Wiggins v. Commonwealth

622 S.E.2d 774, 47 Va. App. 173, 2005 Va. App. LEXIS 507
CourtCourt of Appeals of Virginia
DecidedDecember 13, 2005
Docket2197041
StatusPublished
Cited by26 cases

This text of 622 S.E.2d 774 (Wiggins v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wiggins v. Commonwealth, 622 S.E.2d 774, 47 Va. App. 173, 2005 Va. App. LEXIS 507 (Va. Ct. App. 2005).

Opinions

ROBERT J. HUMPHREYS, Judge.

Appellant Corey Alexander Wiggins (“Wiggins”) appeals his convictions, following a jury trial, for three counts of abduction [176]*176with the intent to extort money, in violation of Code § 18.2-48, and three counts of using a firearm in the commission of a felony, in violation of Code § 18.2-53.1.1 On appeal, Wiggins contends that the trial court erroneously denied his motion to strike the three counts of abduction and the three related counts for using a firearm in the commission of a felony, reasoning that the detentions allegedly constituting the abductions were incidental to the commission of the armed robberies during which they occurred. For the reasons that follow, we reverse two of the three convictions for abduction and the two related firearm charges. The remaining convictions are affirmed.

I. BACKGROUND

In accord with settled standards of appellate review, we view the evidence and all reasonable inferences that may be drawn from that evidence in the light most favorable to the Commonwealth, the party prevailing below. Yopp v. Hodges, 43 Va.App. 427, 430, 598 S.E.2d 760, 762 (2004). So viewed, the evidence in this case establishes the following:

A. The December 29, 2002 Robbery and Abduction

At approximately 6:05 a.m. on December 29, 2002, Wiggins entered a Hardee’s fast-food restaurant located in Hampton, Virginia. Wiggins, who was masked and carrying a gun wrapped in a sock, jumped across the counter, pointed the gun at an employee, and said, “Move back.” The employee, along with a co-worker, “moved back against the wall with [her] hands up.” At that point, Robert Eatman, the shift supervisor, came out of the manager’s office and started to close the door. Eatman saw the two employees with their hands up and said, “Oh, shit.” Wiggins then pointed the gun at Eatman and told Eatman to “give him the money.” Eatman turned [177]*177around and, with Wiggins following him, walked approximately seven feet back into the office. Once inside the office, Eatman knelt, opened the safe, and gave Wiggins the night deposit bag containing the money. Wiggins left the office, said, “Have a nice day” to the employees still standing against the wall with their hands up, and left the restaurant. The robbery lasted approximately five minutes.

B. The January 17, 2003 Robbery and Abduction

At approximately 5:30 a.m. on January 17, 2003, Wiggins entered another Hardee’s fast-food restaurant. Wiggins, who was again masked and holding a gun covered by a sock, jumped over the counter, entered the kitchen, and pointed the gun at Jodi Mendoza, manager of the restaurant. Wiggins told Mendoza that “he wanted the money.” Mendoza told Wiggins that she needed to go into the office and open the safe. Mendoza then walked approximately five feet to the office, unlocked the office door, entered the office, opened the safe, and handed Wiggins a bag of money. Wiggins then tried to open another safe in the office. When Mendoza told him that it was on an alarm system, he told her to open it for him. Mendoza informed Wiggins that she could not open the second safe for another fifteen minutes because it was on a time delay. Wiggins then left the office and went out the back door of the restaurant. The robbery lasted between five and ten minutes.

C. The February 6, 2003 Robbery and Abduction

On the evening of February 6, 2003, Wiggins entered a Subway fast-food restaurant, again masked and carrying a gun wrapped in a sock. Wiggins jumped over the counter and entered the back of the restaurant, where Wiggins told two Subway employees to “give [him] the money in the registers.” One of the employees, Jamie Drewery, walked approximately twenty-three feet from the back of the restaurant to the front cash register. Wiggins followed. Drewery opened the front cash register, and Wiggins took the money from the register. Wiggins then told Drewery to open the cash register for the [178]*178drive-through. Drewery walked over to the drive-through cash register, which was located “seven or eight” feet away, and opened that register as well. Wiggins then took the money from the drive-through cash register. Wiggins also asked Drewery to open the safe, but Drewery told Wiggins that she could not open it because it was on a time delay. Wiggins “looked around a little bit,” and he then left the restaurant through the back door.

D. Procedural History

On December 1, 2003, a grand jury indicted Wiggins for three counts of robbery, in violation of Code § 18.2-58, three counts of abduction with intent to extort money, in violation of Code § 18.2-48, six counts of using a firearm in the commission of a felony, in violation of Code § 18.2-53.1, and three counts of wearing a mask in public, in violation of Code § 18.2-422.2

During trial, Wiggins moved to strike the three abduction charges and the three related charges for use of a firearm in the commission of a felony, arguing that the alleged abductions were not “separate and distinct offense[s]” but were, instead, “just an intrinsic part of the robber[ies].” The Commonwealth responded that the act of “moving each of these three managers from one point to another within the store” constitutes an act “separate and apart and not incidental to the restraint.” The trial court agreed with the Commonwealth and denied the motion to strike, reasoning that the evidence “suggests that the abductions ... were separate and apart and not intrinsic to the robbery,” but further noting that “the jury, as the fact finders, may come to some different conclusion.”

Wiggins renewed his motion to strike at the close of all the evidence, and the trial court again denied the motion. The [179]*179court then instructed the jury that, to establish that Wiggins committed the crime of abduction with the intent to extort money, the Commonwealth “must prove that there was a detention of the victim greater than the restraint that is intrinsic in a robbery.” During closing arguments, however, Wiggins did not argue to the jury that the abductions were merely incidental to the armed robberies, focusing instead on the defense of mistaken identity.

The jury found Wiggins guilty of all fifteen counts charged in the indictments, and they recommended that Wiggins be sentenced to twenty years for each of the three counts of abduction with intent to extort money, five years for each of the three counts of robbery, and five years for each of the six counts of using a firearm in the commission of a felony, resulting in a total recommended sentence of 105 years in prison. The jury also recommended that Wiggins receive a $50 fine for each of the three counts of wearing a mask in public.

Defense counsel then moved to set aside the verdict “with regard to the abduction.” The trial court, noting that “the matters that the jury had to decide were matters of fact[ ] appropriate for the finder of fact,” denied the motion and imposed the sentence recommended by the jury.3 Wiggins appeals.

II. ANALYSIS

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Cite This Page — Counsel Stack

Bluebook (online)
622 S.E.2d 774, 47 Va. App. 173, 2005 Va. App. LEXIS 507, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wiggins-v-commonwealth-vactapp-2005.