COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Annunziata and Senior Judge Cole
Argued at Richmond, Virginia
KALVIN DONNELL COWARD, S/K/A
KELVIN DONNELL COWARD
v. Record No. 2631-94-2 MEMORANDUM OPINION * BY
JUDGE MARVIN F. COLE
COMMONWEALTH OF VIRGINIA APRIL 2, 1996
FROM THE CIRCUIT COURT OF HENRICO COUNTY
Buford M. Parsons, Jr., Judge
Thomas P. Collins (Eck, Collins &
Marstiller, on brief), for appellant.
Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General,
on brief), for appellee.
The appellant, Kelvin Donnell Coward, was convicted by a
jury of robbery, abduction for pecuniary benefit, and two firearm
charges. On appeal he raises two issues: (1) whether the trial
court erred in refusing to grant appellant's motion to strike the
convictions for abduction for pecuniary benefit and the related
firearm charge, and (2) whether the trial court erred in denying
his motion to set aside the convictions as contrary to the law
and evidence.
The appellant contends that there was insufficient evidence
of an abduction separate and apart from the robbery to support
the abduction and the related firearm charge, and that the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
evidence was insufficient to identify him as the perpetrator.
I. Facts
Jeffrey Henry was the restaurant manager at Picadilly's
Cafeteria when appellant rang the bell at the rear door where
employees enter. Appellant wore clothes similar to those "the
baker normally wore," and, when Henry "looked through the peep
hole [appellant] had his back to [Henry]." Henry opened the
locked door, and appellant pointed a gun at him. Appellant "told
[Henry] to back up and get into the store, and he told [him] that
he wanted the money, my money and the store's money or he would
shoot me." "[A] few feet into the store [appellant] hit [Henry]
in the side of the face with his fist." "[He] put the gun to
[Henry's] head and told [him] he was going to blow [his] brains
out if [Henry] didn't take [him] to the office and give him the
money." Appellant made this threat three times as he grasped
Henry's shirt and "pulled" him approximately seventy-five feet
from the back door, down a hallway, through the kitchen, through
an employee's dining area, and into the office.
During Henry's testimony, the prosecutor asked whether Henry
gave appellant any of his personal money. Henry stated, "Right
inside the door, when he started demanding the money for [sic]
the office, he demanded my money and that was on my person,
also." Henry recalled giving appellant twelve dollars.
In the office, appellant put the gun to Henry's head and
forced him to open the safe. After taking the money, appellant
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put Henry into a chair in the office, told him "to sit there and
be quiet or he was going to shoot" him. Appellant fled. Henry
unequivocally identified appellant as the robber. He stated that
he was familiar with appellant, who had previously worked at the
restaurant for about six months.
Shirley Smith, a restaurant employee, testified that, the
night before the robbery, appellant met her at the restaurant
near the end of her shift and asked her for a ride. Smith was a
friend of appellant's girlfriend. During the ride, appellant
told Smith that "he had been thinking about robbing [the
restaurant]."
At trial, appellant moved to strike the abduction charge and
the related use of a firearm charge. The trial judge found "two
separate acts." The trial judge ruled that the abduction
occurred "at the door," and taking Henry "into a different place
where he robs him, that's the robbery."
II. Discussion
When reviewing criminal convictions, we consider the
evidence in the light most favorable to the Commonwealth, giving
to it all inferences fairly deducible therefrom. Sutphin v.
Commonwealth, 1 Va. App. 241, 243, 337 S.E.2d 897, 898 (1985). A
conviction will be affirmed unless plainly wrong or without
evidence to support it. Higginbotham v. Commonwealth, 216 Va.
349, 352, 218 S.E.2d 534, 537 (1975).
Code § 18.2-47 defines abduction and provides, in pertinent
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part:
Any person, who, by force, intimidation or
deception, and without legal justification
or excuse . . . detains . . . the person of
another, with the intent to deprive such
other person of his personal liberty . . .
shall be deemed guilty of "abduction"
. . . .
In Brown v. Commonwealth, 230 Va. 310, 337 S.E.2d 711
(1985), the Virginia Supreme Court held that "in the enactment of
the abduction statutes the General Assembly did not intend to
make the kind of restraint which is an intrinsic element of . . .
robbery . . . a criminal act, punishable as a separate offense."
Id. at 314, 337 S.E.2d at 713. The Court went on to define the
type of detention addressed by the abduction statute as a
"detention . . . 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 714.
Therefore, the question before us is whether the detention
of the victim in this case was "separate and apart" from or
"merely incidental to the robbery." The indictment charged that
appellant "did rob Jeffrey Henry of United States currency." The
jury found appellant "guilty of the crime of robbery as charged
in the indictment." Appellant put the gun to Henry's head and
told him to back up and get into the store, where he personally
robbed Henry of twelve dollars. Clearly, this evidence supports
the robbery conviction.
Appellant then told Henry he was "going to blow [his] brains
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out if [Henry] didn't take [him] to the office and give him the
money." The appellant grasped Henry's shirt and pulled him
seventy-five feet from the back door, down a hallway, through the
kitchen, through an employee's dining area, and into the office.
We find that these acts were not acts inherent in or necessary
to the restraint required for the robbery, but, rather, they
constitute acts separate and apart from the robbery.
The appellant contends that the identification evidence was
insufficient to prove that he was the perpetrator of the offenses
beyond a reasonable doubt. Therefore, he argues that the trial
court should have granted his motion to set aside the jury
verdicts as contrary to the law and evidence. The record fully
supports the fact finder's determination that the appellant was
the perpetrator of the offenses with which he was charged. Henry
worked with appellant for six months and positively identified
him as the robber. The night before the crimes, the appellant
further told an acquaintance that he was considering committing
the robbery. The jury chose to believe this evidence and it was
sufficient to support the convictions.
For the foregoing reasons, we find that the trial court did
not err in refusing to strike the appellant's evidence and did
not err in refusing to grant the motion to set aside the verdicts
as being contrary to the law and evidence. Therefore, we affirm
the convictions.
Affirmed.
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