Present: Hassell, C.J., Lacy, Keenan, Kinser, Lemons, and
Agee, JJ., and Carrico, S.J.
STEPHEN CRAIG WALKER
OPINION BY CHIEF JUSTICE LEROY R. HASSELL, SR.
v. Record No. 060162 November 3, 2006
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether the evidence at trial
established that the defendant was guilty of abduction in
violation of Code § 18.2-47.
A grand jury in the Circuit Court of Virginia Beach
indicted Stephen Craig Walker for robbery, use of a firearm
during the commission of a robbery, abduction, and use of a
firearm during an abduction. Walker pled not guilty to the
charged offenses and at the conclusion of a bench trial, he
was acquitted of robbery and the use of a firearm in the
commission of robbery, but he was convicted of abduction in
violation of Code § 18.2-47 and the use of a firearm in the
commission of abduction in violation of Code § 18.2-53.1.
The circuit court fixed Walker's punishment at five years
imprisonment on the charge of abduction, but suspended the
entire sentence conditioned upon his good behavior and the
payment of court costs. The circuit court fixed Walker's
punishment at three years imprisonment, as required by Code
§ 18.2-53.1, for the conviction of use of a firearm during the
commission of an abduction.
Walker appealed the judgment of the circuit court to the
Court of Appeals. The Court of Appeals held that the evidence
was sufficient to support the circuit court's judgment, Walker
v. Commonwealth, 47 Va. App. 114, 116-17, 622 S.E.2d 282, 283
(2005). We awarded Walker an appeal.
Applying well-established principles of appellate review,
we must consider the evidence and all reasonable inferences
fairly deducible therefrom in the light most favorable to the
Commonwealth, the prevailing party below. Rose v.
Commonwealth, 270 Va. 3, 6, 613 S.E.2d 454, 455 (2005);
Correll v. Commonwealth, 269 Va. 3, 6, 607 S.E.2d 119, 120
(2005); Zimmerman v. Commonwealth, 266 Va. 384, 386, 585
S.E.2d 538, 539 (2003); Phan v. Commonwealth, 258 Va. 506,
508, 521 S.E.2d 282, 282 (1999). When a defendant contests
the sufficiency of the evidence on appeal, this Court must
give the judgment of the circuit court sitting without a jury
the same weight as a jury verdict. Commonwealth v. Duncan,
267 Va. 377, 384, 593 S.E.2d 210, 214 (2004); McCain v.
Commonwealth, 261 Va. 483, 492, 545 S.E.2d 541, 547 (2001);
Tarpley v. Commonwealth, 261 Va. 251, 256, 542 S.E.2d 761, 763
(2001); Hickson v. Commonwealth, 258 Va. 383, 387, 520 S.E.2d
643, 645 (1999). Additionally, this Court has the duty to
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review the evidence and affirm the circuit court's judgment
unless it appears from the evidence that the judgment is
plainly wrong or without evidence to support it. Code § 8.01-
680; Duncan, 267 Va. at 384, 593 S.E.2d at 214; Jackson v.
Commonwealth, 267 Va. 178, 204, 590 S.E.2d 520, 535 (2004);
McCain, 261 Va. at 492-93, 545 S.E.2d at 547; Tarpley, 261 Va.
at 256, 542 S.E.2d at 763; Phan, 258 Va. at 511, 521 S.E.2d at
284.
Robert Park Merrell was employed as an automotive
repossessor and investigator with Virginia Auto Recovery and
in that capacity repossesses automobiles and other vehicles.
On April 19, 2003, Merrell tried to repossess Walker's
Chevrolet Suburban located at Walker's home in the City of
Virginia Beach.
Merrell drove to Walker's home in a tow truck equipped
with a video recording system. Merrell activated the video
recording system when he drove onto Walker's driveway and
attached Walker's vehicle to the tow truck's towing mechanism.
Merrell got out of his truck and verified the identification
number on Walker's vehicle. Merrell returned to his tow truck
and began to drive it out of the driveway with Walker's
vehicle in tow.
As Merrell was leaving, Walker returned to his home in
another vehicle. Walker parked his vehicle in the middle of
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the street, and a young child exited the vehicle and ran into
Walker's house. Merrell then got out of the tow truck and
went to the rear of the truck.
Walker, who weighed 240 pounds and was six feet and five
inches tall, got out of his vehicle. He retrieved a handgun
from the rear of his vehicle and, holding the handgun, he
approached Merrell. Merrell, who weighed between 115 and 120
pounds and was five feet and five inches tall, immediately
tried to contact the police department with his cellular
telephone. Merrell testified that "as soon as [Walker] walked
from the vehicle directly to me not saying a single word and
he has a gun in hand, at that point in time I put my phone
down. . . . [Walker] raises the gun and says, Put it down. I
knew he was not talking about the phone." Walker pointed the
handgun at Merrell's chest and face and commanded Merrell to
"[p]ut [the car] down." Walker put the gun against Merrell's
body, and Merrell grabbed the top of the gun and tried to push
it away.
After Merrell pushed the gun away from his body, Walker
placed the gun directly against Merrell's chest and grabbed
Merrell by the belt and began to jerk him around. Merrell
testified as follows:
"Basically, what was going on was he [Walker]
had . . . the gun in my chest. At that point in
time when I had started screaming hysterically, he
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had rocked the hammer of the gun back showing the
intent that the next thing I was going to get shot.
So basically that – I don't know if that was one of
those – you know, how in those instances you get
superscared; and you just become superhumanly, you
know, strong."
Merrell told Walker that Walker did not need the gun and that
Merrell was not willing "to die for the truck."
Merrell, who had a concealed weapon permit, was armed
with a pistol, a knife, and bullets that were contained in two
pistol magazines. While Walker was pointing his gun at
Merrell, Walker yelled to Merrell to "[d]rop the gun. Drop
the gun now," although Merrell had not reached for his weapon,
which remained in its holster. Walker tried to remove
Merrell's firearm, but Walker was unable to do so. Walker
lifted Merrell in the air and carried him seven to eight feet
and "literally stuffed [Merrell] into the inside of
[Merrell's] truck."
Walker took Merrell's pistol from Merrell's gunbelt, and
Walker directed Merrell to disengage Walker's vehicle from the
tow truck. As Merrell complied, Walker told Merrell that he
would have to "suffer the consequences" of repossessing
someone's vehicle. After Merrell had disengaged Walker's
vehicle from the tow truck, Walker permitted Merrell to leave.
Detective Vernon Jones, a Virginia Beach police officer,
interviewed Walker the day of the crimes. Walker told
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Detective Jones that Walker had a prior vehicle repossessed
and he was not going to let it happen again. Walker had not
made two payments to the financial institution that had
financed his purchase of the vehicle. Walker told the
detective that he "realized how stupid he was."
Walker also spoke with Officer Aris Anastasas of the
Virginia Beach Police Department. Walker told Anastasas:
"About one and a half years ago, I had a car repossessed; and
I had to pay about $5,500 to have the situation resolved.
After I paid that, they ended up selling it in an auction. I
saw this, and I just snapped. I was thinking about work. I
just snapped. When you guys were asking me about what
happened, I see that I messed up."
Walker, relying upon this Court's decision in Brown v.
Commonwealth, 230 Va. 310, 337 S.E.2d 711 (1985), argues that
as a matter of law he cannot be guilty of abduction because he
"detained Merrell for the purpose of temporarily depriving him
of his property, and he did no more than was necessary to
achieve that objective." Continuing, Walker argues that the
so-called incidental detention doctrine that this Court
discussed in Brown applies when a defendant is charged with a
"detention-plus offense" and acquitted. He argues that his
acquittal of the robbery charge requires dismissal of the
abduction charge because the trier of fact considered the act
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of detention incident to the robbery charge and acquitted him
of that offense. We disagree with Walker's contentions.
In Brown, we considered whether a criminal prosecution
against a defendant on the charge of abduction with intent to
defile, following convictions for rape and forcible sodomy in
a prior trial, constituted double jeopardy when the charges
arose from the same criminal episode. Id. at 311-12, 337
S.E.2d at 712. The defendant in Brown was convicted in the
Circuit Court of Albemarle County of rape and forcible sodomy
and sentenced to the penitentiary for the commission of those
crimes. Subsequently, the defendant was convicted in the
Circuit Court of the City of Charlottesville of abduction with
intent to defile and sentenced to the penitentiary for the
commission of that crime. During the trial of the abduction
offense, the defendant made a motion to dismiss the charge on
double jeopardy grounds. The circuit court denied the motion,
and this Court affirmed the judgment of the circuit court.
Applying principles of double jeopardy, we held that
"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, a restraint employed
in the commission of the other crime."
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Id. at 314, 337 S.E.2d at 713-14. We also held that the
defendant's subsequent conviction in Brown did not violate the
double jeopardy guarantee against successive prosecutions
because the evidence necessary to support the defendant's
conviction in the abduction trial was not required to prove
the crime of rape in the prior trial. Id. at 316, 337 S.E.2d
at 715.
In the present case, unlike Brown, we are not concerned
with the application of the double jeopardy clause of the
Fifth Amendment to the United States Constitution that
provides in part that no person shall "be subject for the same
offense to be twice put in jeopardy of life or limb." This
constitutional guarantee is not pertinent to the resolution of
this appeal because Walker was not convicted of the robbery
charge. We hold that our ruling in Brown regarding incidental
detention only applies when a defendant is convicted of two or
more crimes arising out of the same factual episode and, thus,
the guarantee of double jeopardy may be implicated. * Since
Walker was only convicted of one crime, abduction, the
incidental detention concept has no application in the case at
bar.
*
In view of our holding, we need not consider the Court
of Appeals' application of Hoyt v. Commonwealth, 44 Va. App.
489, 605 S.E.2d 755 (2004), and we express no opinion on that
decision.
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Now, we must consider whether the Commonwealth presented
sufficient evidence to support Walker's conviction of
abduction. Code § 18.2-47 states in relevant part:
"A. 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'. . . .
The terms 'abduction' and 'kidnapping' shall be
synonymous in this Code."
We held, in Scott v. Commonwealth, 228 Va. 519, 526, 323
S.E.2d 572, 576 (1984), that Code § 18.2-47 altered the common
law rule requiring proof of asportation in order to establish
a conviction for abduction. Additionally, mere detention is
sufficient under Code § 18.2-47 to establish abduction and the
asportation and detention may be accomplished by force,
intimidation, or deception. Code § 18.2-47; Jerman v.
Director, Dept. of Corrections, 267 Va. 432, 439, 593 S.E.2d
255, 259 (2004).
In the record before this Court it is clear that the
Commonwealth presented evidence that permitted the circuit
court to conclude beyond a reasonable doubt that Walker
detained and asported the victim with the use of force.
Walker, armed with a handgun that he pointed against Merrell's
chest, lifted the victim in the air, moved him seven or eight
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feet, and "stuffed" him into the truck, as the victim screamed
and begged Walker to cease. During Walker's detention and
asportation of Merrell, Walker "cocked" his gun while the gun
was pressed against Merrell's body. Walker detained Merrell
by restricting his movements and forcing him into the truck.
Walker deprived Merrell of his liberty by using the handgun to
prevent Merrell from leaving during the detention.
In view of the foregoing reasons, we will affirm the
judgment of the Court of Appeals.
Affirmed.
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