Robert K Black v. Commonwealth ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Benton and
Senior Judge Overton
Argued at Alexandria, Virginia
ROBERT K. BLACK
MEMORANDUM OPINION * BY
v. Record No. 2206-01-4 JUDGE NELSON T. OVERTON
OCTOBER 8, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Paul F. Sheridan, Judge
Janell M. Wolfe for appellant.
Jennifer R. Franklin, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Robert K. Black, appellant, was convicted of robbery and of
abduction for pecuniary benefit. He appeals and contends that his
abduction conviction should have been merged into his robbery
conviction arguing that the detention was not separate and apart
from, but was merely incidental to, the restraint used in the
commission of the robbery. We disagree and affirm.
Facts
"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, 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). "The credibility of the witnesses and the
weight accorded the evidence are matters solely for the fact
finder who has the opportunity to see and hear that evidence as
it is presented." Sandoval v. Commonwealth, 20 Va. App. 133,
138, 455 S.E.2d 730, 732 (1995).
So viewed, the evidence proved that Dhay Araya was working
in the Definitely Different Gift Shop in Arlington County when
appellant and two other men walked into the shop. Two of the
men proceeded to the cash register, and the third man walked up
behind Araya and said, "[L]ean down, go on the floor." After
Araya saw a gun, he rolled down onto the floor. The man put
duct tape over Araya's eyes and tied Araya's hands behind his
back. The man stepped on Araya's back with his foot and took
Araya's wallet. Araya heard noises from the cash register and
then heard the men leave the shop.
In his first statement to Detective Charles Penn, appellant
said two of his co-workers, Maurice Williams and Jarant Graham,
told him they had gotten some money in Virginia. In a second
version, appellant admitted riding in the car with his
co-workers but claimed he stayed in the car. Finally, appellant
acknowledged that he had participated, that it was "Mo's idea"
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and that Graham had a toy gun, that he taped a person's hands,
and that his cut was $300.
Discussion
[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 of abduction is
separate and apart from, not merely
incidental to, the restraint employed in the
commission of the other crime.
Brown v. Commonwealth, 230 Va. 310, 314, 337 S.E.2d 711, 713-14
(1985). "[T]o 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." Cardwell v.
Commonwealth, 248 Va. 501, 511, 450 S.E.2d 146, 152 (1994).
Even if the purpose of the abduction is in furtherance of the
robbery in allowing the defendant to make an effective escape,
an act of abduction is not considered inherent in the crime of
robbery. See Phoung v. Commonwealth, 15 Va. App. 457, 462, 424
S.E.2d 712, 715 (1992) (binding together victim's hands and feet
is not act inherent in crime of robbery, nor is asportation of
the victim).
Appellant, armed with a gun, forced Araya to lie on the
floor. Appellant bound Araya's hands, taped shut his eyes, and
stepped on his back before removing his wallet and the money
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from the cash register. This detention was separate and apart
from the restraint necessary to commit the robbery and supported
convictions for abduction and robbery.
For these reasons, appellant's convictions are affirmed.
Affirmed.
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