Joseph Mark Herbin, III,s/k/a v. Commonwealth of VA ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Frank
Argued at Salem, Virginia
JOSEPH MARK HERBIN, III, S/K/A
JOSEPH MARK HERBIN, II
MEMORANDUM OPINION * BY
v. Record No. 0223-00-3 JUDGE ROBERT P. FRANK
JANUARY 30, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF SALEM
Robert P. Doherty, Jr., Judge
Malcolm McL. Doubles (Rena G. Berry, on
brief), for appellant.
Donald E. Jeffrey, III, Assistant Attorney
General (Mark L. Earley, Attorney General;
Eugene Murphy, Assistant Attorney General, on
brief), for appellee.
Joseph Mark Herbin, III, (appellant) was convicted in a bench
trial of two counts of abduction in violation of Code § 18.2-47.
On appeal, he contends the trial court erred in finding there was
an abduction of the victims, separate and apart from the detention
inherent in the robbery. Finding no error, we affirm the judgment
of the trial court.
I. BACKGROUND
On October 2, 1997, appellant and Robert Lynch entered a
McDonald's restaurant wearing masks and carrying guns. They told
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Michael Hutton, the restaurant manager, that they did not want to
hurt anyone and just wanted the money. Then, they ordered Hutton
to remove the money from the restaurant's safe. When he refused
to do so, Lynch cocked his gun, put the gun in Hutton's back, and
forced Hutton, at gunpoint, to walk to the rear office where the
safe was located. Appellant locked some other employees in a
walk-in freezer.
Lisa Martin, who was not on duty that night but was doing
some paperwork in the office where the safe was located, had
already been alerted by another employee that a robbery was in
progress. As a result, she dialed 911, but hung up the telephone
when she saw the robbers and Hutton coming around the corner.
When appellant, Lynch, and Hutton entered the rear office, Martin
crawled on the top of the desk to get as far away from them as
possible because she was afraid of the guns. Hutton opened the
safe, and appellant and Lynch took the money. Before they left,
appellant and Lynch told Martin and Hutton to turn their heads and
not to look at them. Hutton testified, "[T]hey told us stay there
and not to look back until after they had gone." Hutton stated he
gave the gunmen plenty of time to get out "[b]ecause I was afraid
if I didn't they might turn around and shoot me." Appellant and
Lynch were in the rear office for approximately three minutes.
Appellant was convicted of numerous felonies, including one
count of robbery, one count of abduction of Lisa Martin, one count
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of abduction of Michael Hutton, and related firearm offenses.
Appellant only appeals the two abduction convictions.
II. ANALYSIS
Appellant contends the double jeopardy clause of the Fifth
Amendment bars his convictions of the abductions of Hutton and
Martin. Appellant argues the detention 1 of Martin and Hutton was
merely incidental to the restraint inherent in the act of robbery.
Essentially, appellant argues he received multiple punishments for
the same offense.
The double jeopardy clause of the Fifth
Amendment provides that no person shall "be
subject for the same offense to be twice put
in jeopardy of life or limb . . . ." It is
now well recognized that this clause affords
an accused three distinct constitutional
guarantees. "It protects against a second
prosecution for the same offense after
acquittal. It protects against a second
prosecution for the same offense after
conviction. And it protects against multiple
punishments for the same offense." North
Carolina v. Pearce, 395 U.S. 711, 717, 89
S. Ct. 2072, 2076, 23 L.Ed.2d 656 (1969).
Brown v. Commonwealth, 230 Va. 310, 312-13, 337 S.E.2d 711, 712-13
(1985).
In Brown, the Supreme Court of Virginia held:
[O]ne accused of abduction by detention
and another crime involving restraint of the
victim, both growing out of a continuing
course of conduct, is subject upon conviction
to separate penalties for separate offenses
only when the detention committed in the act
1
Appellant does not contest the fact that both Martin and
Hutton were detained.
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of abduction is separate and apart from, and
not merely incidental to, the restraint
employed in the commission of the other
crime.
Id. at 314, 337 S.E.2d at 713-14.
"In Brown v. Commonwealth, the Supreme Court recognized that
'in the enactment of the abduction statute the General Assembly
did not intend to make the kind of restraint which is an intrinsic
element of . . . robbery . . . a criminal act, punishable as a
separate offense.'" Phoung v. Commonwealth, 15 Va. App. 457, 461,
424 S.E.2d 712, 714 (1992) (quoting Brown, 230 Va. at 314, 337
S.E.2d at 713 (1985)). Therefore, "[w]e must determine whether
the detention of the victims was separate and apart from, and not
merely incidental to, the restraint inherent in the act of
robbery." Id. at 462, 424 S.E.2d at 714-15.
A defendant may be convicted of
abduction in addition to robbery if the
victim's detention "'is separate and apart
from, and not merely incidental to, the
restraint employed in the commission of
[robbery].'" Hoke v. Commonwealth, 237 Va.
303, 311, 377 S.E.2d 595, 600 (quoting Brown
v. Commonwealth, 230 Va. 310, 314, 337 S.E.2d
711, 714 (1985)), cert. denied, 491 U.S. 910,
109 S. Ct. 3201, 105 L.Ed.2d 709 (1989).
Thus, to constitute an abduction, separate
and apart from a robbery, the victim's
detention must be greater than the restraint
that is intrinsic in a robbery. Id. at 311,
377 S.E.2d at 600. Additionally, an
abduction committed for the purpose of
avoiding an arrest for a robbery or to retain
the fruits of a robbery is perpetrated with
the intent to extort pecuniary benefit.
Cortner v. Commonwealth, 222 Va. 557, 560-61,
281 S.E.2d 908, 910 (1981).
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Cardwell v. Commonwealth, 248 Va. 501, 511, 450 S.E.2d 146, 152-53
(1994).
In Phoung, appellant broke into the victim's house, tied her
up, and carried her upstairs to her bedroom where she kept her
cash and jewelry. She then was robbed. We held that the
detention of the victim was separate and distinct from the
restraint inherent in the act of robbery. We wrote:
Simply stated, the asportation of a
victim from one room to another and the
binding of another victim's hands and feet
together are not acts inherent in the crime
of robbery. See Jones v. Commonwealth, 13
Va. App. 566, 572, 414 S.E.2d 193, 196 (1992)
(robbery involves the taking, with the intent
to steal, of the personal property of
another, from his person or in his presence,
against his will, by violence or
intimidation). Therefore, we find that the
constitutional guarantee precluding multiple
punishments for the same offense has not been
abridged.
Phoung, 15 Va. App. at 462, 424 S.E.2d at 715.
In Cardwell, the Supreme Court wrote:
In the present case, the transporting of
Brown from the robbery scene was a detention
separate and apart from, and not merely
incidental to, the robbery and was greater
than the restraint intrinsic in a robbery.
Further, the evidence clearly supports a
finding that the abduction was committed to
protect the fruits of the robbery and to
escape an arrest. Therefore, the evidence
supports the charge of an abduction with the
intent to extort a pecuniary benefit.
Consequently, the trial court did not err in
refusing to strike the Commonwealth's
evidence.
Cardwell, 248 Va. at 511, 450 S.E.2d at 153.
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When considering the sufficiency of the
evidence on appeal in a criminal case, we
view the evidence in the light most favorable
to the Commonwealth, granting to it all
reasonable inferences fairly deducible
therefrom. See Higginbotham v. Commonwealth,
216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
On review, we do not substitute our own
judgment for that of the trier of fact. See
Cable v. Commonwealth, 243 Va. 236, 239, 415
S.E.2d 218, 220 (1992). The judgment will
not be set aside unless it is plainly wrong
or without supporting evidence. See Martin
v. Commonwealth, 4 Va. App. 438, 443, 358
S.E.2d 415, 418 (1987).
Herrel v. Commonwealth, 28 Va. App. 579, 586, 507 S.E.2d 633,
636-37 (1998).
In this case, the trial court, as the trier of fact, could
have reasonably concluded that the abductions of Martin and Hutton
were separate and apart from the restraint employed in the
commission of the robbery. When appellant ordered both Martin and
Hutton to "stay there and not to look back" until after he and
Lynch left, he detained Martin and Hutton with the intent "to
extort pecuniary benefit" and to facilitate his escape.
For these reasons, we find that the constitutional guarantee
precluding multiple punishments for the same offense has not been
violated. Therefore, we affirm appellant's convictions.
Affirmed.
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