Carr v. Commonwealth

• Decision Date: 24 July 2018
• Docket Number: Record No. 1054-17-1
• Citation: 816 S.E.2d 591,69 Va.App. 106
• Parties: Jeffrey Nigel CARR v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

69 Va.App. 106

816 S.E.2d 591

Jeffrey Nigel CARR

v.COMMONWEALTH of Virginia

Record No. 1054-17-1

Court of Appeals of Virginia, Norfolk.

JULY 24, 2018

Kristin Paulding (7 Cities Law, on brief), for appellant.

Rosemary V. Bourne, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges O’Brien, Russell and Retired Judge Bumgardner^*

OPINION BY JUDGE MARY GRACE O’BRIEN

Following a bench trial, Jeffrey Nigel Carr ("appellant") was convicted of sex trafficking, in violation of Code § 18.2-357.1(A), conspiracy to commit sex trafficking, in violation of Code §§ 18.2-22 and 18.2-357.1(A)¹ , abduction, in violation of Code § 18.2-47(A), conspiracy to commit abduction, in violation of Code §§ 18.2-22 and 18.2-47(A), and use of a firearm in the commission of abduction, in violation of Code § 18.2-53.1. Appellant challenges the sufficiency of the evidence finding him guilty of the offenses. Finding no error, we affirm.

BACKGROUND

Following well-established legal principles, we consider the facts in the light most favorable to the prevailing party, the Commonwealth. Riner v. Commonwealth, 268 Va. 296, 303, 601 S.E.2d 555, 558 (2004). So viewed, the evidence established that in September 2015, the victim ("R.S."), a homeless 24-year-old heroin addict, met Justin McQuitty in North Carolina where they had sex and used heroin together. R.S. subsequently accompanied McQuitty to a hotel in Chesapeake, Virginia, and they were joined by some of McQuitty’s friends, including appellant. After a discussion about how the group could earn money, a third man, Alonzo McClenny, suggested that R.S. and another woman could post prostitution advertisements online at Backpage. McQuitty and McClenny told R.S. that she needed to make money because she "couldn’t live for free." McClenny showed R.S. how to post photographs of herself on Backpage, and he created her first advertisement. R.S. continued posting advertisements, engaged in prostitution, and gave all money she received to McQuitty. He provided her with heroin.

After some time, the group relocated to a Red Roof Inn in Virginia Beach and rented two rooms facing each other, using the proceeds from R.S.’s prostitution. R.S. and McQuitty stayed in one room that R.S. also used for prostitution appointments, and the rest of the group, including appellant, slept in the second room. When a prostitution appointment was scheduled, R.S. advised the group to leave her room and stay in the second room. The group remained at the Red Roof Inn for "[q]uite a few days."

On September 16, R.S. left the hotel after a dispute with other members of the group. She rented a room at a hotel next door, America’s Best Value Inn. The second day she was there, R.S. called the other woman in the group ("T.") and asked her to bring some clothes to the hotel. T. came to R.S.’s room accompanied by another man, Brandon Bethel. R.S. was suffering from heroin withdrawal, so McQuitty brought her some heroin and left Bethel "to keep an eye on [her]." Bethel and McQuitty pressured R.S. to post a prostitution advertisement, and reminded her that she had not made any money that day.

At approximately 11:00 p.m., McQuitty returned to R.S.’s room with McClenny and appellant. The men berated R.S., called her a "liar and a junkie," and accused her of "giving [her] money to somebody else." During this confrontation, McClenny was holding a black handgun by his side. Appellant, who was pacing back and forth in an agitated state, told the other men that R.S. was lying and "they needed to slam-dunk on [her] ass." R.S. testified that "slam-dunk" refers to pistol-whipping.

R.S. informed the men that she "wasn’t going to work for them anymore and [she] was done with it all and that [she] didn’t need them" and "could do it on [her] own." At that point, McClenny brought the gun to R.S.’s head and told her that "the only way [she] was leaving was either with [McQuitty] or in a body bag." R.S. testified she interpreted this statement to mean that the men would kill her if she did not leave with them. McClenny told the other men to gather R.S.’s bags. R.S. returned to the Red Roof Inn, surrounded by the four men. Appellant carried some of her belongings.

When they got back to the Red Roof Inn, R.S. continued taking prostitution appointments. She testified that she did not want to engage in prostitution, but she understood that was "what was supposed to happen" and "[t]hat’s what [she] was there for." She felt that returning to prostitution was necessary "to stay alive" because the men had threatened her.

R.S.’s first appointment robbed her. When she told Bethel, he responded that "it was going to be really bad for [her] ... if [she] didn’t have that money" and that she would be pistol-whipped if she did not do what she was told. Because she was afraid of the consequences, R.S. left in the middle of the night after everyone was asleep.

R.S. stayed with a former roommate in Chesapeake for a few days and warned him that the people she was with were "vindictive and violent," had guns, and were "the type of people you wouldn’t involve with the police." However, R.S. subsequently reunited with McQuitty and continued to use heroin and engage in prostitution. Appellant stayed with them at their hotel, and they used R.S.’s prostitution earnings to rent the hotel rooms.

During this time, an investigator from the Dare County (N.C.) Sheriff’s Office received information that a young woman was being held against her will and forced to commit acts of prostitution. The investigator coordinated with members of the Virginia Beach Police Department, who arrested McQuitty at a hotel in Virginia Beach. R.S., who was with McQuitty, told the police that she feared McClenny and indicated that appellant may be with McClenny because he "rides around with him a lot." A police officer found appellant and McClenny in a car together in Virginia Beach.

At trial, Detective Ryan Chabot of the Virginia Beach Police Department Special Investigations Unit testified as an expert in the field of human trafficking operations and sex worker victimizations. He stated that in the approximately five hundred human trafficking cases he had investigated, approximately half of the victims were drug addicts. He also explained that sex traffickers often rent two hotel rooms: one for prostitution appointments, and the other as a place for prostitutes or pimps to sleep or wait for appointments. Appellant possessed keys to two hotel rooms at the time he was arrested.

DISCUSSION

In assessing the sufficiency of the evidence, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime[s] beyond a reasonable doubt." Kelly v. Commonwealth, 41 Va.App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc ) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) ). This Court does not "substitute [its] judgment for that of the trier of fact."

Wactor v. Commonwealth, 38 Va.App. 375, 380, 564 S.E.2d 160, 162 (2002). "[W]e will not disturb the trial court’s judgment unless it is plainly wrong or without evidence to support it." Hedrick v. Commonwealth, 257 Va. 328, 340, 513 S.E.2d 634, 641 (1999).

A. Sufficiency of the Evidence to Prove Abduction

Code § 18.2-47(A) provides, in relevant part, that a person is guilty of abduction if

by force, intimidation or deception, and without legal justification or excuse, [he or she] seizes, takes, transports, detains or secretes another person with the intent to deprive such other person of his personal liberty.

At trial, the Commonwealth’s theory of the case was that appellant committed abduction as a principal in the second degree. "A principal in the second degree is one not the perpetrator, but present, aiding and abetting the act done, or keeping watch or guard at some convenient distance." Brown v. Commonwealth, 130 Va. 733, 736, 107 S.E. 809, 810 (1921) (quoting Minor’s Synopsis Crim. Law, p. 11). "[M]ere presence and consent will not suffice .... The defendant’s conduct must consist of ‘inciting, encouraging, advising or assisting in the [abduction].’ " Rollston v. Commonwealth, 11 Va.App. 535, 539, 399 S.E.2d 823, 825 (1991) (quoting Frye v. Commonwealth, 231 Va. 370, 389, 345 S.E.2d 267, 280 (1986) ).

To prove aiding and abetting, the evidence must establish that a defendant is "guilty of some overt act, or ... share[s] the criminal intent of the principal." Triplett v. Commonwealth, 141 Va. 577, 586, 127 S.E. 486, 489 (1925). "When the alleged accomplice is actually present and performs overt acts of assistance or encouragement, he has communicated to the perpetrator his willingness to have the crime proceed and has demonstrated that he shares the criminal intent of the perpetrator." Rollston, 11 Va.App. at 539, 399 S.E.2d at 825-26 (quoting R. Groot, Criminal Offenses and Defenses in Virginia 183 (1984) ).

Here, appellant, along with three other men, confronted R.S. in her room at America’s Best Value Inn and accused her of giving someone else her money. One man, McClenny, prominently displayed a firearm during this confrontation. Appellant encouraged him to "slam-dunk on her ass," referring to pistol-whipping R.S. When R.S. said she was not going to work for the men any longer, McClenny held the firearm to her head and told her that "the only way [she] was leaving was either with [McQuitty] or in a body bag." Appellant then helped gather and carry R.S.’s bags back to the Red Roof Inn.

Appellant contends that because there was no evidence that he interacted with R.S. after she returned to the Red Roof Inn, and no evidence that he held her against her will or prevented her from leaving that hotel, he cannot be found guilty of abduction. We disagree. The crime was complete when appellant and his co-conspirators forced R.S. to return under duress to the Red Roof Inn....