holding cell, Childress argues “there was a lack of proof as to [his] doing
whatever damage he did with an intent to escape.” He suggests that “[p]erhaps [he] only
intended to do property damage to spite his captors” or “had some other motive.” This argument
is unpersuasive. For the following reasons, this Court affirms Childress’s conviction.
This Court’s function is not to reweigh the credibility of the evidence when reviewing the
sufficiency of the evidence to support a conviction on appeal. See Couture v. Commonwealth,
51 Va. App. 239, 248, 656 S.E.2d 425, 429-30 (2008). Rather, the relevant inquiry is whether
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. “any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003)
(en banc) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). The conviction must stand
unless it is plainly wrong or without evidence to support it. Commonwealth v. McNeal, 282 Va.
16, 20, 710 S.E.2d 733, 735 (2011). Therefore, this Court may not disturb Childress’s conviction
unless no rational jury could have concluded that he had the intent required to convict him of
attempted felony escape.
The elements of felony escape in violation of Code § 18.2-478 are that the accused was in
lawful custody, pursuant to a written charge, and that he escaped from custody by force or
violence. Hubbard v. Commonwealth, 276 Va. 292, 295-96, 661 S.E.2d 464, 466-67 (2008). A
criminal attempt is composed of two elements: (1) the intent to commit the crime; and (2) a
direct, ineffectual act done towards the commission of the intended crime. Cuffee v.
Commonwealth, 61 Va. App. 353, 369, 735 S.E.2d 693, 701 (2013). Thus, to sustain a
conviction for attempted felony escape, the Commonwealth must prove beyond a reasonable
doubt that the defendant (1) intended to escape from lawful custody by force or violence, and
(2) committed a direct but ineffectual act in furtherance of escaping. See Bennett v.
Commonwealth, 35 Va. App. 442, 450, 546 S.E.2d 209, 213 (2001) (discussing attempted escape
in violation of Code § 18.2-479); see also Cuffee, 61 Va. App. at 369, 735 S.E.2d at 701
(discussing the elements of attempted malicious wounding).
“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). “‘[W]hether the required
intent exists is generally a question for the trier of fact.’” Cuffee, 61 Va. App. at 369, 735 S.E.2d
at 701 (quoting Nobles v. Commonwealth, 218 Va. 548, 551, 238 S.E.2d 808, 810 (1977)). “In
-2- determining whether the intent has been proven, the factfinder may consider the conduct of the
person involved and all the circumstances revealed by the evidence.” Wynn, 5 Va. App. at 292,
362 S.E.2d at 198. “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). Determining what inferences flow from proven facts is within the
province of the jury. Pease v. Commonwealth, 39 Va. App. 342, 361, 573 S.E.2d 272, 281
(2002). “If alternative inferences are possible, the jury resolves the differences and determines
which inferences are reasonably drawn.” Id. at 354-55, 573 S.E.2d at 278.
In this case, the jury was entitled to determine whether Childress had the specific intent to
escape from lawful custody by weighing the evidence and reasonable inferences that flow from
proven facts. The record supports the jury’s conclusion that Childress acted with the intent to
escape when he damaged the ceiling of the bathroom. As stated above, this Court is bound by
the factual determination that Childress caused the damage. The Commonwealth was not
required to disprove every possible reason why Childress might have made the hole in the
ceiling. See Holsapple v. Commonwealth, 39 Va. App. 522, 539, 574 S.E.2d 756, 764 (2003)
(en banc) (finding that the Commonwealth “is not required to disprove every remote possibility
of innocence, but is, instead, required only to establish guilt of the accused to the exclusion of a
reasonable doubt” (citations omitted)). In Hughes v. Commonwealth, 18 Va. App. 510, 522, 446
S.E.2d 451, 459 (1994), this Court explained that the Commonwealth is only required to exclude
hypotheses of intent that “reasonably flow from the evidence and not from the imagination of
defendant’s counsel.” In Hughes, the appellant argued that the Commonwealth failed to exclude
reasonable hypotheses that he may have abducted a child for an alternative reason than with the
specific intent to defile her. Id. This Court found that a rational fact finder could have excluded
-3- a hypothesis of alternative intent where there was “no basis in the evidence presented at trial.”
Id. at 523, 446 S.E.2d at 459.
Like the appellant’s arguments in Hughes, Childress’s alternative theories of intent are
“fanciful suggestion[s]” that have no basis in the evidence presented to the jury. Id. While
potential motivations for creating the damage other than for escape purposes are imaginable,
Childress offered no evidence of an alternative intent at trial. Further, even if alternative
inferences explaining Childress’s conduct existed, it was within the province of the jury to
determine what inferences are reasonable. See Pease, 39 Va. App. at 354-55, 573 S.E.2d at 278.
The Commonwealth’s evidence demonstrated that there was no damage to the cell before
Childress’s detainment. Childress was the only person to use the bathroom before officers
discovered the damage. During the twelve hours he was in the cell, he was in the bathroom
several times for long periods. Two individuals heard loud banging noises coming from the
bathroom while he was in there with the door closed. The noises stopped when an officer
identified himself and addressed Childress through the door. Officers discovered a large hole in
the ceiling within minutes of transferring Childress from the cell. The light fixture above the
sink had been removed and the wires replaced in the ceiling. This is not consistent with intent to
simply damage property. However, the removal of the light fixture is consistent with an intent to
gain physical access to the hole created. Considering the covert nature of Childress’s conduct,
the size and location of the damage, and the fact that the evidence revealed no other explanation
for why he created a one to two foot hole in the holding cell’s bathroom ceiling, reasonable
jurors could conclude beyond a reasonable doubt that his intention was to escape from custody.
Childress also argues that even if his intent to escape was demonstrated through
circumstantial evidence, it was “successfully rebutted by the statements which the prosecution
elicited from [him] during the sentencing phase.” He submits that the Commonwealth did “an
-4- end run around a pro se defendant’s right not to testify” by reopening the issue of guilt at the
sentencing phase. He argues without any supporting authority that because he “involuntarily”
gave an explanation for the property damage—he was trying to reach some girls in a nearby
cell—this Court should consider his statements in the interest of justice and fundamental
fairness.
The Commonwealth correctly argues that because sentencing hearings are separate
proceedings, the evidence presented at sentencing is not relevant to this Court’s determination of
whether the evidence considered by the jury in determining guilt was sufficient. See Kearney v.
Commonwealth, 36 Va. App. 106, 108, 549 S.E.2d 1, 2 (2001) (explaining that a defendant
cannot inject “residual doubt” about his guilt at the sentencing phase of the trial). Assuming
arguendo that this Court considered his statement that his intent was merely to reach some girls
in a nearby cell, that evidence is only further proof of his intent to escape from the cell.
This Court affirms the judgment of the trial court because the evidence supports a finding
that Childress intended to escape from lawful custody when he damaged the ceiling of the
holding cell’s bathroom.
Affirmed.
-5-