Ricky Ray Wilkins v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: December 27, 2001
• Docket: 0353011
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Frank and Clements Argued at Chesapeake, Virginia

RICKY RAY WILKINS MEMORANDUM OPINION * BY v. Record No. 0353-01-1 JUDGE JEAN HARRISON CLEMENTS DECEMBER 27, 2001 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON Wilford Taylor, Jr., Judge

David M. Lee for appellant.

Steven A. Witmer, Assistant Attorney General (Randolph A. Beales, Attorney General, on brief), for appellee.

Ricky Ray Wilkins was convicted in a bench trial of

abduction for pecuniary benefit in violation of Code § 18.2-48. 1

On appeal, he contends the trial court erred in ruling the

evidence was sufficient to convict him of abduction under Code

§ 18.2-48 because the detention of the victim was not committed

with the intent to extort money or pecuniary benefit and the

detention was inherent to the commission of the robbery.

Finding no error, we affirm the conviction.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 Wilkins was also convicted of two counts of robbery in violation of Code § 18.2-58. He does not challenge those convictions on appeal. As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

value, this opinion recites only those facts and incidents of

the proceedings as necessary to the parties' understanding of

the disposition of this appeal.

Wilkins concedes the evidence presented at trial was

sufficient to show that, in making the robbery victim, Cynthia

Humphrey, go into the store's bathroom and wait there while he

left the store, he committed "simple abduction." He contends,

however, there was no evidence to show that, in detaining

Humphrey, he had the intent "to extort money or pecuniary

benefit." Thus, he concludes, the trial court erred in finding

the evidence was sufficient to convict him of abduction under

Code § 18.2-48.

When the sufficiency of the evidence is challenged on

appeal, we review the evidence "in the light most favorable to

the Commonwealth, granting to it all reasonable inferences

fairly deducible therefrom." Bright v. Commonwealth, 4 Va. App.

248, 250, 356 S.E.2d 443, 444 (1997). We will not disturb a

conviction unless it is plainly wrong or unsupported by the

evidence. Sutphin v. Commonwealth, 1 Va. App. 241, 243, 337

S.E.2d 897, 898 (1985).

To establish Wilkins' guilt under Code § 18.2-48, the

Commonwealth was required to prove beyond a reasonable doubt

that Wilkins abducted Humphrey "with the intent to extort money

- 2 - or pecuniary benefit." The Supreme Court of Virginia has held

that "an abduction committed for the purpose of avoiding an

arrest for a robbery or to retain the fruits of a robbery is

perpetrated with the intent to extort pecuniary benefit."

Cardwell v. Commonwealth, 248 Va. 501, 511, 450 S.E.2d 146, 152

(1994). 2

Here, the evidence established that Wilkins approached the

counter where Humphrey was working in the store, told her it was

a robbery, and, holding his hand under his shirt "like he had a

weapon," ordered her to take the money out of the cash register

and put it in a bag. After she gave him the money, he ordered

her into the store's back room and told her to go into the

adjoining bathroom and stay there for ten seconds. When

Humphrey went into the bathroom, Wilkins left the store.

Clearly, the evidence shows that Wilkins ordered Humphrey

into the bathroom for the purpose of facilitating his escape

from the scene. Thus, the evidence supports a finding that "the

2 Acknowledging that his position is otherwise untenable, Wilkins invites us to overrule Cortner v. Commonwealth, 222 Va. 557, 281 S.E.2d 908 (1981), and Barnes v. Commonwealth, 234 Va. 130, 360 S.E.2d 196 (1987), and presumably their progeny, including Cardwell, because they "ignore traditional principles of statutory construction." Those cases, Wilkins argues, "were wrongfully decided, because they ignore the express statutory requirement of . . . Code § 18.2-48 that there be an intent to 'extort,' not merely a general desire to obtain financial benefit." However, even were we to find his argument persuasive, we must decline Wilkins' invitation because "we are bound by the decisions of the Supreme Court of Virginia and are without authority to overrule [them]." Roane v. Roane, 12 Va. App. 989, 993, 407 S.E.2d 698, 700 (1991).

- 3 - abduction was committed to protect the fruits of the robbery and

to escape an arrest." Id. We hold, therefore, that the

evidence was sufficient to prove beyond a reasonable doubt that

Wilkins abducted Humphrey with the intent to extort pecuniary

benefit.

Wilkins further argues that the evidence was insufficient

to support a conviction of abduction because his brief detention

of Humphrey was not distinct from the restraint necessary to

complete the robbery. The Commonwealth contends this argument

was not preserved for appeal in accordance with Rule 5A:18. We

agree with the Commonwealth.

"The Court of Appeals will not consider an argument on

appeal which was not presented to the trial court." Ohree v.

Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998);

see Rule 5A:18. The purpose of the rule is to ensure that the

trial court and opposing party are given the opportunity to

intelligently address, examine, and resolve issues in the trial

court, thus avoiding unnecessary appeals. See Lee v. Lee, 12

Va. App. 512, 514, 404 S.E.2d 736, 737 (1991) (en banc); Kaufman

v. Kaufman, 12 Va. App. 1200, 1204, 409 S.E.2d 1, 3-4 (1991).

Here, Wilkins argued at trial that his detention of

Humphrey did not rise to the level of abduction solely because

Humphrey, who left the bathroom before ten seconds had passed,

"was certainly not in there against her will." Wilkins never

argued at the trial level that his detention of Humphrey was

- 4 - merely that detention inherent in carrying out the robbery.

Thus, he is procedurally barred from making that argument for

the first time on appeal. Furthermore, our review of the record

in this case does not reveal any reason to invoke the "good

cause" or "ends of justice" exceptions to Rule 5A:18.

Accordingly, we affirm Wilkins' conviction.

Affirmed.

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