Walker v. Com.

• Decision Date: 29 November 2005
• Docket Number: Record No. 1056-04-1.
• Citation: 47 Va. App. 114,622 S.E.2d 282
• Parties: Stephen Craig WALKER v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

622 S.E.2d 282

47 Va. App. 114

Stephen Craig WALKER v. COMMONWEALTH of Virginia.

Record No. 1056-04-1.

Court of Appeals of Virginia, Chesapeake.

November 29, 2005.

William H. Hurd, Richmond (James S. Gilmore, III, Washington, DC; Troutman Sanders, LLP; Kelley, Drye & Warren, on briefs), for appellant.

Robert H. Anderson, III, Senior Assistant Attorney General (Judith Williams Jagdmann, Attorney General, on brief), for appellee.

Present: HUMPHREYS, KELSEY, JJ., and OVERTON, S.J.

KELSEY, Judge.

The trial court found Stephen Craig Walker guilty of abduction and use of a firearm in the commission of a felony. The trial court found Walker not guilty of robbery arising out of the same incident. On appeal, Walker claims (a) the evidence was insufficient to prove that he intended to deprive the victim of his personal liberty, and (b) his abduction conviction must be reversed as a matter of law because it was incidental to the robbery of which he was acquitted. Finding the evidence sufficient and Walker's legal reasoning erroneous, we affirm.

I.

We review the evidence in the "light most favorable" to the Commonwealth, the prevailing party in the trial court. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). That principle requires us to "`regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom.'" Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis in original and citation omitted).

At the request of one of Walker's creditors, Robert Merrell went to Walker's home in Virginia Beach to repossess a vehicle parked in the driveway. Merrell "hooked up" the vehicle to his tow truck and began to drive away. Walker drove up in a van, saw Merrell's tow truck, and parked his van in front of the tow truck to block its path of escape.¹

Brandishing a 9-millimeter semiautomatic handgun, Walker approached Merrell. Merrell attempted to call the police on a cell phone. "Put it down," Walker ordered as he pointed the handgun at Merrell's upper torso and head. Merrell dropped his cell phone and then tried to push the handgun away. Walker pushed back, putting the barrel of the handgun against Merrell's left upper breast. Merrell began screaming hysterically as Walker rocked back the hammer of the gun.

At 6'5" tall, weighing 240 pounds, Walker then picked up Merrell (a foot shorter and 120 pounds lighter) by his belt and "jerked" him around, apparently in an effort to disarm him. Walker carried Merrell to the front of the tow truck and "stuffed" him sideways into the cab of the truck. Walker searched Merrell, finding two handgun magazine clips and a knife. With his handgun pointed at Merrell's head, Walker continued to search for weapons. He eventually took from Merrell a .45 caliber semiautomatic handgun² and fired one round from it into the grass. During the encounter, Merrell never reached for or displayed his weapon.

As Walker looked on, Merrell frantically unhooked the vehicle from his tow truck and lowered it from the lift. Walker told him if you "do the job" you "have to suffer the consequences." Merrell then drove his tow truck to a nearby residence to find a phone to call the police. Walker followed and taunted him: "Get out of here. I know my rights. I'm calling . . . somebody up in Richmond." Merrell drove around the corner and called the police from another neighbor's home.

Two police officers responded to Merrell's call. They first spoke with Merrell, who showed the officers the videotape from his truck surveillance camera. One of the officers then spoke with Walker, who said:

About one and a half years ago I had a car repossessed; and I had to pay about $5,500 to have the situation resolved. And after I paid that, they ended up selling it in an auction. I saw this, and I just snapped. I was thinking about work. I just snapped. When you guys were asking me about what happened, I see that I messed up.

Walker also acknowledged that he "realized how stupid this was" and that Merrell "was in no way at fault." Because he had another vehicle repossessed before, Walker explained, he "was not going to let it happen again."

A grand jury charged Walker with robbery, use of a firearm in the commission of the robbery, abduction, use of a firearm in the commission of the abduction, and discharging a firearm in public. At trial, Walker denied most of the incriminating evidence presented against him. He thought at the time Merrell was a thief, Walker testified. Walker said he displayed his handgun in self-defense only after Merrell displayed his. Walker denied picking Merrell up and stuffing him into the cab of the tow truck. As for the incriminating statements he gave the police, Walker said only that he had been "coached" to say some of them.

The trial court found Walker not guilty of robbery because he had no intent to "permanently deprive" Merrell of any of his property. The trial court, however, found the facts proved Walker guilty of abduction by unlawfully depriving Merrell of his personal liberty during the encounter. Walker was also convicted of use of a firearm during the commission of a felony and discharging a firearm in public.

II.

On appeal, Walker claims the evidence is insufficient to support his abduction conviction and, it would follow, his conviction for using a firearm during the commission of the abduction. Walker also argues that his abduction conviction is flawed as a matter of law under the incidental detention doctrine recognized by Brown v. Commonwealth, 230 Va. 310, 337 S.E.2d 711 (1985). We find neither assertion persuasive.

A. EVIDENTIARY SUFFICIENCY UNDER CODE § 18.2-47

When addressing the sufficiency of the evidence, we "`presume the judgment of the trial court to be correct' and reverse only if the trial court's decision is `plainly wrong or without evidence to support it.'" Kelly v. Commonwealth, 41 Va.App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc) (citations omitted). "This standard comes from Code § 8.01-680 — the basis for our appellate review of factfinding in civil and criminal cases as well as bench and jury trials." Seaton v. Commonwealth, 42 Va.App. 739, 747 n. 2, 595 S.E.2d 9, 13 n. 2 (2004).

In practical terms, a reviewing court does not "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Stevens v. Commonwealth, 46 Va.App. 234, 249, 616 S.E.2d 754, 761 (2005) (en banc) (emphasis in original and citation omitted). We ask only whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. (quoting Kelly, 41 Va.App. at 257, 584 S.E.2d at 447 (emphasis in original)); see also Haskins v. Commonwealth, 44 Va.App. 1, 7, 602 S.E.2d 402, 405 (2004); Crowder v. Commonwealth, 41 Va.App. 658, 663, 588 S.E.2d 384, 387 (2003); Hoambrecker v. City of Lynchburg, 13 Va.App. 511, 514, 412 S.E.2d 729, 731 (1992).³

In this case, the trial court found that Walker's treatment of Merrell violated Code § 18.2-47(A). In relevant part, that statute makes it a Class 5 felony for 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. . . ." This codification wholly "supercedes the common law" and effectively combines the common law offenses of kidnapping, abduction, and false imprisonment "into one statutory felony." John L. Costello, Virginia Criminal Law & Procedure § 7.1, at 119-20 (3d ed.2002).

In particular, common law principles of asportation did not survive the statute. See Scott v. Commonwealth, 228 Va. 519, 526, 323 S.E.2d 572, 576 (1984). The statutory language specifically refers to seizure, secreting, and detention — acts which "do not necessarily involve movement." Roger D. Groot, Criminal Offenses & Defenses in Virginia at 2-3 (5th ed.2005). Instead, a conviction under Code § 18.2-47(A) 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. Scott, 228 Va. at 526, 323 S.E.2d at 576. Cf. Code § 18.2-48 (addressing detentions with more specific mens rea requirements).

Here, the evidence demonstrates that Walker, after blocking Merrell's path of escape out of the driveway, personally detained Merrell at gunpoint and forcibly moved him from the back of the tow truck into the truck cab by picking him up by his belt. This fact pattern satisfies Code § 18.2-47(A) because Walker physically detained Merrell (by restricting his movements and carrying him to the truck cab), with the intent to deprive him of his personal liberty (by ensuring Merrell did not walk or drive away during the detention), using force and intimidation (by pointing a gun at him throughout and by manhandling him into the truck cab). See generally Simms v. Commonwealth, 2 Va.App. 614, 618, 346 S.E.2d 734, 736 (1986) ("We find that abduction was established as a fact once the Commonwealth proved that Simms had deprived the victim of her liberty by threats of violence and use of force.").

In reply, Walker says he really intended only to disarm Merrell — not detain him.⁴ The factfinder, however, could infer that Walker intended to detain Merrell because that is exactly what Walker did.⁵ It is entirely "permissible to infer," as the trial court did, "that every person intends the natural and probable consequences of his or her acts." Schmitt v. Commonwealth, 262 Va. 127, 145, 547 S.E.2d 186, 198 (2001); see Gilbert v. Commonwealth, 45 Va.App. 67, 71, 608 S.E.2d 509, 511 (2005). That he may have intended to detain Merrell for the purpose of disarming him (assuming arguendo Walker's explanation to be true)⁶ changes nothing, any more than it would if he intended to detain Merrell merely for the purpose of having a...