Clanton v. Com.

• Decision Date: 17 March 2009
• Docket Number: Record No. 1018-07-2.
• Citation: 53 Va. App. 561,673 S.E.2d 904
• Parties: Kenneth Anthony CLANTON v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

673 S.E.2d 904

53 Va. App. 561

Kenneth Anthony CLANTON v. COMMONWEALTH of Virginia.

Record No. 1018-07-2.

Court of Appeals of Virginia, Richmond.

March 17, 2009.

James T. Maloney (Maloney & David, on brief), Falls Church, for appellant.

Jennifer C. Williamson, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: FELTON, C.J., and ELDER, FRANK, HUMPHREYS, KELSEY, McCLANAHAN, HALEY, PETTY, BEALES and POWELL, JJ., and CLEMENTS,^* S.J.

UPON A REHEARING EN BANC

McCLANAHAN, Judge.

Kenneth Anthony Clanton was convicted, in a bench trial, of abduction in violation of Code § 18.2-47, and use of a firearm in the commission of abduction in violation of Code § 18.2-53.1. Clanton contends the evidence was insufficient to support his convictions. A panel majority of this Court agreed and reversed the convictions. We granted a petition for rehearing en banc and stayed the mandate of the panel decision. Upon rehearing en banc, we affirm the trial court.

I. BACKGROUND

On appeal, we review the evidence in the "light most favorable" to the Commonwealth. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003) (citation omitted). That principle requires us to "`discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences that may be drawn therefrom.'" Kelly v. Commonwealth, 41 Va.App. 250, 254, 584 S.E.2d 444, 446 (2003) (en banc) (quoting Watkins v. Commonwealth, 26 Va.App. 335, 348, 494 S.E.2d 859, 866 (1998)). See also Bolden v. Commonwealth, 275 Va. 144, 147-48, 654 S.E.2d 584, 586 (2008); Molina v. Commonwealth, 272 Va. 666, 671, 636 S.E.2d 470, 473 (2006); Viney v. Commonwealth, 269 Va. 296, 299, 609 S.E.2d 26, 28 (2005); Walton v. Commonwealth, 255 Va. 422, 425-26, 497 S.E.2d 869, 871 (1998).

So viewed, the evidence proved Clanton was one of four armed intruders, three males and one female, who attempted to rob occupants of a home that Mike Mabry shared with his mother, his nephew, Debryant, and Debryant's infant daughter. On the morning of the attempted robbery, two of the intruders knocked on the door and asked Mike if they could use his telephone claiming their vehicle was inoperable. Mike retrieved the telephone and handed it to the female who purported to make a telephone call. After Mike turned around to go into the kitchen, the male put a gun to the back of his head and told him to be quiet while two more males entered the home with guns. The intruder holding the gun to Mike's head in the kitchen ordered him to lie on the floor, hit Mike in the head with the gun, and bound Mike's mouth, legs, and hands with duct tape.

While Mike remained bound by duct tape in the kitchen, the intruders ran throughout the house, with their guns drawn, demanding money. They kicked down the door to a bedroom in which Debryant, his infant daughter, and his girlfriend, Simone Lewis,¹ were sleeping. Debryant was pulled out of bed, shoved on the floor, bound in duct tape, and held at gunpoint while the intruders demanded money from him.

One intruder grabbed Simone, pulled her out of bed, shoved her down the hallway, and into another bedroom. The intruder who grabbed Simone continued to threaten her, hold her at gunpoint, and demand money. One intruder ordered Simone to turn over and then threw a blanket over Simone's head. Another bound Simone's hands and legs with duct tape.

At some point during the attempted robbery, one of the intruders grabbed Debryant's infant daughter out of his bed, brought the infant into the room in which Simone was being held, and threw the infant on a bed, telling Simone to "watch her." According to Simone, one of the intruders told her Debryant repeatedly said his daughter was "in here" before the infant was taken from Debryant's bed. Debryant did not ask or give permission to the intruders to take his daughter from him.

After approximately thirty minutes, Mike managed to break free from the duct tape and run next door to his cousin's house and then outside to the road in front of his house to seek help. By that time, the intruders were outside in his front yard and one of them fired two gunshots at Mike without hitting him before all four jumped into a vehicle fleeing the scene. Mike went back into his home, found Debryant and Simone, removed the duct tape from them, and called the police.

The trial court convicted Clanton of abduction of the infant and use of a firearm in the commission of the abduction.²

II. ANALYSIS

When considering a challenge to the sufficiency of the evidence on appeal, a reviewing court does not "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original; citation and internal quotation marks omitted). Instead, we ask only "`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 beyond a reasonable doubt.'" Maxwell v. Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008) (quoting Jackson, 443 U.S. at 319, 99 S.Ct. 2781) (emphasis in original). See also McMillan v. Commonwealth, 277 Va. 11, 19, 671 S.E.2d 396, 400 (2009); Jones v. Commonwealth, 277 Va. 171, 182, 670 S.E.2d 727, 734 (2009). These principles recognize that an appellate court is "not permitted to reweigh the evidence," Nusbaum v. Berlin, 273 Va. 385, 408, 641 S.E.2d 494, 507 (2007), because appellate courts have no authority "to preside de novo over a second trial," Haskins v. Commonwealth, 44 Va.App. 1, 11, 602 S.E.2d 402, 407 (2004). This deferential standard of review "applies not only to the historical facts themselves, but the inferences from those facts as well." Crowder v. Commonwealth, 41 Va.App. 658, 663 n. 2, 588 S.E.2d 384, 387 n. 2 (2003). Thus, a fact finder may "draw reasonable inferences from basic facts to ultimate facts," Haskins, 44 Va.App. at 10, 602 S.E.2d at 406 (citations omitted), unless doing so would push "into the realm of non sequitur," Thomas v. Commonwealth, 48 Va.App. 605, 608, 633 S.E.2d 229, 231 (2006) (citation omitted).

A. Abduction Conviction

Clanton argues the evidence was insufficient to support his conviction for abduction because (1) the infant was taken for her own protection, not with a wrongful intent, and (2) there was no evidence the infant was taken by force, intimidation or deceit.

The trial court found Clanton guilty of abduction in violation of Code § 18.2-47, which provides in relevant part:

A. Any person, who, 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 his personal liberty or to withhold or conceal him from any person, authority or institution lawfully entitled to his charge, shall be deemed guilty of "abduction" ....

"This codification wholly `supercedes the common law' and effectively combines the common law offenses of kidnapping, abduction, and false imprisonment `into one statutory felony.'" Walker v. Commonwealth, 47 Va.App. 114, 120, 622 S.E.2d 282, 285 (2005) (quoting John L. Costello, Virginia Criminal Law & Procedure § 7.1, at 119-20 (3d ed.2002)), aff'd, 272 Va. 511, 636 S.E.2d 476 (2006). A conviction under the abduction statute "requires only a showing of `physical detention of a person, with the intent to deprive him of his personal liberty, by force, intimidation, or deception,' without more." Id. (quoting Scott v. Commonwealth, 228 Va. 519, 526, 323 S.E.2d 572, 576 (1984)).

1. Wrongful Intent

Clanton argues the Commonwealth failed to prove abduction because "the movement of the child was at the request of the parents and for the child's own protection rather than for a wrongful purpose."

The Commonwealth was required to prove the infant was seized or taken "with the intent to deprive [her] of [her] personal liberty or to withhold or conceal [her] from any person, authority or institution lawfully entitled to [her] charge." Code § 18.2-47. Although Clanton argues the infant was not taken with a wrongful intent, the trial court found the evidence proved "a seizure or asportation with intent to deprive [such] other person of personal liberty or to withhold him from any person lawfully entitled to his charge." Since the infant was in fact taken from Debryant, her father and the person lawfully entitled to her charge, it was certainly reasonable for the trial court to conclude Clanton intended to do precisely what he did—withhold the infant from the person lawfully entitled to her charge.³ Walker, 47 Va.App. at 121, 622 S.E.2d at 286 (fact finder could infer defendant intended to detain victim because that is exactly what defendant did); see also Scott, 228 Va. at 524, 323 S.E.2d at 575 (evidence of intent sufficient for conviction of abduction where defendant intended to make victim sit on the couch long enough for her to watch him kill himself); Joyce v. Commonwealth, 210 Va. 272, 170 S.E.2d 9 (1969) (depriving occupants of a house of personal liberty, at gunpoint, to detain them satisfied intent requirement of abduction statute).⁴ Clanton intended the natural and probable consequences of his acts. Velasquez v. Commonwealth, 276 Va. 326, 330, 661 S.E.2d 454, 456 (2008); Schmitt v. Commonwealth, 262 Va. 127, 145, 547 S.E.2d 186, 198 (2001). The question of whether Clanton possessed this intent rested with the trial court, as the finder of fact, Nobles v. Commonwealth, 218 Va. 548, 551, 238 S.E.2d 808, 810 (1977), and we find there was credible evidence to support the trial court's finding in this regard.

Clanton contends there was no wrongful intent because the infant was moved to a safer environment⁵ at the request of her parents. The record...