Mauricio Moreno v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: May 23, 2000
• Docket: 2237984
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judge Annunziata and Senior Judge Duff Argued at Alexandria, Virginia

MAURICIO MORENO MEMORANDUM OPINION ∗ BY v. Record No. 2237-98-4 JUDGE CHARLES H. DUFF MAY 23, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA Richard J. Jamborsky, Judge Designate

Gary H. Smith for appellant.

Richard B. Smith, Senior Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

The trial judge convicted appellant of abduction. On

appeal, appellant contends that the evidence was insufficient as

a matter of law to support his conviction because the evidence

failed to prove that he possessed the specific intent to deprive

the victim of her personal liberty or to withhold or conceal her

from another person or authority entitled to her charge. For

the reasons that follow, we affirm appellant's conviction.

"On appeal, 'we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

∗ Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. inferences fairly deducible therefrom.'" Archer v.

Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)

(citation omitted).

So viewed, the evidence proved that on January 22, 1998, as

Yessenia Ruiz, the ten-year-old victim, walked to her school bus

stop on Four Mile Road in Alexandria, Virginia, she noticed

appellant walking towards her. Appellant, who was a stranger to

the victim, grabbed the victim by her wrist and "started pulling

towards" her. Appellant then said, "Look, a pretty girl." The

victim told appellant to let her go, but he did not. The victim

then kicked appellant's leg and he released her. The victim ran

to her bus stop across the street, where her friend, Ruth

Villegas, was waiting. Appellant did not pursue the victim.

Villegas testified that she saw appellant grab the victim.

She stated that when appellant did so, she saw the victim

"kicking away" from him.

Code § 18.2-47 provides that a person shall be guilty of

abduction if he or she "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 [her] personal liberty or

to withhold or conceal [her] from any person . . . ."

"The question of [appellant's] intent must be determined from the outward manifestation of his actions leading to usual and natural results, under the peculiar facts and circumstances disclosed.

- 2 - This determination presents a factual question which lies peculiarly within the province of the [fact finder]." "The [fact finder] may consider the conduct of the person involved and all the circumstances revealed by the evidence." Indeed, "[t]he specific intent in the person's mind may, and often must, be inferred from that person's conduct and statements."

Hughes v. Commonwealth, 18 Va. App. 510, 519-20, 446 S.E.2d 451,

457 (1994) (citations omitted).

In Scott v. Commonwealth, 228 Va. 519, 323 S.E.2d 572

(1984), the Supreme Court held that "the physical detention of a

person, with the intent to deprive him of his personal liberty,

by force, intimidation, or deception, without any asportation of

the victim . . . is sufficient to support a conviction of

abduction." Id. at 526, 323 S.E.2d at 576. In Simms v.

Commonwealth, 2 Va. App. 614, 346 S.E.2d 734 (1986), we found

that "abduction was established as a fact once the Commonwealth

proved that [the defendant] had deprived the victim of her

liberty by threats of violence and use of force." Id. at 618,

346 S.E.2d at 736.

In this case, based upon the testimony of the victim and

Villegas, it was reasonable for the fact finder to conclude that

because the victim had to resort to force after her earlier

verbal attempt to gain her freedom failed that appellant

intended to deprive the victim of her personal liberty. "The

[fact finder] was entitled to infer that appellant intended the

natural and probable consequences of his actions . . . ."

- 3 - Humbert v. Commonwealth, 29 Va. App. 783, 786 n.1, 514 S.E.2d

804, 806 n.1 (1999). In addition, the fact finder could

reasonably conclude that the victim's resistance, coupled with

the witnesses at the bus stop across the street, deterred

appellant from continuing the abduction.

Appellant's reliance upon Johnson v. Commonwealth, 221 Va.

872, 275 S.E.2d 592 (1981), in support of his argument is

misplaced. In Johnson, the Supreme Court reversed appellant's

abduction conviction because the evidence did not support a

finding that the defendant either intended to defile the victim

or deprive her of her personal liberty. Rather, the evidence

was consistent with an intent to persuade her to engage in

consensual sexual intercourse. See id. at 879, 275 S.E.2d at

596-97. Johnson is distinguishable from the facts of the

present case. In this case, no evidence showed that appellant

intended to kiss the victim or sexually assault her in any

manner. Moreover, in this case, unlike Johnson, appellant did

not immediately release the victim upon the first sign of

resistance. Rather, when the victim told appellant to let her

go, he refused, and it was not until after she had kicked him

that he finally let her go.

For these reasons, we affirm appellant's conviction.

Affirmed.

- 4 -