Gregory D. Cook, Jr., s/k/a Gregory Darnell Cook, Jr. v. Commonwealth of Virginia ( 2023 )

COURT OF APPEALS OF VIRGINIA
Present: Judges O’Brien, Ortiz and Raphael
UNPUBLISHED
Argued at Richmond, Virginia
GREGORY D. COOK, JR., S/K/A
GREGORY DARNELL COOK, JR.
MEMORANDUM OPINION* BY
v. Record No. 0400-22-2 JUDGE STUART A. RAPHAEL
MARCH 7, 2023
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
David E. Johnson, Judge
Todd M. Ritter (Hill & Rainey, on brief), for appellant.
Justin B. Hill, Assistant Attorney General (Jason S. Miyares,
Attorney General, on brief), for appellee.
Gregory D. Cook, Jr. appeals his convictions for carrying a concealed weapon and felony
eluding. He argues that the firearm was not concealed because it was plainly visible on the
driver’s-side floorboard of his car. And he asserts that he did not elude police because the chase
lasted only 11 seconds. Finding the evidence sufficient to support both convictions, we affirm.
BACKGROUND
On appeal, we recite the facts “in the ‘light most favorable’ to the Commonwealth, the
prevailing party in the trial court.” Hammer v. Commonwealth, 74 Va. App. 225, 231 (2022)
(quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). Doing so requires that we “discard”
the defendant’s evidence when it conflicts with the Commonwealth’s evidence, “regard as true
all the credible evidence favorable to the Commonwealth,” and read “all fair inferences” in the
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Commonwealth’s favor. Cady, 300 Va. at 329 (quoting Commonwealth v. Perkins, 295 Va. 323,
324 (2018)).
Around midnight on April 14, 2021, Officer Butts and Officer Fisher, a trainee, were on
patrol in their cruiser when they received a message that Lieutenant Aronson had spotted an
unregistered car nearby. Butts and Fisher spotted the car exiting a Wawa parking lot, rolling
through a stop sign to make a right-hand turn. They followed the vehicle, which then made
another right-hand turn without stopping at the red light. Butts activated the police cruiser’s
emergency lights. “[A]s soon as” he did so, Cook, the driver of the car, “turned back into the
Wawa parking lot.” Butts estimated the distance to the parking lot from where he activated his
lights to be “100 feet, 200 feet maybe.” Cook then accelerated. Fisher activated the cruiser’s
siren and drove 40 to 50 miles per hour in pursuit. There were pedestrians in the Wawa parking
lot and cars parked around the store and at the gas pumps. Cook again exited the parking lot,
failed to stop at the same stop sign, and finally came to a stop in the middle of the road. About
11 seconds elapsed from the time the cruiser’s lights were illuminated until Cook stopped his car
and the officers exited their vehicle.
By that point, five or six officers had arrived. The officers conducted a felony traffic
stop, drawing their service weapons and ordering Cook to get out of the car. He did not respond
right away. After 30 to 60 seconds, Cook exited the car, obeyed the officers’ commands, and
was taken into custody. The passenger, M.B., also exited through the driver’s-side door. She
testified at trial that the passenger door was not working.
The driver’s-side door of Cook’s car was left open, and when Butts and Fisher
approached, they saw a handgun on the driver’s-side floorboard. After securing the gun, Fisher
read Cook his Miranda1 rights. Cook said that he did not stop right away because he had not
1
Miranda v. Arizona, 384 U.S. 436 (1966).
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seen the officers. He also volunteered that he thought the gun was under his seat. Officer
Morris, who assisted with the felony traffic stop, searched the area under the driver’s seat and
found .22-caliber rounds.
At his bench trial, Cook testified in his defense that he did not see the police cruiser with
its lights and sirens on until he was in the Wawa parking lot. Cook insisted that he could not
have driven faster than 35 miles per hour because the parking lot had speed bumps and his car
was a stick-shift. Still, Cook’s counsel acknowledged in closing argument, “We would agree it
certainly [was] reckless driving.” He added that Cook had to get “the vehicle to come to a stop
that is doing 35 to 45 an hour without slamming on the brakes.”
M.B. testified that when Cook picked her up earlier that evening, she saw the gun in the
passenger seat and “pushed it over, like in the same seat.” When Cook was stopped by police,
she moved the gun to the driver’s-side floorboard because she “didn’t want it anywhere near
[her] when [they] got pulled over.” On cross-examination, M.B. admitted that she had told the
officers that Cook had been drinking the night of the incident and that, when he saw the officers
following him, Cook exclaimed, “oh shit, it’s the cops.”
The trial court found Cook guilty of felony eluding (Code § 46.2-817); carrying a
concealed weapon, third conviction (Code § 18.2-308); driving on a revoked license (Code
§ 46.2-301); operating a vehicle without registration (Code § 46.2-613); and failing to stop at a
stop sign (Code § 46.2-821). On appeal, Cook challenges only his eluding and concealed-
weapon convictions. Cook was sentenced to five years’ incarceration on the eluding conviction,
with four years and eleven months suspended, and ten years’ incarceration for the concealed-
weapon conviction, with nine years and three months suspended.2
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Cook received a total prison sentence of 15 years and 6 months, with 13 years and 20
months suspended.
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ANALYSIS
“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
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 evidence sufficed to show that Cook possessed a concealed weapon
(Assignment of Error 1).
It is unlawful for a person to “carr[y] about his person, hidden from common observation,
. . . any pistol, revolver, or other weapon designed or intended to propel a missile of any kind by
action of an explosion of any combustible material.” Code § 18.2-308. A third or subsequent
violation of the statute is punishable as a Class 5 felony. Id. On appeal, Cook argues that the
handgun found on the driver’s-side floorboard was not “hidden from common observation.” He
relies on M.B.’s version of events—that the handgun was next to her on the passenger seat and
she moved it to the driver’s-side floorboard before stepping out of the car.
But taking the evidence in the light most favorable to the Commonwealth, Hammer, 74
Va. App. at 231, the trial court could reasonably find that Cook had hidden the gun under his
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seat. Officers Butts and Fisher found the firearm on the driver’s-side floorboard, the officers
recovered ammunition from under the driver’s seat, and on the night of the incident, Cook told
the officers that he thought the gun was under his seat. Those facts support a reasonable
inference that Cook kept the gun under the driver’s seat and that the gun slid forward when he
suddenly braked. The court was free to accept that version of events and to reject M.B.’s
testimony. See Kelley v. Commonwealth, 69 Va. App. 617, 626 (2019) (“[T]he finder of fact,
‘who determines the credibility of the witnesses and the weight accorded their testimony, may
accept or reject the testimony in whole or in part.’” (quoting Perkins v. Commonwealth, 31
Va. App. 326, 331 (2000))).
Because the Commonwealth presented sufficient evidence to prove that the firearm was
“hidden from common observation” under Code § 18.2-308(A), the judgment of the trial court
was not “plainly wrong or without evidence to support it.” McGowan, 72 Va. App. at 521
(quoting Smith, 296 Va. at 460).
B. The evidence sufficed to prove felony eluding (Assignment of Error 2).
To obtain a conviction under Code § 46.2-817(B), the Commonwealth had to prove that
Cook (1) “received a visible or audible signal from any law-enforcement officer to bring his
motor vehicle to a stop” and (2) drove “such motor vehicle in a willful and wanton disregard of
such signal so as to” (3) “interfere with or endanger the operation of the law-enforcement vehicle
or endanger a person.” On appeal, Cook argues that the Commonwealth failed to present
sufficient evidence to prove the second and third elements.
1. Willful and wanton disregard of the officers’ signal to stop
Willful conduct is “[v]oluntary and intentional, but not necessarily malicious.” Willful,
Black’s Law Dictionary (11th ed. 2019). A person acts “wantonly” when he “[u]nreasonably or
maliciously risk[s] harm while being utterly indifferent to the consequences.” Wanton, Black’s
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Law Dictionary, supra. Proving wantonness “requires a showing of recklessness plus additional
culpability.” Bazemore v. Commonwealth, 42 Va. App. 203, 222 (2004) (en banc). In the
context of Code § 46.2-817(B), “the intentional violation of a traffic law, without more, will not
support a finding of willful and wanton negligence.” Id. at 223 (quoting Alfonso v. Robinson,
257 Va. 540, 545 (1999)).
The trier of fact could properly find the second element of the offense satisfied here.
Cook drove 100 to 200 feet into the Wawa parking lot after the officers activated their
emergency lights. Cook accelerated away from the officers in pursuit. Even after the officers
activated their siren, Cook drove through the parking lot at speeds of up to 50 miles per hour.
The trial court could reasonably conclude from that evidence that Cook intentionally disregarded
the officers’ visual and audible signals, indifferent to the potential risks.
We disagree with Cook that he could not have formed the requisite intent because the
chase lasted only 11 seconds. Cook said, “oh shit, it’s the cops.” And he accelerated to high
speeds while driving through a parking lot with pedestrians. Although Cook testified that he did
not realize at first that the lights and sirens were directed at him, “the trial court was at liberty to
discount [his] self-serving statements as little more than lying to ‘conceal his guilt’ and could
treat such prevarications as ‘affirmative evidence of guilt.’” Coleman v. Commonwealth, 52
Va. App. 19, 25 (2008) (first quoting Haskins v. Commonwealth, 44 Va. App. 1, 10 (2004); and
then quoting Wright v. West, 505 U.S. 277, 296 (1992)). We find the evidence sufficient to
prove that Cook willfully and wantonly disregarded the visual and audible signals of law
enforcement commanding him to stop his vehicle.
2. Endangering at least one person
The final element of endangerment differentiates felony eluding from misdemeanor
eluding. “[C]onduct that raises the specter of endangerment is the evil contemplated and
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proscribed by” Code § 46.2-817(B). Tucker v. Commonwealth, 38 Va. App. 343, 347 (2002).
“To ‘endanger’ is to ‘expose to danger, harm, or loss.’” Coleman, 52 Va. App. at 24 (quoting
Webster’s New World Dictionary 448 (3d coll. ed. 1988)). The person endangered “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.” Id. The statute does not require an eluding defendant to pose an imminent
threat. Requiring an “imminent” threat “would engraft an [additional] element to the offense,
thereby permitting the dangerous operation of motor vehicles until a person is actually imperiled,
an absurd result that subverts the salutary purposes of the statute.” Tucker, 38 Va. App. at 347.
“That the exposure to danger does not result in any actual harm is a welcome fortuity, but not a
legal defense.” Coleman, 52 Va. App. at 24.
The endangerment element was satisfied here. Cook sped through the Wawa parking lot
at 40 to 50 miles per hour despite the presence of pedestrians and cars parked at the store and the
gas pumps. When Cook turned from the parking lot onto the highway, he failed to stop at the
stop sign. Even Cook’s trial attorney acknowledged that “it certainly [was] reckless driving.”
The question for this Court is “whether ‘any rational trier of fact,’” Vasquez, 291 Va. at 248(quoting Williams, 278 Va. at 193), could have found that Cook “endanger[ed] a person,” Code
§ 46.2-817(B). Because Cook sped through a parking lot with pedestrians and failed to stop at
the stop sign when turning onto the highway, the trial court could reasonably conclude that Cook
endangered himself, the officers, pedestrians, or other motorists in the vicinity.
CONCLUSION
The trial court had sufficient evidence to conclude beyond a reasonable doubt that Cook
concealed the firearm under his seat and that he eluded police after being signaled to stop.
Affirmed.
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