Johnson v. Com.

• Decision Date: 06 March 1981
• Docket Number: No. 800475,800475
• Court: Virginia Supreme Court
• Parties: Antonio JOHNSON v. COMMONWEALTH of Virginia. Record

Page 592

275 S.E.2d 592

221 Va. 872

Antonio JOHNSON v. COMMONWEALTH of Virginia.

Record No. 800475.

Supreme Court of Virginia.

March 6, 1981.

Thomas J. Morris, Arlington (Stephen J. Crum, Arlington, on brief), for appellant.

Thomas D. Bagwell, Asst. Atty. Gen. (Marshall Coleman, Atty. Gen., on brief), for appellee.

Before CARRICO, C. J., HARRISON, COCHRAN, POFF, COMPTON and THOMPSON, JJ. ^*

HARRISON, Justice.

Antonio Johnson was tried upon three indictments charging attempted rape, statutory burglary, and abduction with intent to defile. He was convicted of assault and battery and his punishment fixed at twelve months and a $1,000 fine, of statutory burglary with intent to commit assault and battery and his punishment fixed at imprisonment for three years, and of abduction with intent to deprive the prosecutrix of her personal liberty and his punishment fixed at imprisonment for eight years. The trial court set aside the assault and battery conviction upon the ground that the only "touching of the victim" involved was that necessary to constitute the "detention" and "seizing" alleged to support the charge of abduction. Johnson was sentenced on the abduction and burglary convictions in accordance with the jury verdicts. The defendant appealed these convictions alleging that (1) the evidence is insufficient to support his conviction of statutory burglary, (2) a mere seizure or detention does not constitute abduction, and (3) he was placed twice in jeopardy when the trial court allowed charges of attempted rape and abduction to go to the jury.

The evidence, for the purpose of this appeal, may be briefly summarized as follows. On May 11, 1979, Mrs. Nieves S. Michalek, age twenty, and her eight and one-half-month-old child were in her apartment at 873 South Greenbrier, Arlington, when she heard a knock at the door. Mrs. Michalek ignored the first knock but upon hearing a second knock she went to the door, opened it and saw Johnson standing outside. She asked him what he wanted, and he responded, "I want to fix the fuses." Mrs. Michalek said that nothing was wrong with the fuses. Johnson repeated his request and then asked, "Do you have some cold water?" Mrs. Michalek testified that she replied, "I will give you some cold water" and, leaving the door open "about one foot," she walked to the kitchen. After filling a glass with water, Mrs. Michalek turned her head and saw Johnson had followed her into the kitchen. She stated that she said, "Here is your cold water" twice, but Johnson made no response and grabbed Mrs. Michalek tightly from behind. Mrs. Michalek said she dropped the glass when Johnson grabbed her and she began screaming, "There is some guy trying to hurt me." She testified that her landlady, Mrs. Ann Peele, heard her and responded, "What is wrong up in there?" whereupon Johnson released Mrs. Michalek and walked rapidly out of the apartment.

Mrs. Michalek stated that while Johnson was holding her he attempted to kiss her and "started to rub his hips back and forth on my rear end ... and my clothes started going up." She said she could feel that Johnson was sexually aroused. Mrs. Michalek estimated ten to fifteen minutes elapsed from the time Johnson first entered the apartment until he left. On cross-examination, Mrs. Michalek denied she invited Johnson into the apartment, stating, "I said, 'Stay there. I'll go get some water for you.' " She said the only thing Johnson said during the incident was "I didn't hurt (you). I'm not going to hurt you." Mrs. Michalek estimated that Johnson held her for ten to fifteen seconds.

Ann Peele testified that she heard loud voices and screams from the Michalek apartment and heard Mrs. Michalek say, "No, don't, please stop." Johnson was initially detained by Mrs. Peele but left the scene while she phoned the police. Frank Winter, a prospective tenant, also heard screams from the Michalek apartment. He was present when Mrs. Peele temporarily detained the defendant and stated that he heard Johnson explain to Mrs. Peele that he was just the maintenance man and was not hurting Mrs. Michalek.

Officer William Turner testified that while he was interviewing Mrs. Michalek about the incident in her apartment, Johnson returned. Turner stated that Mrs. Michalek immediately identified Johnson as her assailant and that Johnson at that time remarked, "I only wanted to talk to you ... Now look at me. I'm going to go to jail."

Johnson, who was nineteen years old, testified that on the morning of May 11, 1979, he was operating a car which bore an expired inspection sticker. Johnson stated that he entered the Greenbrier Apartment parking lot to avoid a police car which was behind him. Johnson further stated that after the police car had passed, he entered the front of the first apartment building and tapped twice on a door which was opened by Mrs. Michalek. Johnson asked her if someone named Larry lived there, and upon receiving a negative response he asked for a glass of water. He stated that when Mrs. Michalek responded, "Okay, come in" he walked approximately two feet into the apartment through the half-open door. Johnson said Mrs. Michalek disappeared from view and started "hollering", whereupon he left without touching her. He further testified that he saw Mrs. Peele as he was leaving and that he refused to wait for the police. Johnson stated that he returned to the apartment to explain the incident and was arrested. On cross-examination Johnson admitted he did not want the drink of water and that he was not "a maintenance man".

All conflicts in the testimony of the witnesses have been resolved by the jury's verdict. We therefore view the evidence in the light most favorable to the Commonwealth. The jury believed the testimony of Mrs. Michalek. She testified that she opened the door only about one foot, and thus the defendant had to push the door open additionally in order to enter the apartment. She also stated that she expressly told the defendant to remain outside when she went to get him a glass of water. The jury could have found from the evidence that to obtain entry into Mrs. Michalek's apartment the defendant first posed as a maintenance man sent to fix a fuse, and that when that ruse failed he asked for a glass of water which he admittedly did not want. Evidence of the assault and battery that he committed after gaining admission to her apartment was provided by Mrs. Michalek's testimony.

The principles controlling our decision on the burglary assignment are well settled. In Davis v. Commonwealth, 132 Va. 521, 523, 110 S.E. 356, 357 (1922), it was held:

Breaking, as an element of the crime of burglary, may be either actual or constructive. There is a constructive breaking when an entrance has been obtained by threat of violence, by fraud, or by conspiracy. Minn.Syn.Cr.Law, page 92; Clarke v. Commonwealth, 25 Gratt. (66 Va.) 912....

Actual breaking involves the application of some force, slight though it may be, whereby the entrance is effected. Merely pushing open a door, turning the key, lifting the latch, or resort to other slight physical force is sufficient to constitute this element of the crime. See the authorities cited, supra. But a breaking, either actual or constructive, to support a conviction of burglary, must have resulted in an entrance contrary to the will of the occupier of the house.

See also Williams v. Commonwealth, 193 Va. 764, 71 S.E.2d 73 (1952); Finch v. Commonwealth, 55 Va. (14 Gratt.) 643 (1858).

Mrs. Michalek's testimony established both an actual and a constructive breaking and entering by the defendant. Thus, the evidence supports the defendant's conviction of breaking and entering the apartment of Mrs. Michalek with the intent to commit assault and battery. Code § 18.2-92.

We now turn to defendant's assignment of error which questions his conviction of abduction, an offense defined by Code § 18.2-47, which stated, in pertinent part:

Abduction and kidnapping defined; punishment. 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"; but the provisions of this section shall not apply to any law-enforcement officer in the performance of his duty. The terms "abduction" and "kidnapping" shall be synonymous in this Code.

Abduction generally, except by the parent of the person abducted, is punishable as a Class 5 felony. Abduction of any person with the intent to defile is punishable as a class 2 felony. Code § 18.2-48.

The indictment upon which the defendant was tried charged that he "by force, intimidation or deception, without legal justification or excuse did detain, take, transport or secrete the person of another, to wit: Nieves Michalek, with intent to defile such person."

The verdict returned by the jury found the defendant guilty of abduction with the intent to deprive the prosecutrix of her personal liberty. In McKinley v. Commonwealth, 217 Va. 1, 4, 225 S.E.2d...