COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Clements and Senior Judge Coleman Argued at Richmond, Virginia
TYRONE ERNEST JACKSON MEMORANDUM OPINION * BY v. Record No. 2994-99-2 JUDGE JEAN HARRISON CLEMENTS MAY 8, 2001 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Thomas N. Nance, Judge
Patricia P. Nagel, Assistant Public Defender (David J. Johnson, Public Defender, on brief), for appellant.
Robert H. Anderson, III, Senior Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Appellant Tyrone Ernest Jackson was convicted in a bench
trial of abduction in violation of Code § 18.2-47. On appeal, he
contends the evidence was not sufficient to sustain the
conviction. We disagree and affirm the conviction.
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 necessary to a
disposition of this appeal.
When the sufficiency of the evidence is challenged on appeal,
we review the evidence "in the light most favorable to the
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Commonwealth, granting to it all reasonable inferences fairly
deducible therefrom." Bright v. Commonwealth, 4 Va. App. 248,
250, 356 S.E.2d 443, 444 (1987). We may not disturb the
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). We are further mindful that the
"credibility of a witness, the weight accorded the testimony, and
the inferences to be drawn from proven facts are matters solely
for the factfinder's determination." Keyes v. City of Virginia
Beach, 16 Va. App. 198, 199, 428 S.E.2d 766, 767 (1993).
Code § 18.2-47 provides in pertinent 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" . . . .
Jackson first contends that the evidence was insufficient to
support his abduction conviction because any detention by him of
the victim, Byron Knight, was merely incidental to the restraint
inherent in the act of assault upon Knight, an offense arising out
of the same conduct and for which he had already been successfully
prosecuted. 1
1 The record before us does not contain the record or transcript of the prior assault conviction. Knight and Jackson both testified that Jackson was charged with assault and battery. Upon inquiry by the trial court as to whether Jackson had been convicted on the assault charge, the Commonwealth conceded that he was found guilty of assault in the district court.
- 2 - Assault, an offense at common law, "require[s] proof of an
attempt or offer to do bodily harm through an unlawful show of
force or violence." Johnson v. Commonwealth, 13 Va. App. 515,
517, 412 S.E.2d 731, 732 (1992). "Abduction, on the other hand,
require[s] proof of asportation or detention while assault [does]
not." Id.
However, in Brown v. Commonwealth, 230 Va. 310, 337 S.E.2d
711 (1985), the Supreme Court recognized that the legislature did
not intend, in enacting Code § 18.2-47, "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. Accordingly, the Court
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, the restraint employed in the commission of the other crime.
Id. at 314, 337 S.E.2d at 713-14.
In this case, the Commonwealth's evidence consisted solely of
the testimony of Byron Knight, the victim. On July 6, 1999,
Knight, the program director of the Adult Rehabilitation Center at
the Salvation Army in Richmond, interviewed Jackson, who had
applied for admission into the long-term rehabilitation program.
- 3 - The interview was conducted in Knight's office. Knight sat behind
his desk and Jackson, who earlier that day had completed the
Salvation Army's nine-page application for admission that
requested personal information about him and his family, sat in a
chair opposite Knight, next to the door. The door was ajar about
twelve inches. Knight interviewed Jackson for approximately ten
minutes and determined that Jackson was not appropriate for
admission into the program.
When Knight told Jackson that he was not suitable for the
program, Jackson became agitated and demanded the admissions
papers and Knight's notes. Knight refused Jackson's demand,
saying the papers belonged to the Salvation Army. Knight then
became anxious because of the "personality change in Jackson" and
stood up to leave.
However, as Knight attempted to leave, Jackson stood up,
closed the door, and put his foot against it. When Knight grabbed
the doorknob to open the door, Jackson hit Knight's hand off the
knob and again demanded "his" papers. Knight then went to the
other end of the office to telephone for help. Jackson followed
Knight, wrapped his arms around him trying to grab the papers, and
put his finger on the button on the telephone to prevent Knight
from making a call. The two made several trips back and forth
between the door and the telephone, each time Jackson preventing
Knight from leaving the office. Finally, Jackson grabbed the
papers and left the office.
- 4 - Knight testified that he told Jackson he wanted to leave the
office. He also yelled for help, he said, but no one responded.
Knight also testified that during the incident, in an effort to
calm Jackson, he tried to tear the papers up himself. However,
Knight was able to leave the office only after Jackson had left.
Knight estimated that he was trapped in his office for
approximately five to ten minutes. On cross-examination, Knight
testified that, while at one point in the tussle Jackson's hand
brushed the back of his head, Jackson did not hit him in the face
during the incident.
Testifying in his own defense at trial, Jackson said that he
became frustrated and disappointed when Knight refused to admit
him into the program because he had been told in a telephone
interview before going to the rehabilitation center that he had
already been accepted into the program. He demanded the papers
back, he said, because they contained his personal information,
which he felt belonged to him. Jackson denied at trial that he
closed the door to Knight's office, blocked Knight's access to the
door, or prevented Knight from using the telephone. According to
his testimony, all he did was grab the papers off Knight's desk
and leave the office.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Clements and Senior Judge Coleman Argued at Richmond, Virginia
TYRONE ERNEST JACKSON MEMORANDUM OPINION * BY v. Record No. 2994-99-2 JUDGE JEAN HARRISON CLEMENTS MAY 8, 2001 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Thomas N. Nance, Judge
Patricia P. Nagel, Assistant Public Defender (David J. Johnson, Public Defender, on brief), for appellant.
Robert H. Anderson, III, Senior Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Appellant Tyrone Ernest Jackson was convicted in a bench
trial of abduction in violation of Code § 18.2-47. On appeal, he
contends the evidence was not sufficient to sustain the
conviction. We disagree and affirm the conviction.
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 necessary to a
disposition of this appeal.
When the sufficiency of the evidence is challenged on appeal,
we review the evidence "in the light most favorable to the
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Commonwealth, granting to it all reasonable inferences fairly
deducible therefrom." Bright v. Commonwealth, 4 Va. App. 248,
250, 356 S.E.2d 443, 444 (1987). We may not disturb the
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). We are further mindful that the
"credibility of a witness, the weight accorded the testimony, and
the inferences to be drawn from proven facts are matters solely
for the factfinder's determination." Keyes v. City of Virginia
Beach, 16 Va. App. 198, 199, 428 S.E.2d 766, 767 (1993).
Code § 18.2-47 provides in pertinent 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" . . . .
Jackson first contends that the evidence was insufficient to
support his abduction conviction because any detention by him of
the victim, Byron Knight, was merely incidental to the restraint
inherent in the act of assault upon Knight, an offense arising out
of the same conduct and for which he had already been successfully
prosecuted. 1
1 The record before us does not contain the record or transcript of the prior assault conviction. Knight and Jackson both testified that Jackson was charged with assault and battery. Upon inquiry by the trial court as to whether Jackson had been convicted on the assault charge, the Commonwealth conceded that he was found guilty of assault in the district court.
- 2 - Assault, an offense at common law, "require[s] proof of an
attempt or offer to do bodily harm through an unlawful show of
force or violence." Johnson v. Commonwealth, 13 Va. App. 515,
517, 412 S.E.2d 731, 732 (1992). "Abduction, on the other hand,
require[s] proof of asportation or detention while assault [does]
not." Id.
However, in Brown v. Commonwealth, 230 Va. 310, 337 S.E.2d
711 (1985), the Supreme Court recognized that the legislature did
not intend, in enacting Code § 18.2-47, "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. Accordingly, the Court
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, the restraint employed in the commission of the other crime.
Id. at 314, 337 S.E.2d at 713-14.
In this case, the Commonwealth's evidence consisted solely of
the testimony of Byron Knight, the victim. On July 6, 1999,
Knight, the program director of the Adult Rehabilitation Center at
the Salvation Army in Richmond, interviewed Jackson, who had
applied for admission into the long-term rehabilitation program.
- 3 - The interview was conducted in Knight's office. Knight sat behind
his desk and Jackson, who earlier that day had completed the
Salvation Army's nine-page application for admission that
requested personal information about him and his family, sat in a
chair opposite Knight, next to the door. The door was ajar about
twelve inches. Knight interviewed Jackson for approximately ten
minutes and determined that Jackson was not appropriate for
admission into the program.
When Knight told Jackson that he was not suitable for the
program, Jackson became agitated and demanded the admissions
papers and Knight's notes. Knight refused Jackson's demand,
saying the papers belonged to the Salvation Army. Knight then
became anxious because of the "personality change in Jackson" and
stood up to leave.
However, as Knight attempted to leave, Jackson stood up,
closed the door, and put his foot against it. When Knight grabbed
the doorknob to open the door, Jackson hit Knight's hand off the
knob and again demanded "his" papers. Knight then went to the
other end of the office to telephone for help. Jackson followed
Knight, wrapped his arms around him trying to grab the papers, and
put his finger on the button on the telephone to prevent Knight
from making a call. The two made several trips back and forth
between the door and the telephone, each time Jackson preventing
Knight from leaving the office. Finally, Jackson grabbed the
papers and left the office.
- 4 - Knight testified that he told Jackson he wanted to leave the
office. He also yelled for help, he said, but no one responded.
Knight also testified that during the incident, in an effort to
calm Jackson, he tried to tear the papers up himself. However,
Knight was able to leave the office only after Jackson had left.
Knight estimated that he was trapped in his office for
approximately five to ten minutes. On cross-examination, Knight
testified that, while at one point in the tussle Jackson's hand
brushed the back of his head, Jackson did not hit him in the face
during the incident.
Testifying in his own defense at trial, Jackson said that he
became frustrated and disappointed when Knight refused to admit
him into the program because he had been told in a telephone
interview before going to the rehabilitation center that he had
already been accepted into the program. He demanded the papers
back, he said, because they contained his personal information,
which he felt belonged to him. Jackson denied at trial that he
closed the door to Knight's office, blocked Knight's access to the
door, or prevented Knight from using the telephone. According to
his testimony, all he did was grab the papers off Knight's desk
and leave the office.
Officer Robert Rogers, testifying for the defense, said
Knight told him that Jackson struck Knight in the left side of the
face, grabbed the papers, and left the office. Officer Rogers
- 5 - also testified, though, that Knight told him that Jackson would
not let him leave the office for approximately ten minutes.
The trier of fact is not required to accept a party's
evidence in its entirety, but is free to believe or disbelieve in
part or in whole the testimony of any witness. Rollston v.
Commonwealth, 11 Va. App. 535, 547, 399 S.E.2d 823, 830 (1991).
Thus, the trial court was not required to accept Jackson's version
of what occurred. "In its role of judging witness credibility,
the fact finder is entitled to disbelieve the self-serving
testimony of the accused and to conclude that the accused is lying
to conceal his guilt." Marable v. Commonwealth, 27 Va. App. 505,
509-10, 500 S.E.2d 233, 235 (1998).
We hold that the trial court, as the trier of fact, could
have reasonably concluded from the evidence before it that Jackson
abducted, as well as assaulted, Knight and that the commission of
the abduction was complete when Jackson shut the door and put his
foot against it to keep Knight from leaving the room. That
initial act of detention, we find, was not inherent in the later
acts of assault. Had Knight surrendered the papers to Jackson at
that point, no assault would have occurred. Only after that
initial, separate act of detention did Jackson's actions,
including his hitting Knight's hand off the doorknob and wrapping
his arms around Knight, constitute acts of assault involving
incidental acts of restraint. We hold, therefore, that, because
it was based on different conduct than his earlier prosecution for
- 6 - assault, Jackson's successive prosecution for abduction was not
barred.
Jackson further contends that the evidence was insufficient
to support his abduction conviction because he thought the papers
containing his "personal, confidential" information belonged to
him. He concludes, therefore, that his detention of Knight to get
them back was justified or excused.
The bona fide claim of right defense that Jackson asserts
here has been applied in Virginia in the context of negating
criminal intent to commit a crime where the unlawful "taking" of
property is an element of the crime. See, e.g., Butts v.
Commonwealth, 145 Va. 800, 133 S.E. 764 (1926). Jackson, however,
readily admits in his brief on appeal that there is no authority
in Virginia for a defense of bona fide claim of right allowing the
abduction of an individual in order to recover property. Nor do
we find such authority, and we decline Jackson's invitation to
adopt such a defense here. Furthermore, the record fully supports
the trial court's determination that the abduction was not legally
justified or excused. 2
2 Jackson also argues on appeal that the evidence was insufficient to show that he intended to deprive the victim of his liberty. However, this argument was never presented to the trial court. Thus, it was not properly preserved, and Rule 5A:18 bars our consideration of it on appeal. Furthermore, we find no reason in the record to invoke the "good cause" or "ends of justice" exceptions.
- 7 - We hold, therefore, that the evidence was sufficient to prove
beyond a reasonable doubt that Jackson committed the subject
abduction. Additionally, we hold that the conviction is not
plainly wrong. Accordingly, we affirm the conviction.
Affirmed.
- 8 -