Marvin D. Dade v. Commonwealth ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Humphreys and Senior Judge Overton
Argued at Chesapeake, Virginia
MARVIN D. DADE
MEMORANDUM OPINION * BY
v. Record No. 2042-02-1 JUDGE ROBERT P. FRANK
JUNE 24, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Von L. Piersall, Jr., Judge
Felipita Athanas (Public Defender Commission,
on briefs), for appellant.
Paul C. Galanides, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Marvin D. Dade (appellant) was convicted in a jury trial of
abduction with the intent to defile, in violation of Code
§ 18.2-48; animate object sexual penetration, in violation of Code
§ 18.2-67.2; and taking indecent liberties with a minor, in
violation of Code § 18.2-370. On appeal, he challenges only the
abduction conviction, contending the abduction was incidental to
the animate object sexual penetration offense and not a separate
offense. For the reasons stated, we affirm the conviction.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
BACKGROUND
KM, age 12, testified that on May 22, 2001 she was living in
Portsmouth with her mother, two sisters, and appellant, who was
her mother's boyfriend. On that evening, her mother left home for
work. KM stayed at home with her sisters and appellant. Around
1:00 or 2:00 a.m., KM was in the bathroom and heard appellant
calling to her to bring him water.
She went into her mother's bedroom, turned on the light, and
saw appellant sitting on the bed. KM noticed a glass of water
already sitting on the table. She mentioned the water to
appellant and said, "I'm going back to bed."
At that point, appellant grabbed her by her left arm, and she
fell on the bed. When asked why she did not run away when
appellant grabbed her, KM responded, "He was too strong." After
turning off the lights, he lay down on top of her and started
pulling down her shorts and her panties. He then pulled his own
pants down. She heard a zipper and "automatically knew he was
taking off his pants." She then felt his hand in her "private
parts." She testified it felt like a sharp fingernail. He took
his finger out of her vagina and began touching his penis.
On cross-examination, KM testified she told the police that
she woke up in her own bedroom and appellant was standing over
her. She also told the police that appellant ejaculated on her,
not the bedspread.
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After the conclusion of the Commonwealth's case-in-chief,
appellant moved to strike the evidence, arguing KM's testimony was
inconsistent and not credible. After appellant presented his
case, he failed to renew his motion to strike.
ANALYSIS
Appellant concedes he did not raise the issue of "incidental
abduction" at trial. Therefore, we must determine whether the
"ends of justice exception" to Rule 5A:18 applies.
"The Court of Appeals will not consider an
argument on appeal which was not presented
to the trial court." Ohree v. Commonwealth,
26 Va. App. 299, 308, 494 S.E.2d 484, 488
(1998) (citing Jacques v. Commonwealth, 12
Va. App. 591, 593, 405 S.E.2d 630, 631
(1991)); see also Rule 5A:18.
However, Rule 5A:18 provides for
consideration of a ruling by the trial court
that was not objected to at trial "to enable
the Court of Appeals to attain the ends of
justice." Rule 5A:18. "'The ends of
justice exception is narrow and is to be
used sparingly'" when an error at trial is
"'clear, substantial and material.'" Redman
v. Commonwealth, 25 Va. App. 215, 220-21,
487 S.E.2d 269, 272 (1997) (quoting Brown v.
Commonwealth, 8 Va. App. 126, 132, 380
S.E.2d 8, 10-11 (1989)). "In order to avail
oneself of the exception, a defendant must
affirmatively show that a miscarriage of
justice has occurred, not that a miscarriage
might have occurred." Id. at 221, 487
S.E.2d at 272 (citing Mounce v.
Commonwealth, 4 Va. App. 433, 436, 357
S.E.2d 742, 744 (1987)).
In order to show that a miscarriage of
justice has occurred, an appellant must
demonstrate more than that the Commonwealth
failed to prove an element of the offense
. . . . The appellant must demonstrate that
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he or she was convicted for conduct that was
not a criminal offense or the record must
affirmatively prove that an element of the
offense did not occur.
Id. at 221-22, 487 S.E.2d at 272-73(emphasis in original).
Michaels v. Commonwealth, 32 Va. App. 601, 607-08, 529 S.E.2d
822, 825-26 (2000).
Appellant contends he did not abduct KM, since the
detention was not separate and apart from, but was merely
incidental to, the restraint employed in the indecent liberties
and object sexual penetration offenses. Thus, he concludes, the
ends of justice exception in Rule 5A:18 applies, and we should
consider his sufficiency argument. We disagree.
Appellant is correct in his general statement of the law.
A defendant may be convicted of abduction in
addition to "another crime involving
restraint of the victim, both growing out of
a continuing course of conduct, . . . only
when the detention committed in the act of
abduction is separate and apart from, and
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).
Powell v. Commonwealth, 261 Va. 512, 540-41, 522 S.E.2d 344, 361
(2001).
Appellant cites Brown v. Commonwealth, 230 Va. 310, 337
S.E.2d 711 (1985), to support his position. To the contrary,
the facts in Brown support the conviction. In Brown, the
appellant entered victim's car, struck her, threatened her and
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then drove to a secluded location, where the sexual assault took
place. Id. at 312, 337 S.E.2d at 712. The Supreme Court found
"the detention underlying the abduction conviction was not the
kind of restraint that is inherent in the act of rape." Id. at
314, 337 S.E.2d at 714.
Appellant argues, "[t]he only evidence of restraint was
that [appellant] laid [sic] on top of [KM]." Appellant ignores
KM's testimony that appellant grabbed her as she tried to leave
the room. Appellant also ignores the testimony that appellant
tricked KM into leaving the bathroom and into entering his
bedroom by asking for water. See Kent v. Commonwealth, 165 Va.
840, 183 S.E. 177 (1935) (defendant induced victim to accompany
him in his car with the promise he would re-pay victim for an
outstanding debt). Neither of these acts was "inherent in" the
commission of object sexual penetration or indecent liberties.
In fact, both the grabbing and the inducement occurred prior to
these other crimes, which occurred on the bed. Clearly, the
record includes evidence to support all the elements of the
crime of abduction.
Appellant argues Reed v. Commonwealth, 6 Va. App. 65, 366
S.E.2d 274 (1988), allows this Court to apply the ends of
justice exception to Rule 5A:18 in the case of sufficiency
arguments. Although the Court did apply the exception and
overturn Reed's conviction for trespassing, the facts in Reed
are substantially different than the facts before this Court.
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Reed argued he had not committed the crime because the
uncontradicted evidence proved he believed he had a legitimate
claim to remain on the property. Id. at 69-70, 366 S.E.2d at
277. In other words, the evidence affirmatively proved an
element of the crime, intent, did not exist. Here, appellant
does not argue no detention of the victim occurred, only that
the detention was incidental to another crime. Appellant admits
abduction is an "inherent element" in at least one of the sexual
abuse charges. He does not contend, nor do we find, that an
element of abduction was disproved by the evidence. Instead, he
contends the detention was insufficient to rise to a level the
element inherent in a sexual assault. This argument clearly
does not parallel the analysis in Reed.
Essentially, appellant argues sufficiency on appeal. Thus,
we conclude no manifest injustice occurred.
We affirm the judgment of the trial court.
Affirmed.
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