Catch Me Once, Catch Me Twice,
But Charging Me With Escape Ain’t Nice

If the cops got no papers on you, then run away! At least that is the import of Hubbard v. Commonwealth, 276 Va. 292, 661 S.E.2d 464 (2008). In that case, a state trooper tried to stop the defendant Hubbard’s car because the window tint was improper, and the defendant was not wearing a seatbelt.

When the trooper turned on his emergency lights, Hubbard sped away at 85 mph and led the trooper on a 10-mile chase that ended in a residential yard. Hubbard alighted from his vehicle and ran into a wooded area, where the trooper caught him. Hubbard punched, kicked, and elbowed the trooper as the troop er tried to handcuff him, prompting the trooper to command: “Stop resisting, you’re under arrest.” Hubbard broke free, and the trooper stopped his pursuit.

After Hubbard’s eventual arrest, he was charged with, among other things, felonious escape from custody under Va. Code Ann. § 18.2-478, which states it is a felony “if any person lawfully in the custody of any police officer on a charge of criminal offense escapes from such custody by force or violence…” (court’s emphasis).

The supreme court stated that the term “criminal charge” “clearly contemplates a formal accusation upon which a trial court could act and pass judgment.” 276 Va. at 296, 661 S.E.2d at 467 So., the court held that to sustain a conviction under § 18.2-478, there must be a written charge against the defendant at the time he is taken into custody, and probable cause to arrest the defendant is insufficient. Since there was no written charge against Hubbard when he evaded the trooper, he was not guilty.

Accordingly, while one should never punch, kick, or elbow a police officer arresting you, you can always run away. That’s creative nonviolence we can believe in.

Virginia Supreme Court Announces Carrico’s Theorem:
One Does Not Equal Two

In Nextel WIP Lease Corp. v. Saunders, 276 Va. 509, 666 S.E.2d 317 (2008), the plaintiff lessor brought a declaratory judgment action against the defendant lessee to enjoin the construction of a second communications tower atop a mountain in Bedford County. The plaintiff contended that the lease allowed only one tower, while the defendant argued it could build two. The trial court held that the lease was ambiguous and concluded from the extrinsic evidence that the defendant could only build one.

On appeal, the supreme court noted that the lease referred to the construction and maintenance of “towers” in two paragraphs but stated specifically in another that the lessee had the right to erect and maintain “one (1) tower” on the premises. 666 S.E.2d at 320.

The court stated that the reference to “towers” indicated that more than one could be constructed, but, as to the language limiting construction to “one (1) tower,” the court proudly announced what will be known in judicial circles as Carrico’s Theorem: “the usual, ordinary, and popular meaning of the word “one,” appearing in paragraph 17(a), is “one,” not “two.” Id. at 322 (quotation marks and citations omitted).

Since “one” does not equal “two,” the court held that the mountaintop lease was indeed ambiguous. The defendant argued that rather than admitting parol evidence the trial court should have asked whether the traditional rules of construction applied to the whole lease left a genuine uncertainty as to which of two or more possible meanings represents the parties’ true intent. If the words have an ordinary, plain meaning, the parol evidence should be inadmissible.

The supreme court, though, held that the contradiction in the language of the lease was such that it was impossible to know the true intent of the parties without extrinsic evidence. So, after a review of that evidence, the court held that the parties intended for only one tower to be constructed and enjoined the defendant’s construction of another.

Practitioner’s Note: when drafting a lease clearly define the meaning of “one” or “two” when those words are necessary to a clear understanding of the parties’ intent.