COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Annunziata
Argued at Chesapeake, Virginia
ROBERT THOMAS HOYT
OPINION BY
v. Record No. 3042-03-1 JUDGE ROSEMARIE ANNUNZIATA
DECEMBER 7, 2004
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Randolph T. West, Judge
Charles E. Haden for appellant.
Robert H. Anderson, III, Senior Assistant Attorney General (Jerry W.
Kilgore, Attorney General, on brief), for appellee.
Robert Thomas Hoyt appeals his conviction under Code § 18.2-47(A) for abduction. He
contends his conviction should be reversed because the abduction was incidental to his
commission of robbery. For the following reasons, we reverse and dismiss the abduction
conviction and the related conviction for using a firearm in the commission of a felony.1
I. Background
In accord with our usual standard of review, we review the evidence and all reasonable
inferences flowing from the evidence in a light most favorable to the Commonwealth as the party
1
Hoyt preserved his challenge to the firearm charge as required by Rule 5A:18. He
placed the firearm charge before this Court for resolution on appeal in keeping with Rule 5A:12
by including the docket numbers for all convictions, including the subject firearm charge, in his
notice of appeal; challenging the trial court’s ruling denying the motion to strike the abduction
charge; and asking this Court to “reverse the judgment of the trial court below.” Thus, the
validity of the firearm conviction based on the abduction is properly before us on appeal.
Because the firearm conviction depends on the abduction conviction for its validity, our reversal
and dismissal of the abduction conviction compels the concomitant reversal and dismissal of the
related firearm conviction.
prevailing below. Garcia v. Commonwealth, 40 Va. App. 184, 189, 578 S.E.2d 97, 99 (2003).
So viewed, the evidence establishes that Hoyt entered a Newport News gas station store at
11:00 p.m. on October 10, 2001 with the intent to rob it. When Hoyt entered the store,
employees Marquelle Riddick and Minesh Patel were “getting ready to close” the store for the
night.
Hoyt directed Patel to “lay on the floor.” He then pointed a gun at Riddick and told him
to “give me the money.” Riddick walked approximately ten feet to the cash register, opened the
drawer, placed the money in a bag, and handed the bag to Hoyt. Hoyt then exited the store. The
robbery lasted no more than five minutes.
Hoyt was charged with abduction in violation of Code § 18.2-47(A),2 wearing a mask in
public in violation of Code § 18.2-422, two counts of robbery in violation of Code § 18.2-58, and
three counts of use of a firearm during the commission of a felony in violation of Code
§ 18.2-53.1. Hoyt moved to strike the abduction and related firearm charge at the close of the
Commonwealth’s case. The trial court denied the motion to strike. Hoyt renewed his motion to
strike the abduction and related firearm charge at the end of the trial, but the trial court again
denied the motion, stating
That’s the only question this Court had in the evidence in this case,
whether or not there was sufficient deprivation of the victims’
liberty to distinguish it from simple robbery with abduction being a
part of it or carrying it a little further and I’m in agreement with the
Commonwealth that once you use a weapon in moving people
about, moving them on the floor, to the register, you deprive them
of their freedom and I think that’s now no longer simple robbery,
its abduction along with it.
Hoyt was subsequently convicted on all counts and noted this appeal. We granted his appeal only
on the issue of the validity of the evidence to prove the abduction was not incidental to his
commission of robbery.
2
The indictment alleged that Hoyt abducted Riddick. No mention was made of Patel.
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II. Analysis
Code § 18.2-47(A), which criminalizes abduction or kidnapping, provides:
Any person, who, by force, intimidation or deception, and without
legal justification or excuse, seizes, takes, transports, detains or
secretes the person of another, with the intent to deprive such other
person of his personal liberty or to withhold or conceal him from
any person, authority or institution lawfully entitled to his charge,
shall be deemed guilty of “abduction”; but the provisions of this
section shall not apply to any law-enforcement officer in the
performance of his duty. The terms “abduction” and “kidnapping”
shall be synonymous in this Code. Abduction for which no
punishment is otherwise prescribed shall be punished as a Class 5
felony.
In Scott v. Commonwealth, 228 Va. 519, 323 S.E.2d 572 (1984), the Supreme Court of Virginia
stated that an abduction generally inheres in a rape or robbery because “there is usually some
detention, and often a seizure, of the victim.” Id. at 526, 323 S.E.2d at 576. However, it
declined to address the “constitutional problems . . . created by such an overlapping of crimes”
because that precise issue was not before it. Id.
The “constitutional problem” was squarely presented to the Supreme Court in Brown v.
Commonwealth, 230 Va. 310, 337 S.E.2d 711 (1986), where Brown argued that the Double
Jeopardy Clause prohibited his convictions for rape and abduction. Id. at 311, 337 S.E.2d at 712.
In addressing Brown’s argument, the Supreme Court determined that discussion of double
jeopardy principles was unnecessary because the General Assembly “did not intend to make the
kind of restraint which is an intrinsic element of crimes such as rape, robbery, and assault a
criminal act, punishable as a separate offense.” Id. at 314, 337 S.E.2d at 713.3 Accordingly, the
Court held that
3
In light of the determination in Brown that the legislature did not intend to make
abduction punishable as a separate offense when the abduction was merely incidental to another
crime, the Commonwealth’s argument that we must consider the two offenses in the abstract, see
Whalen v. United States, 445 U.S. 684, 694 n.8 (1980), to resolve the question before us is
unavailing. See Brown, 239 Va. at 313, 337 S.E.2d at 713 (“We do not agree that resolution of
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one accused of abduction by detention and another crime involving
restraint of the victim, both growing out of a continuing course of
conduct, is subject upon conviction to separate penalties for
separate offenses only when the detention committed in the act of
abduction is separate and apart from, and not merely incidental to,
the restraint employed in the commission of the other crime.
Id. at 314, 337 S.E.2d at 713-14 (citing Iowa v. Folck, 325 N.W.2d 368 (Iowa 1982); Bass v.
State, 380 So. 2d 1181 (Fla. Dist. Ct. App. 1980)).
A majority of other courts have reached a similar conclusion and have articulated the
general policy considerations underlying it. For example, the Supreme Court of Maryland—
which noted that “a majority of courts . . . now hold that ‘kidnapping statutes do not apply to
unlawful confinements or movements incidental to the commission of other felonies’”—
recognized that a literal reading of abduction and kidnapping statutes would “overrun other
crimes, such as robbery, rape, and assault.” State v. Stouffer, 721 A.2d 207, 212 (Md. 1998)
(quoting Frank J. Wozniak, Annotation, Seizure or Detention for Purpose of Committing Rape,
Robbery, or Other Offense as Constituting Separate Crime of Kidnapping, 39 A.L.R.5th 283,
356 (1996)) (other internal quotations omitted).
The rationale of [the majority] approach is the concern that a literal
reading of the kidnapping statutes, which often carry significant
penalties, can lead to an overzealous enforcement, with the result
that “persons who have committed such substantive crimes as
robbery or assault—which inherently involve the temporary
detention or seizure of the victim—will suffer the far greater
penalties prescribed by the kidnapping statutes.”
Id. (quoting Government of Virgin Islands v. Berry, 604 F.2d 221, 226 (3d. Cir. 1979)).
________________________
the question is controlled by the Blockburger test. The Supreme Court has decided that this test
need not be applied when the intent of the legislature can be gleaned from a reading of the
relevant statutes.” (citing Garrett v. United States, 471 U.S. 773, 776 (1985); Missouri v. Hunter,
459 U.S. 359, 368 (1983); Albernaz v. United States, 450 U.S. 333, 340 (1981); Whalen, 445
U.S. at 691-92 (1980))).
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Notwithstanding the general consensus that kidnapping and abduction statutes do not
apply where the kidnapping or abduction is merely an incident of another crime, no single test
has been established to determine the factual circumstances that will render an abduction or
kidnapping incidental. Although “[t]here are literally hundreds of reported decisions from
around the country dealing with whether, and under what circumstances, the detention,
confinement, or asportation of a victim initially accosted for the purpose of robbery, sexual
assault or some other crime will suffice to sustain a separate conviction for kidnapping,” State v.
Goodhue, 833 A.2d 861, 865 (Vt. 2003), few of those decisions summarize the circumstances
courts should consider in such cases.
Berry, a case from the Third Circuit Court of Appeals, represents one of the few
decisions to harmonize the case law into a single, multi-factorial test. There, the court stated that
“four factors are central to” determining whether or not an abduction or kidnapping is incidental
to another crime. Berry, 604 F.2d at 227.
Those factors are: (1) the duration of the detention or asportation;
(2) whether the detention or asportation occurred during the
commission of a separate offense; (3) whether the detention or
asportation which occurred is inherent in the separate offense; and
(4) whether the asportation or detention created a significant
danger to the victim independent of that posed by the separate
offense.
Id.; see also United States v. Howard, 918 F.2d 1529, 1536 (11th Cir. 1990) (adopting the Berry
analysis); People v. Smith, 414 N.E.2d 1117, 1122 (Ill. 1980) (same); cf. Stouffer, 721 A.2d at
215 (declining to adopt any specific test, but nonetheless applying the factors delineated in
Berry); State v. Farmer, 445 S.E.2d 759, 764 (W. Va. 1994) (stating that it is appropriate to
examine certain factors substantially similar to those delineated in Berry).
The Berry analysis states in summary fashion the factors Virginia courts have employed
on a case-by-case basis in determining whether an abduction is incidental to another crime. See,
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e.g., Powell v. Commonwealth, 261 Va. 512, 541, 552 S.E.2d 344, 360-61 (2001) (upholding
conviction for abduction as more than necessary to accomplish rape where the defendant ordered
victim to go to a more secluded part of the home and bound and detained her for a lengthy period
of time); Cardwell v. Commonwealth, 248 Va. 501, 511, 450 S.E.2d 146, 153 (1994) (upholding
conviction for abduction because it was “greater than the restraint intrinsic in a robbery” where
defendant transported victim away from the robbery scene, which robbery was already complete,
and murdered him); Hoke v. Commonwealth, 237 Va. 303, 311, 377 S.E.2d 595, 600 (1989)
(upholding conviction for abduction because it was not inherent in the other crimes of rape and
robbery where victim’s hands were tightly bound, mouth was gagged, and detention was for
lengthy period of time); Brown, 230 Va. at 314, 337 S.E.2d at 714 (upholding conviction where
abduction, which was initial offense, “was remote in terms of time and distance from the sexual
assault and, in terms of quality and quantity, the acts of force and intimidation employed in the
abduction were separate and apart from the restraint inherent in the commission of the rape”);
Bell v. Commonwealth, 22 Va. App. 93, 96-98, 468 S.E.2d 114, 116 (1996) (upholding
conviction for abduction because jury could have found that it was “separate and apart from the
restraint inherent in either the sexual assault or the robbery” or that it was for the purpose of
avoiding detection where, once robbery was completed, the victim was pulled to one side of the
car, made to lie down, and sexually assaulted); Phoung v. Commonwealth, 15 Va. App. 457,
462, 424 S.E.2d 712, 715 (1992) (abduction upheld because it involved restraint greater than that
“inherent in the act of robbery” where defendant bound one victim and transported him from a
lower level of the house to an upper level and tied another victim to a bed and covered her with a
blanket); Coram v. Commonwealth, 3 Va. App. 623, 626, 352 S.E.2d 532, 534 (1987)
(upholding conviction for abduction because it “substantially increased the risk of harm to the
victim” where victim dragged twenty feet to a secluded area).
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Applying the factors developed by Virginia case law to the facts here, we conclude that
the abduction of Riddick was merely incidental to the robbery of the store.4
First, the duration of the detention and the distance of asportation were slight. Testimony
established that the robbery lasted no more than five minutes and that Riddick was forced to
walk only ten feet to the cash register. Cf. Cardwell, 248 Va. at 511, 450 S.E.2d at 153; Hoke,
237 Va. at 311, 377 S.E.2d at 600; Brown, 230 Va. at 314, 337 S.E.2d at 714.
Second, the detention and asportation of Riddick occurred during the commission of the
separate offense of robbery, but, as discussed next, they were not acts separate and apart from the
robbery itself. Cf. Bell, 22 Va. App. at 96-98, 468 S.E.2d at 116.
Third, the detention and asportation of Riddick was inherent in the robbery. Hoyt
detained Riddick for a few moments by threatening him with a gun and forced him to move ten
feet to the cash register. In detaining and forcing Riddick to move, Hoyt did no more than was
necessary to accomplish the robbery. Cf. Powell, 261 Va. at 541, 552 S.E.2d at 360-61; Hoke,
237 Va. at 311, 377 S.E.2d at 600; Brown, 230 Va. at 314, 337 S.E.2d at 714; Phoung, 15
Va. App. at 462, 424 S.E.2d at 715.
Fourth, the detention and asportation here did not pose a danger to Riddick independent
of and significantly greater than that posed by the robbery itself. Cf. Coram, 3 Va. App. at 626,
352 S.E.2d at 534.
4
Whether an abduction is merely incidental to another crime is a question of law.
However, because no two crimes are exactly alike, determining whether an abduction is
incidental necessarily requires consideration of the historical facts of each case. We defer to the
trial court’s findings of historical fact, but we review de novo the trial court’s application of
those facts to the law. Cf. McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259,
261 (1997) (en banc) (discussing the standard of review applied in search and seizure cases).
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Finally, the evidence does not support an inference that Hoyt detained and moved
Riddick in order to avoid the detection of the robbery. Cf. Bell, 22 Va. App. at 96-98, 468
S.E.2d at 116; Coram, 3 Va. App. at 626, 352 S.E.2d at 534.
Accordingly, we hold that the abduction of Riddick was incidental to the robbery of the
gas station store and that the trial court erred in denying Hoyt’s motion to strike the abduction
and related firearm charge. We reverse his convictions for abduction and the related use of a
firearm in the commission of a felony and dismiss the indictments.
Reversed and dismissed.
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