Present: Kinser, C.J., Lemons, Goodwyn, Millette, and Mims,
JJ., and Carrico and Koontz, S.JJ.
WINSTON TYRONE BURTON
OPINION BY
v. Record No. 101282 JUSTICE LEROY F. MILLETTE, JR.
April 21, 2011
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether the evidence was
sufficient to sustain Winston Tyrone Burton’s conviction for
abduction, in violation of Code § 18.2-47(A). Because the
evidence was not sufficient to prove that Burton intended to
deprive the victim of her personal liberty, we will reverse the
Court of Appeals’ judgment.
I. RELEVANT FACTS AND PROCEEDINGS *
We will state the facts in the light most favorable to the
Commonwealth, the prevailing party below. Jones v.
Commonwealth, 279 Va. 52, 55, 688 S.E.2d 269, 270 (2010). At
approximately 1:30 in the afternoon, Kathleen Tracy was sitting
in her car parked on the upper deck of a shopping mall parking
lot when Burton approached her and knocked on her window.
Burton, who was dressed as a mechanic, told her that her car
was leaking brake fluid. Tracy recently had work performed on
*
In accordance with established practice, we will recite
only those facts relevant to the dispositive issue in this
appeal. See, e.g., Preston v. Commonwealth, 281 Va. 52, 55
n.2, 704 S.E.2d 127, 128 n.2 (2011).
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her car’s brakes, and after the work was completed, she “felt
like something wasn’t quite right with them.” Burton told
Tracy to open the hood of her car, and she complied. Burton
pointed to a place under the hood that he indicated was the
cause of the problem. While Burton was examining the car, he
directed Tracy to lie down across the front seats, applying
equal pressure to both seats, and to pull a lever under the
passenger seat. Tracy complied, lying on her stomach with her
feet hanging out of the driver’s side door.
While Tracy was in this position, Burton moved to the rear
wheel on the driver’s side of the car. Burton told Tracy that
she was not following his instructions, and, he again directed
her to apply equal pressure to both front seats. After five to
ten minutes, Tracy began to feel uncomfortable and exited the
car. Tracy stepped back from the car and saw Burton squatting
down near the rear wheel with his hand in his unzipped pants.
Tracy told Burton that she needed to leave, and Burton stepped
in front of her, “kind of block[ing]” her way to the car.
Tracy repeated that she needed to leave, and Burton stepped
aside.
Burton was indicted for abduction in violation of Code
§ 18.2-47(A). Burton was found guilty of this offense after a
jury trial. Burton appealed his conviction to the Court of
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Appeals, which denied his petition by order. Burton v.
Commonwealth, Record No. 2426-09-4 (March 24, 2010). A three-
judge panel affirmed the judgment denying Burton’s petition.
Burton v. Commonwealth, Record No. 2426-09-4 (June 8, 2010).
We awarded Burton this appeal.
II. DISCUSSION
The standard of review in this case is well-settled. When
considering the sufficiency of the evidence to sustain a
conviction,
[t]his Court will only reverse the judgment of the
trial court if the judgment is plainly wrong or
without evidence to support it. If there is evidence
to support 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.
Clark v. Commonwealth, 279 Va. 636, 640-41, 691 S.E.2d 786, 788
(2010) (citations and internal quotation marks omitted).
Burton argues that the Court of Appeals erred in holding
that the evidence was sufficient to support his conviction for
abduction under Code § 18.2-47(A). Among other arguments,
Burton asserts that the evidence presented at trial was
insufficient to prove that he intended to deprive the victim of
her personal liberty. We agree.
Code § 18.2-47(A), in relevant part, states:
Any person who, by force, intimidation or deception,
and without legal justification or excuse, seizes,
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takes, transports, detains or secretes another person
with the intent to deprive such other person of his
personal liberty . . . shall be deemed guilty of
“abduction.”
The jury was properly instructed by the circuit court that
the crime of abduction consists of three separate elements,
each of which the Commonwealth is required to prove beyond a
reasonable doubt:
1) that [Burton,] by force or intimidation or
deception, did seize or take or transport or
detain or hide [Tracy;] and
2) that [Burton] did so with the intent to deprive
[Tracy] of her personal liberty; and
3) that [Burton] acted without legal justification
or excuse.
We have stated that when a “statute makes an offense
consist of an act combined with a particular intent, proof of
such intent is as necessary as proof of the act itself and must
be established as a matter of fact.” Ridley v. Commonwealth,
219 Va. 834, 836, 252 S.E.2d 313, 314 (1979). “Intent is the
purpose formed in a person’s mind which may, and often must, be
inferred from the facts and circumstances in a particular case.
The state of mind of an alleged offender may be shown by his
acts and conduct.” Id. To prove that the defendant intended
to deprive the victim of her personal liberty, the Commonwealth
must prove that the defendant intended to deny the victim her
freedom from bodily restraint. Assuming arguendo that the
evidence presented by the Commonwealth established beyond a
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reasonable doubt that Burton detained Tracy by deception,
without legal justification or excuse, the issue presented is
whether Burton detained Tracy with the intent to deprive her of
her personal liberty.
In Johnson v. Commonwealth, 221 Va. 872, 275 S.E.2d 592
(1981), we reversed a defendant’s abduction conviction because
the evidence was insufficient to prove that the defendant had
the intent to deprive the victim of her personal liberty. In
Johnson, the defendant knocked on the victim’s door and asked
for a glass of water. Id. at 874, 275 S.E.2d at 593. The
victim told the defendant to wait, and she went inside to get
the glass of water, leaving the door ajar. Id. The defendant
followed her into the kitchen, grabbed her from behind, rubbed
his body against hers, and tried to kiss her. Id. When the
defendant did this, the victim screamed, and the defendant
released her and fled. Id. In reversing the defendant’s
abduction conviction, we stated:
We think it clear that Johnson entered the apartment
with the intention of having sexual intercourse with
the occupant and that the advances he made, however
limited and fleeting, were designed to accomplish
that purpose. However, his assault was frustrated by
her resistance and stopped short of constituting an
attempted rape. When Johnson put his arms around
[the victim] and held her tightly this was done in
furtherance of his sexual advances and not with the
intent to deprive her of her personal liberty,
although such a deprivation did occur momentarily
. . . . The evidence is not sufficient to sustain
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his conviction of abduction, i.e., seizing and
detaining [the victim] with intent to deprive her of
her personal liberty.
Id. at 879, 275 S.E.2d at 596-97.
In this case, as in Johnson, the evidence fails to prove
that Burton detained the victim with the intent to deprive her
of her personal liberty. The Commonwealth argues that the act
of detention occurred when Burton deceived Tracy into lying
across the front seats. The Commonwealth further contends that
Burton’s action in “kind of block[ing]” Tracy’s path to the
car, although not a detention, was evidence of his intent to
deprive her of her personal liberty.
It is clear that Burton’s intent was to deceive Tracy into
positioning herself in such a way that he could gain sexual
gratification by observing her lying across the front seats
with her feet hanging out of the car. Although Tracy was
briefly detained by Burton’s ruse, Burton’s actions were made
in pursuit of his sexual gratification and not with the intent
to deprive Tracy of her personal liberty. Burton, of course,
could have had the intent to obtain sexual gratification by
deceiving Tracy to lie in a certain position, while at the same
time having had the intent to deprive her of her liberty, but
the intent to deprive Tracy of her liberty does not necessarily
flow from his deceiving or detaining her.
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When a defendant accomplishes an abduction by seizing,
taking, transporting, or secreting a victim, it may be a
reasonable inference just from those physical actions that the
defendant’s intent was to deprive the victim of her personal
liberty. Such an inference, however, does not flow as freely
when the alleged abduction consists of detaining a person by
means of deception. Possible explanations for the detention
include a prank, to cause inconvenience, or, as in Johnson and
this case, for sexual gratification.
The use of deception to detain a victim by having her
remain in a certain location, or even in a certain position,
satisfies only one of the elements of abduction. The
Commonwealth must also prove that the act of detaining by
deception was done with the intent to deprive the victim of her
personal liberty. These two elements must not be conflated.
They are separate elements, and although proof of either
element may be used to establish the other, the evidence
presented must establish both elements beyond a reasonable
doubt. Here, Burton’s actions in deceiving Tracy into lying in
a certain position in her own car parked in a shopping mall
parking lot in mid-afternoon are not sufficient to prove that
he had the intent to deprive Tracy of her personal liberty.
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This conclusion is further supported by the fact that
Burton did not attempt to detain Tracy after she told him that
she needed to leave. After Tracy exited the car and saw Burton
with his hand in his unzipped pants, she said that she needed
to leave. Although he “kind of block[ed]” her path – which the
Commonwealth conceded was not a detention – Burton made no
attempt to prevent her from leaving, and he stepped aside when
she repeated that she needed to leave. Without additional
evidence that Burton’s intent was to deprive Tracy of her
personal liberty, the Commonwealth’s argument must fail.
Even though Tracy was deceived into remaining briefly in a
certain location due to Burton’s ruse, under the facts before
us, we cannot say that there was evidence that Burton had the
intent to deprive Tracy of her personal liberty. We,
therefore, hold that the evidence was insufficient to sustain
Burton’s conviction for abduction.
III. CONCLUSION
For the reasons stated, we will reverse the judgment of
the Court of Appeals and vacate the defendant’s conviction for
abduction, and dismiss the indictment.
Reversed, vacated and dismissed.
JUSTICE MIMS, with whom SENIOR JUSTICE CARRICO joins,
dissenting.
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I believe that the evidence was sufficient to support the
conviction, and therefore dissent. The majority, faced with a
jury finding to the contrary, concludes as a matter of fact
that “Burton’s actions were made in pursuit of his sexual
gratification and not with the intent to deprive Tracy of her
personal liberty.” Burton’s motive or reason for detaining
Tracy was irrelevant so long as he intended to deprive her of
her liberty, and the jury found that he did.
The majority’s concern with an abduction of this nature,
i.e. detention by deception, is that many conceivable
scenarios, such a prank or ruse to cause inconvenience, could
be punishable under the statute. The majority therefore
concludes that detaining by deception should be viewed
differently than other forms of statutory abduction. A reading
of the statute, however, does not support that conclusion.
This case does not present an application of the statute to a
prank, and Burton does not challenge the statute’s
constitutionality.
Because I believe the evidence is sufficient to prove each
of the elements of statutory abduction under Code § 18.2-47(A),
I would affirm.
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