Collins v. Commonwealth ( 2012 )

Present: Kinser, C.J., Lemons, Goodwyn, Millette, and Mims, JJ.,
and Carrico and Koontz, S.JJ.
CLIFTON L. COLLINS
OPINION BY
v. Record No. 110067 SENIOR JUSTICE HARRY L. CARRICO
January 13, 2012
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we decide whether a bail bondsman licensed
in another state but not in Virginia has the authority to enter
Virginia and apprehend a fugitive bailee. In a bench trial in
the Circuit Court of Mecklenburg County, the defendant, Clifton
L. Collins, was convicted of attempted abduction pursuant to
Code §§ 18.2-26 and 18.2-47 and use of a firearm in the
commission of a felony pursuant to Code § 18.2-53.1. The
circuit court sentenced Collins to incarceration for a term of
five years on the attempted abduction charge, all suspended, and
to the mandatory term of three years' incarceration on the
weapons charge.
Collins appealed his convictions to the Court of Appeals of
Virginia. In a published opinion, the Court of Appeals affirmed
Collins’ convictions. Collins v. Commonwealth, 57 Va. App. 355,
702 S.E.2d 267 (2010). We awarded Collins this appeal to
consider two assignments of error, as follows:
I. The Court of Appeals erred as a matter of law in
affirming the trial court’s finding that an out of
state licensed bail bondsman does not have legal
authority to recover a fugitive from Virginia or to
temporarily deprive a person of his freedom whom he
reasonably believes to be the fugitive.
II. The Court of Appeals erred in affirming the trial
court’s determination that Mr. Collins had the
requisite specific intent required for attempted
abduction when he, a lawfully licensed bondsman,
believed the person he was detaining to be the
fugitive and released the person immediately upon
learning that the person was not the fugitive.
BACKGROUND
Collins was licensed as a bail bondsman in North Carolina,
but not in Virginia. On October 3, 2006, one of Collins’ agents
posted bond in the amount of $10,000 for the release of James R.
Sydnor, III, from custody in Wake County, North Carolina,
pending his trial on an identity theft charge. Sydnor failed to
appear in court on October 18, 2006, as required, and a motion
was made to forfeit the $10,000 bond. The court issued a bond
forfeiture notice stating that forfeiture would be set aside if
the fugitive was “surrendered by a surety or bail agent to a
sheriff of [North Carolina] as provided by law.”
Collins learned that Sydnor would be in Virginia on March
29, 2007, to attend a funeral at a church in Mecklenburg County.
Accompanied by his wife, his son, and bail agents from his
office, Collins and his party drove in two vehicles to
Mecklenburg County intending to recover Sydnor and return him to
North Carolina. Collins had seen a “mug shot” of Sydnor but had
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never seen him in person before travelling to Mecklenburg
County.
Upon arrival in Mecklenburg County, Collins arranged to
meet Steve Jones, a deputy sheriff of the county, in an effort
to gain the sheriff department’s assistance in apprehending
Sydnor. Jones advised Collins that “the Sheriff’s office could
not get involved.”
Collins then drove to the parking lot of the church where
the funeral service was just ending and saw a man he thought was
Sydnor opening the trunk of a car. The man was not Sydnor but a
Deputy Chief of Police (Deputy Chief) from a city in Virginia
who had come to the church to attend the funeral of his uncle.
At the conclusion of the service, he went to the parking lot to
retrieve his checkbook from the trunk of his car to help his
relatives defray the cost of the funeral.
The Deputy Chief opened the trunk of his car and saw
Collins approaching from a truck parked in a manner blocking his
car. Collins got out of his truck with a Glock pistol in his
hand, pointed it at the Deputy Chief, and said, “I believe you
see what it is mother****, you know what it is.” Thinking he
was being robbed, the Deputy Chief said he did not have any
money. Collins replied that “this ain’t about money.” Collins
grabbed the Deputy Chief by the shoulder and began pulling him
toward the truck. The Deputy Chief was then confronted by
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Collins’ employee, who emerged from the truck armed with mace
and a handgun. The Deputy Chief also observed a third person, a
woman, in the truck, but she took no part in the melee.
While pulling on the Deputy Chief to put him in the truck,
Collins kept calling him “Jimmy” and cursing at him. 1 The Deputy
Chief said: “I’m not Jimmy. I’m not getting in the truck.”
Collins asked the Deputy Chief for identification, and the
Deputy Chief displayed his driver’s license. Collins told the
Deputy Chief that he was a bondsman and that “Jimmy” owed him
$20,000. He showed the Deputy Chief some sort of badge but
refused to give him any other identification. Collins and his
employee then got in the truck and drove away. The Deputy Chief
called 911 and reported that someone had just pointed a gun at
him in the church parking lot.
A Mecklenburg County grand jury returned indictments
against Collins for attempted abduction and use of a firearm in
the commission of attempted abduction. At trial, Collins
claimed that he remained in his vehicle during his encounter
with the Deputy Chief, that he was alone in the vehicle, that he
did not have a firearm at the time of the episode, and that he
had not referred to the Deputy Chief as “Jimmy.” The trial
1
Sydnor's first name was "James." He and the Deputy Chief
were cousins, and the Deputy Chief admitted at trial that they
slightly resembled each other.
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judge told Collins to his face that he found his testimony
"unbelievable."
ANALYSIS
Attempted Abduction
Code § 18.2-47(A), pursuant to which Collins was convicted
of attempted abduction, provides as follows:
Any person who, by force, intimidation or deception, and
without legal justification or excuse, seizes, takes,
transports, detains or secretes another person 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."
Collins argues that, as a bail bondsman licensed in North
Carolina, he had a common law right with wide reaching arrest
authority allowing him to enter another state for the purpose of
apprehending a fugitive, even though he is not licensed in the
other state. This authority, Collins maintains, gave him the
“legal justification or excuse,” pursuant to Code § 18.2-47, for
the seizure of a fugitive bailee.
We will assume, without deciding, that the common law
previously authorized an out-of-state bondsman to enter this
Commonwealth and apprehend a fugitive bailee without becoming
licensed in Virginia. We must determine, therefore, whether
anything has occurred to change the common law rule. Since “a
decision to abrogate [a] longstanding common law principle is
the proper function of the legislature, not the courts,”
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Robinson v. Matt Mary Moran, Inc., 259 Va. 412, 417-18, 525
S.E.2d 559, 562 (2000), we will confine our search to
legislative changes. And because we must interpret and apply
any statutory changes, we are presented with a pure question of
law, which we will review de novo. Gilliam v. McGrady, 279 Va.
703, 708, 691 S.E.2d 797, 799 (2010). Established principles of
law will guide us in that review.
Code § 1-200 provides as follows:
The common law of England, insofar as it is not
repugnant to the principles of the Bill of Rights and
Constitution of this Commonwealth, shall continue in full
force within the same, and be the rule of decision, except
as altered by the General Assembly.
In Herndon v. St. Mary’s Hospital, 266 Va. 472, 476, 587
S.E.2d 567, 569 (2003), we stated as follows:
[A] statutory provision will not be held to change the
common law unless the legislative intent to do so is
plainly manifested. Therefore, a statutory change in the
common law will be recognized only in that which is
expressly stated in the words of the statute or is
necessarily implied by its language.
(Citations omitted).
At its 2002 session, the General Assembly adopted House
Joint Resolution No. 201, which decried the lack of statewide
standards and procedures for the certification and regulation of
bail bondsmen. 2 The resolution directed the Virginia State Crime
Commission "to study certain issues pertaining to bail bondsmen
2
Previously, circuit courts and the State Corporation
Commission authorized persons to act as bail bondsmen.
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[and] bounty hunters" and to "complete its work by November 30,
2002," in time for submission to the 2003 session of the General
Assembly.
In its final report, the State Crime Commission made twenty
recommendations concerning bail bondsmen and twenty for bounty
hunters. See Virginia State Crime Comm'n, Report on Study of
Bail Bondsmen & Bounty Hunters, House Doc. No. 13, at 18-23
(2004). In response, the General Assembly adopted Chapter 460
of the Acts of Assembly of 2004, which created Article 11 of
Chapter 1, Title 9.1 of the Code of Virginia, relating to bail
bondsmen, comprised of Sections 9.1-185 to 9.1-185.18 at the
time of Collins' journey into Virginia, and Article 12, relating
to bail enforcement agents, comprised of Sections 9.1-186 to
9.1-186.13.
Code § 9.1-185.2 gave the Criminal Justice Services Board
(the Board) full regulatory authority and oversight of property
and surety bail bondsmen and Code § 9.1-186.2 gave the Board the
same authority and oversight of bail enforcement agents, or
"bounty hunters."
With respect to both groups, the Board is required to adopt
regulations that are "necessary to ensure respectable,
responsible, safe and effective bail bonding [and bail
enforcement] within the Commonwealth." Code §§ 9.1-185.2 and
9.1-186.2(C). Detailed provisions are specified for licensure,
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professional conduct, discipline, solicitation of business,
training in and use of firearms, types of clothing and
identification, documentation and record keeping, recovery of
bailees, and penalties for certain persons who violate any
statute or Board regulation.
Collins argues that none of these statutory changes
“specifically take away the right of an out of state bondsman
[to apprehend] his bailee in Virginia.” We disagree with
Collins.
Code § 9.1-185 defines a bondsman as "any person who is
licensed by the Department [of Criminal Justice Services] who
engages in the business of bail bonding and is thereby
authorized to conduct business in all courts of the
Commonwealth." Code § 9.1-186 defines a bail enforcement agent
or “bounty hunter” as "any individual engaged in bail recovery."
Code §§ 9.1-185.18 and 9.1-186.13 provide that any individual
who, without a valid license issued by the Department of
Criminal Justice Services, engages in bail bonding or bail
recovery in the Commonwealth is guilty of a Class 1 misdemeanor.
And Code §§ 9.1-185.7(A) and 9.1-186.7(A), styled “Licensure of
nonresidents,” provide that all nonresident transfers and
applicants for a bail bondsman license or a bail enforcement
agent license shall satisfy all licensing requirements for
residents of the Commonwealth.
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We cannot perceive how the General Assembly could have more
plainly manifested its intent to abrogate the long standing
common law rule allowing out-of-state bail bondsmen and bounty
hunters to enter Virginia to apprehend fugitive bailees. It is
inconceivable that the General Assembly intended to impose such
strict requirements upon in-state bail bondsmen and bounty
hunters as those enacted as a result of the Crime Commission
report, yet intended to leave out-of-staters with the unfettered
right to enter Virginia and apprehend fugitive bailees without
being subject to regulation. Such an intent would be completely
at odds with the legislatively expressed goal of ensuring
“respectable, responsible, safe and effective bail bonding [and
bond enforcement] within the Commonwealth.” Code §§ 9.1-185.2
and 9.1-186.2(C). We will not attribute such an intent to the
General Assembly and instead will hold that it plainly
manifested its intent to abrogate the common law rule.
Requisite Specific Intent
Collins argues that he reasonably believed it was Sydnor he
attempted to load into his truck and only a mistake of fact
caused him to attempt to capture and transport the Deputy Chief.
There was not sufficient evidence, Collins maintains, to
establish the specific intent, or to prove the mens rea,
necessary to support a conviction of attempted abduction.
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At this point, however, Collins’ mistake of fact is
irrelevant. 3 Without the common law rule to protect him, he had
no privilege to use force to detain anyone, including Sydnor,
had he been on the scene instead of the Deputy Chief. Moreover,
a person's intent may be proven by his actions. Hughes v.
Commonwealth, 18 Va. App. 510, 519, 446 S.E.2d 451, 457 (1994).
The evidence of Collins' use of foul language, his pointing of a
deadly weapon at the Deputy Chief, his allowance of an employee
to confront the Deputy Chief with mace and a handgun, and his
use of physical force in pulling the Deputy Chief toward the
truck all prove beyond a reasonable doubt that, “without legal
justification or excuse, [he] seize[d] . . . another person with
the intent to deprive such other person of his personal
liberty.” Code § 18.2-47.
In a final argument, Collins contends that he abandoned any
intent to abduct as soon as he learned it was the Deputy Chief
and not Sydnor he was pulling on to get him into the truck and
that this supports his argument concerning the lack of specific
intent. But the abandonment came too late. At that point, the
attempt was complete. “[I]f a man resolves on a criminal
enterprise, and proceeds so far in it that his act amounts to an
3
We have expressly declined to adopt a " 'hybrid legal
impossibility' " defense in which "a mistake of fact about the
legal status of some necessary element of [a] crime nullifies a
crime of attempt." Hix v. Commonwealth, 270 Va. 335, 342 n.5,
619 S.E.2d 80, 84 n.5 (2005).
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indictable attempt, it does not cease to be such, though he
voluntarily abandons the evil purpose.” Howard v. Commonwealth,
207 Va. 222, 229, 148 S.E.2d 800, 805 (1966) (quoting Glover v.
Commonwealth, 86 Va. 382, 386, 10 S.E. 420, 422 (1889)).
CONCLUSION
For the reasons assigned, we will affirm the judgment of
the Court of Appeals of Virginia.
Affirmed.
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