Mauricio Moreno v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Annunziata and
Senior Judge Duff
Argued at Alexandria, Virginia
MAURICIO MORENO
MEMORANDUM OPINION ∗ BY
v. Record No. 2237-98-4 JUDGE CHARLES H. DUFF
MAY 23, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Richard J. Jamborsky, Judge Designate
Gary H. Smith for appellant.
Richard B. Smith, Senior Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
The trial judge convicted appellant of abduction. On
appeal, appellant contends that the evidence was insufficient as
a matter of law to support his conviction because the evidence
failed to prove that he possessed the specific intent to deprive
the victim of her personal liberty or to withhold or conceal her
from another person or authority entitled to her charge. For
the reasons that follow, we affirm appellant's conviction.
"On appeal, 'we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
∗
Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
inferences fairly deducible therefrom.'" Archer v.
Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)
(citation omitted).
So viewed, the evidence proved that on January 22, 1998, as
Yessenia Ruiz, the ten-year-old victim, walked to her school bus
stop on Four Mile Road in Alexandria, Virginia, she noticed
appellant walking towards her. Appellant, who was a stranger to
the victim, grabbed the victim by her wrist and "started pulling
towards" her. Appellant then said, "Look, a pretty girl." The
victim told appellant to let her go, but he did not. The victim
then kicked appellant's leg and he released her. The victim ran
to her bus stop across the street, where her friend, Ruth
Villegas, was waiting. Appellant did not pursue the victim.
Villegas testified that she saw appellant grab the victim.
She stated that when appellant did so, she saw the victim
"kicking away" from him.
Code § 18.2-47 provides that a person shall be guilty of
abduction if he or she "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 [her] personal liberty or
to withhold or conceal [her] from any person . . . ."
"The question of [appellant's] intent
must be determined from the outward
manifestation of his actions leading to
usual and natural results, under the
peculiar facts and circumstances disclosed.
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This determination presents a factual
question which lies peculiarly within the
province of the [fact finder]." "The [fact
finder] may consider the conduct of the
person involved and all the circumstances
revealed by the evidence." Indeed, "[t]he
specific intent in the person's mind may,
and often must, be inferred from that
person's conduct and statements."
Hughes v. Commonwealth, 18 Va. App. 510, 519-20, 446 S.E.2d 451,
457 (1994) (citations omitted).
In Scott v. Commonwealth, 228 Va. 519, 323 S.E.2d 572(1984), the Supreme Court held that "the physical detention of a
person, with the intent to deprive him of his personal liberty,
by force, intimidation, or deception, without any asportation of
the victim . . . is sufficient to support a conviction of
abduction." Id. at 526, 323 S.E.2d at 576. In Simms v.
Commonwealth, 2 Va. App. 614, 346 S.E.2d 734 (1986), we found
that "abduction was established as a fact once the Commonwealth
proved that [the defendant] had deprived the victim of her
liberty by threats of violence and use of force." Id. at 618,
346 S.E.2d at 736.
In this case, based upon the testimony of the victim and
Villegas, it was reasonable for the fact finder to conclude that
because the victim had to resort to force after her earlier
verbal attempt to gain her freedom failed that appellant
intended to deprive the victim of her personal liberty. "The
[fact finder] was entitled to infer that appellant intended the
natural and probable consequences of his actions . . . ."
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Humbert v. Commonwealth, 29 Va. App. 783, 786 n.1, 514 S.E.2d
804, 806 n.1 (1999). In addition, the fact finder could
reasonably conclude that the victim's resistance, coupled with
the witnesses at the bus stop across the street, deterred
appellant from continuing the abduction.
Appellant's reliance upon Johnson v. Commonwealth, 221 Va.
872, 275 S.E.2d 592 (1981), in support of his argument is
misplaced. In Johnson, the Supreme Court reversed appellant's
abduction conviction because the evidence did not support a
finding that the defendant either intended to defile the victim
or deprive her of her personal liberty. Rather, the evidence
was consistent with an intent to persuade her to engage in
consensual sexual intercourse. See id. at 879, 275 S.E.2d at
596-97. Johnson is distinguishable from the facts of the
present case. In this case, no evidence showed that appellant
intended to kiss the victim or sexually assault her in any
manner. Moreover, in this case, unlike Johnson, appellant did
not immediately release the victim upon the first sign of
resistance. Rather, when the victim told appellant to let her
go, he refused, and it was not until after she had kicked him
that he finally let her go.
For these reasons, we affirm appellant's conviction.
Affirmed.
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