Seddiq v. Commonwealth, Record No. 1054-09-4 (Va. App. 6/15/2010)

• Court: Virginia Court of Appeals
• Writing for the Court: James W. Haley
• Decision Date: 15 June 2010
• Docket Number: Record No. 1054-09-4.
• Citation: Seddiq v. Commonwealth, Record No. 1054-09-4 (Va. App. 6/15/2010), Record No. 1054-09-4. (Va. App. Jun 15, 2010)
• Parties: RAMIN SEDDIQ, v. COMMONWEALTH OF VIRGINIA.

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RAMIN SEDDIQ, v. COMMONWEALTH OF VIRGINIA.

Record No. 1054-09-4.

Court of Appeals of Virginia, Alexandria.

June 15, 2010.

from the Circuit Court of Fairfax County, Bruce D. White, Judge.

Nina J. Ginsberg (Michael S. Lieberman; DiMuroGinsberg, P.C., on briefs), for appellant.

Richard B. Smith, Special Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: Chief Judge Felton, Judges Haley and Beales.

MEMORANDUM OPINION^*

JUDGE JAMES W. HALEY, JR.

I.

In the trial court, Ramin Seddiq ("Seddiq") was convicted of the felony of abduction in violation of Code § 18.2-47 and of the misdemeanor of simple assault in violation of Code § 18.2-57. On appeal, he attacks only the sufficiency of the evidence with respect to his abduction conviction. Seddiq makes two arguments in support of his sufficiency claim: 1) that Seddiq's unlawful detention of the victim in this case was incidental to the assault offense and, thus, cannot support a separate abduction under the incidental detention doctrine explained in Brown v. Commonwealth, 230 Va. 310, 337 S.E.2d 711 (1985), and in other cases; and 2) that the Commonwealth failed to prove that Seddiq had the intent to deprive the victim of his personal liberty as required by the abduction statute. Because we agree with the first argument we need not address the second. Seddiq's abduction conviction is reversed and the indictment against him dismissed.

II. Facts

Pursuant to the applicable standard of appellate review, we state the facts in the light most favorable to the Commonwealth. Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). The evidence at trial concerned an encounter between Seddiq and Dr. George Semchyshyn ("Semchyshyn"), Seddiq's psychiatrist, at the latter's office in Falls Church, Virginia, on June 11, 2008. There was much testimony, from both men, describing the history of their psychiatrist-patient relationship, but we shall confine our discussion primarily to the events of June 11, the date mentioned in the indictment. It will be enough to say that between January of 2004 and April of 2008 relations between Seddiq and Semchyshyn were friendly. But in April, Seddiq apparently perceived a new verbal hostility in Semchyshyn's words and in his attitude toward him, and he interpreted this change as an attempt to humiliate him. Semchyshyn testified that he was not conscious of any change in his behavior toward Seddiq, but that when he saw Seddiq again in May, Seddiq was "very anxious" and "beginning to deteriorate." In an attempt to alleviate Seddiq's apparent emotional difficulties, Semchyshyn gave him risperdal, "a strong tranquilizer," and recommended additional therapy sessions.

Seddiq did not make another appointment before coming to Semchyshyn's office at around twenty minutes past noon on June 11, 2008. But the patient who had arranged an appointment had cancelled it, so Semchyshyn was alone in his office when Seddiq arrived. According to Semchyshyn, he first noticed Seddiq at the doorway between his waiting room and his office, holding a gun, and pointing it toward Semchyshyn's upper chest. Seddiq told him, "I want my life back." Semchyshyn replied, "Please, I didn't do anything, let's talk about this." Quickly, Semchyshyn started backing up further into his office, and moved behind his desk. Seddiq followed him, but did not speak. Semchyshyn "ducked around" the back of his desk. According to Semchyshyn, "[the gun] was pointed at me constantly." Semchyshyn then crouched beside the desk. He testified that he moved "instinctively" and that Seddiq did not touch him. He also testified that Seddiq did not give him any orders; he neither told Semchyshyn to move, nor did he tell him to remain where he was. Seddiq pulled the trigger of the gun, but other than a metallic clicking sound, nothing happened. After this, Seddiq partially removed the magazine, replaced the magazine in the gun, and again pointed the gun at Semchyshyn. By this time, Semchyshyn was standing again, though he remained close to his desk. Semchyshyn remembered Seddiq pulling the trigger again, but he did not hear another clicking sound, and Seddiq then turned around and "ran out" of the office, through the waiting room, and down the stairs.

Semchyshyn moved toward the door to the waiting room, intending to lock it, but then he paused when he saw Seddiq through the glass window in the door to the waiting room. Semchyshyn warned Seddiq that he would call the police. He said that Seddiq replied, "Don't call the police." Semchyshyn told him, "Ramin, we have to talk. Put the gun down. Let's talk." Seddiq did not reply to this. But again he pointed the gun toward Semchyshyn, and again Semchyshyn "instinctively" backed up in the direction of his office. Semchyshyn testified that, at this point, he decided his best chance of escape was to confront Seddiq, so he made what he called "a strong noise." Seddiq turned around and ran away a second time. He ran through the waiting room doorway and down the stairs outside of the doorway. This time Semchyshyn ran after him, and he succeeded in tackling Seddiq on the staircase. Seddiq got up and ran away, leaving his gun at the bottom of the staircase. There were no bullets in the gun, and the entire incident lasted only three minutes.

Seddiq's testimony contradicted Semchyshyn's concerning past events in their therapy sessions, but with respect to the June 11 incident, their accounts are generally consistent. The only differences appear to be that, according to Seddiq, "I want my life back," was the only thing he said to Semchyshyn. According to Semchyshyn, Seddiq also said "Don't call the police," after Semchyshyn suggested he would do that. Their accounts also differed over whether, the second time Seddiq came through the door of Semchsyhyn's office, there was enough room between the desk and the wall for Semchyshyn to move around Seddiq and exit the office. Semchyshyn testified Seddiq was standing in this space and that there was no room for him to go around, while Seddiq testified that there was enough room. But it was undisputed that, at the time, Seddiq was pointing his gun at Semchyshyn and, as a result, Semchyshyn did not feel free to leave. Seddiq testified that he never intended to hurt Semchyshyn, which is why he never loaded any bullets into the gun. According to Seddiq, the reason he went to Semchyshyn's office with the unloaded gun was because he wanted Semchyshyn to "feel the kind of pain and humiliation that I had felt."

A Fairfax County grand jury returned indictments against Seddiq for attempted murder in violation of Code §§ 18.2-32 and 18.2-26, abduction in violation of Code § 18.2-47, and the use of a firearm in the commission of the attempted murder in violation of Code § 18.2-53.1. During his jury trial, counsel for Seddiq conceded he was guilty of committing an assault against Semchyshyn, and at the close of the Commonwealth's evidence Seddiq made a motion to strike the other charges. With respect to the abduction count, Seddiq argued that his unlawful restraint of Semchyshyn's personal liberty was incidental to the assault and could not be punished separately as abduction under the incidental detention doctrine. Seddiq further argued that the Commonwealth failed to prove he intended to abduct Semchyshyn. The jury found Seddiq not guilty of the attempted murder and related use of a firearm charges. They found Seddiq guilty of abduction and of assault. This appeal followed.

III. Incidental Detention Doctrine

Pursuant to Code § 18.2-47(A): "Any person, who, by force, intimidation or deception, and, without legal justification or excuse, seizes, transports, detains or secretes another person with the intent to deprive such other person of his personal liberty . . . shall be deemed guilty of `abduction.'" Viewed in the light most favorable to the Commonwealth, Semchyshyn's testimony was clearly adequate to establish that Seddiq pointed a gun at Semchyshyn, which had the effect of temporarily depriving him of his personal liberty within the meaning of the statute. However, Seddiq was also convicted of assault for pointing the gun at Semchyshyn. In Virginia, assault is a common law crime. An assault occurs "when an assailant . . . engages in an overt act intended to place the victim in fear or apprehension of bodily harm and creates such reasonable fear or apprehension in the victim." Carter v. Commonwealth, 269 Va. 44, 47, 606 S.E.2d 839, 841 (2005). Relying on the incidental detention doctrine, Seddiq argues that his abduction conviction must be reversed because, to the extent his acts had the effect of depriving Semchyshyn of his personal liberty, this was intrinsic to the assault offense for which he was also convicted.

Our Supreme Court first explained the incidental detention doctrine in Brown v. Commonwealth, 230 Va. 310, 337 S.E.2d 711 (1985). The defendant in Brown entered the victim's car in the City of Charlottesville. Ignoring the victim's protests, and after hitting her and threatening that he would "cut her" if she continued to resist, he succeeded in forcing her into the passenger seat of her car, and then he drove the car out of the city to somewhere in Albemarle County, where he raped and forcibly sodomized her. Id. at 312, 337 S.E.2d at 712. Before his abduction trial in Charlottesville Circuit Court, he was charged and convicted of rape and forcible sodomy in Albemarle County Circuit Court. Brown argued that his abduction charge must be dismissed pursuant to the Fifth Amendment's Double Jeopardy Clause, specifically, that the rape for which he had already been convicted in Albemarle County necessarily involved some degree of forcible deprivation of the victim's liberty, so an abduction trial after his rape conviction operated as a second prosecution for the same offense under the test articulated in Blockburger v. United States, 284...