¶1I respectfully dissent and would affirm the conviction. This case is indistinguishable from our holding in Castell v. Commonwealth, 21 Va.App. 78, 82, 461 S.E.2d 438, 439 (1995) (en banc). For purposes of Code § 18.2-479, custody “does not require direct physical restraint.” Instead, “custody” is effected under § 18.2-479 where “a person of ordinary intelligence and understanding would know that he was not free to leave ... and the officer [attempting the arrest] had the immediate ability to place [that person] under formal arrest.” Id. at 82, 461 S.E.2d at 439-40.
¶2Officer Lewis specifically told appellant, who was conversing with him, albeit with profanity, that “you are under arrest. You have a felony warrant.” Appellant continued to curse the officer. The first prong of Castellis met — “a person of ordinary intelligence and understanding ... know[s] he was not free to leave.... ” Additionally, Lewis had the immediate ability to arrest appellant from his distance of five feet and when he attempted to complete the act, appellant fled. Thus, the second prong, the immediate ability to place appellant under arrest, is also met. The fact that in Castellthe officer was physically closer, within one inch, is of no moment. I would affirm.