Jose R Ortega v. Commonwealth ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Kelsey and Senior Judge Willis
Argued at Chesapeake, Virginia
JOSE R. ORTEGA
MEMORANDUM OPINION * BY
v. Record No. 3394-01-1 JUDGE ROBERT P. FRANK
MARCH 11, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Patricia L. West, Judge
Curtis T. Brown for appellant.
Jennifer R. Franklin, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Jose R. Ortega (appellant) was convicted in a jury trial of
abduction, in violation of Code § 18.2-47. 1 On appeal, appellant
contends the evidence was not sufficient to prove that the
asportation of the victim was more than was necessary to
accomplish the accompanying robbery. For the reasons stated, we
affirm the conviction.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
Appellant was convicted of additional felonies, including
robbery, which are not relevant here.
BACKGROUND
On January 19, 2001, Lin Hong and Zhen Chen were working in
the Fung Lin Restaurant when three men wearing masks entered the
establishment. Appellant was the masked man who carried the gun.
Lin Hong was in the kitchen, but she came out to the register
when she heard the doorbell. Zhen Chen was cleaning the counter,
about twelve to fifteen feet from the register.
The men walked up to the cash register area. The two men who
were not carrying guns went to the back of the restaurant and then
returned immediately. One of the three men ordered Lin Hong to
open the cash register, which she did. The men then told Lin Hong
to get on the floor. She complied. The man with the gun waved
the weapon and indicated Zhen Chen should move over to the cash
register. Zhen Chen went over to the cash register area and lay
down beside Lin Hong.
Lin Hong and Zhen Chen were on the floor for about ten
minutes. The robbers took money from the cash drawer and from
underneath the cash register. They also demanded the key to a
locked cabinet under the register. When Lin Hong said she did not
have the key, one of the men kicked the cabinet open. The men
took between $400 and $500 from the restaurant. Zhen Chen did not
get off the floor until he heard the doorbell jingle and assumed
the three men had left.
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ANALYSIS
Appellant contends he did not abduct Zhen Chen because Zhen's
detention was merely incidental to the restraint necessary to
commit the robbery. While appellant's general legal proposition
is correct, the facts of this case involved more than incidental
restraint.
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(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.
Cardwell v. Commonwealth, 248 Va. 501, 511, 450 S.E.2d 146, 152
(1994).
Our decision in Phoung v. Commonwealth, 15 Va. App. 457,
424 S.E.2d 712 (1992), is instructive. In Phoung, the defendant
bound the victim in her kitchen, dragged her upstairs to a
bedroom, placed her on the bed, and tied her more securely.
Once in the bedroom, defendant took jewelry and other property.
We held, "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."
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Id. at 462, 424 S.E.2d at 715. Similarly, in Coram v.
Commonwealth, 3 Va. App. 623, 352 S.E.2d 532 (1987), we stated:
When Coram grabbed the victim, he
transported her from a location that was
lighted and visible from the street to one
out of sight of potential passersby, or
others who might leave or enter the victim's
apartment. Coram's asportation of the
victim, as shown by the evidence,
substantially increased the risk of harm to
the victim by decreasing the possibility of
detecting his criminal activity. Moreover,
asportation to decrease the possibility of
detection is not an act inherent in or
necessary to the restraint required in the
commission of attempted rape. His behavior
substantially invaded the interests that
[Code] § 18.2-47 was designed to protect.
Id. at 626, 352 S.E.2d at 533-34.
"The elements of robbery, a common law offense in Virginia,
include a '"taking, with intent to steal, of the personal
property of another, from his person or in his presence, against
his will, by violence or intimidation"' which precedes or is
'concomitant with the taking.' Harris v. Commonwealth, 3
Va. App. 519, 521, 351 S.E.2d 356, 356 (1986) (quoting Johnson
v. Commonwealth, 209 Va. 291, 293, 163 S.E.2d 570, 572-73
(1968))." Jones v. Commonwealth, 13 Va. App. 566, 572, 414
S.E.2d 193, 194 (1992). Here, appellant's detention of Zhen
Chen was greater than the amount necessary to commit the
robbery. Zhen Chen was not the subject of the robbery nor was
his movement necessary to accomplish the robbery. Even so, he
was directed to move approximately fifteen feet toward the
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location where Lin Hong was ordered to lie down. This
asportation was unnecessary to accomplish the robbery. Zhen
could have remained where he was, and the robbery still could
have been accomplished.
The fact finder reasonably could have concluded that Zhen's
asportation and detention were "separate and apart from, and not
merely incidental to, the restraint employed in the commission
of [robbery]." Brown v. Commonwealth, 230 Va. 310, 314, 337
S.E.2d 711, 714 (1985). Accordingly, we hold that the evidence
supports the jury's finding that appellant abducted Zhen.
Affirmed.
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