Sean A. Boone v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Bray
SEAN A. BOONE
v. Record No. 1473-94-1 MEMORANDUM OPINION *
BY JUDGE SAM W. COLEMAN III
COMMONWEALTH OF VIRGINIA JULY 5, 1995
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Nelson T. Overton, Judge
(Kevin P. Shea, on brief, for appellant.)
Appellant submitting on brief.
(James S. Gilmore, III, Attorney General;
Thomas C. Daniel, Assistant Attorney General,
on brief, for appellee.) Appellee submitting
on brief.
Sean A. Boone was convicted of carjacking, abduction of
Casey Mesic, use of a firearm in the abduction of Casey Mesic,
and use of a firearm (second offense) in the robbery of Cynthia
Mesic. He contends that the abduction of Casey Mesic was
incidental to the carjacking of Cynthia Mesic's automobile and,
therefore, not a separate offense for which he could be
convicted; that the trial court erred by finding him guilty of
the use or display of a firearm in a robbery when he was not
prosecuted for robbery, but rather, was prosecuted for
carjacking; and that identity evidence was unduly suggestive and
did not support his convictions. For the following reasons, we
affirm the decisions of the trial court.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
At 9:30 p.m., Cynthia Mesic and her two daughters were
returning home in their car. They stopped by a cluster of
mailboxes so that Casey Mesic, age ten, could retrieve the
family's mail. As Casey was returning to the car, Sean Boone,
the appellant, grabbed Casey, put his hand over her mouth, and
placed a gun to her temple. Cynthia Mesic thought that Boone
"was going to run with her" daughter. Boone was directing Casey
to tell her mother to get out of the car. Cynthia Mesic and her
daughter, Megan, age seven, got out of the car and ran to where
Boone was directing them to go by pointing his gun. Boone then
released Casey and drove off in the Mesic car.
Approximately a week later, a Portsmouth police officer saw
Sean Boone driving the Mesic car, but the car was bearing Florida
license plates registered to another car. Boone told the officer
that he had gotten the car earlier in the day from James Bowen.
Later, Boone told the officer the car came from Willie Bowen.
Boone had the car's registration in a small black book, which
also contained his driver's license, and he had the keys to the
vehicle on his key chain.
Cynthia Mesic and Casey Mesic positively identified Sean
Boone at trial as the person who forcibly grabbed Casey at
gunpoint. The description of Boone that Cynthia gave the
officers after the carjacking was strikingly similar to Boone's
actual physical characteristics. The incident took place in a
well-lit location of the housing complex, and Boone was as close
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as five feet to Cynthia Mesic.
Boone testified that an acquaintance by the name of DeShawn
(last name unknown) had stolen the car and that he was just
borrowing it.
I.
Boone contends that he cannot be prosecuted for the
abduction of Casey Mesic and carjacking because of the
constitutional protection against double jeopardy. He contends
that the element of detention necessary for abduction was
incidental to the carjacking and that the same act cannot
constitute two crimes.
"The applicable rule is that where the same act or
transaction constitutes a violation of two distinct statutory
provisions, the test to be applied to determine whether there are
two offenses or only one is whether each provision requires proof
of a fact that the other does not." Blockburger v. U.S., 284
U.S. 299, 304 (1932). "The Supreme Court later stated that 'if
each [offense] requires proof of a fact that the other does not,
the Blockburger test is satisfied notwithstanding any substantial
overlap in the proof offered to establish the crimes.'" Hill v.
Commonwealth, 2 Va. App. 683, 706, 347 S.E.2d 913, 926 (1986)
(quoting Iannelli v. U.S., 420 U.S. 770, 785 n.17 (1975)).
The abduction of Casey Mesic was a separate and distinct
act, apart from the seizure of Cynthia Mesic's automobile. See
Brown v. Commonwealth, 230 Va. 310, 337 S.E.2d 711 (1985).
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Abduction of Casey Mesic and carjacking were two separate crimes
without common elements. The crime of carjacking requires the
prosecution to prove facts and elements different from those
necessary to prove abduction, and vice versa. Boone was properly
charged with and convicted of both offenses. See Blyth v.
Commonwealth, 222 Va. 722, 726, 284 S.E.2d 796, 798 (1981)
(citing Whalen v. U.S., 445 U.S. 684, 694 n.8 (1980)).
II.
The appellant next contends that he was improperly convicted
of the use or display of a firearm in a threatening manner while
committing robbery because the Commonwealth did not charge or
convict him of the predicate offense of robbery.
Under Code § 18.2-53.1, proof of the underlying predicate
felony is a distinct element that must be proven beyond a
reasonable doubt. See Jones v. Commonwealth, 218 Va. 18, 22, 235
S.E.2d 313, 315 (1977). Use of a firearm in the commission of a
robbery and robbery are separate and independent crimes. See
Morris v. Commonwealth, 228 Va. 484, 492, 323 S.E.2d 567, 572
(1984). "There is no language in the statute which suggests that
the legislature intended that an accused must be charged and
prosecuted for the underlying felony. That decision is left to
the Commonwealth's attorney in whom discretion is vested." Davis
v. Commonwealth, 4 Va. App. 27, 30, 353 S.E.2d 905, 907 (1987).
To obtain a conviction for a violation of Code § 18.2-53.1, the
Commonwealth is not required to separately indict and prosecute
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the defendant for the underlying predicate felony. Id. at 31,
353 S.E.2d at 907. Although Boone was charged and convicted of
carjacking, the evidence was sufficient to prove beyond a
reasonable doubt the crime of robbery. Accordingly, the trial
court did not err in finding Boone guilty of use of a firearm in
the commission of robbery in violation of Code § 18.2-53.1.
III.
Boone next contends that the Commonwealth's witnesses
improperly identified him as the carjacker due to an unduly
suggestive identification process. Boone argues that several
weeks after the carjacking, a friend of the victims mailed them a
picture of him from a local newspaper and that because they had
seen the picture, they were able to identify him from the
photograph when he entered the courtroom for his preliminary
hearing.
To determine the reliability of a victim's eyewitness
identification and to evaluate the likelihood of
misidentification due to any suggestive factor, a trial court
shall consider
the opportunity of the witness to view the
criminal at the time of the crime, the
witness' degree of attention, the accuracy of
the witness' prior description of the
criminal, the level of certainty demonstrated
by the witness at the confrontation, and the
length of time between the crime and the
confrontation.
Townes v. Commonwealth, 234 Va. 307, 331, 362 S.E.2d 650, 663
(1987), cert. denied, 485 U.S. 971 (1988). In this case, the
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area where the crime was committed was well-lit; the assailant
was within five feet of Cynthia Mesic at the time of the
carjacking; and her attention was focused entirely on the
assailant during the attack because he was holding her daughter.
Both victims, Casey Mesic and Cynthia Mesic, positively
identified Boone at trial as the carjacker. The description of
her assailant that Cynthia Mesic gave to police was nearly
identical to the actual physical characteristics of Sean Boone.
The victims' identifications are reliable.
We, therefore, affirm.
Affirmed.
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