Wally Nathaniel Boone v. Commonwealth ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Bumgardner and Clements
WALLY NATHANIEL BOONE
MEMORANDUM OPINION * BY
v. Record No. 1677-01-1 JUDGE JEAN HARRISON CLEMENTS
AUGUST 20, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Lydia Calvert Taylor, Judge
(B. Cullen Gibson, on brief), for appellant.
Appellant submitting on brief.
(Jerry W. Kilgore, Attorney General; Eugene
Murphy, Assistant Attorney General, on
brief), for appellee. Appellee submitting on
brief.
Wally Nathaniel Boone was convicted in a bench trial of
abduction for pecuniary benefit in violation of Code § 18.2-48 and
use of a firearm while committing abduction in violation of Code
§ 18.2-53.1. On appeal, he contends the trial court erred in
ruling that the evidence was sufficient to convict him of
abduction and its attendant charge of use of a firearm in the
commission of abduction because the detention of the victim was
inherent in the commission of the robbery. Finding no error, we
affirm the convictions.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, this opinion recites only those facts and incidents of the
proceedings as necessary to the parties' understanding of the
disposition of this appeal.
Boone argues that taking money from the three cash registers
in the front of the Blockbuster Video store and then proceeding to
the back room and taking money from the safe there was one
continuous robbery. He contends he needed an employee to open the
safe; consequently, ordering the victim to go from the cash
registers in the front of the store to the safe in the back of
store was restraint necessary to complete the robbery. Thus, he
concludes, the trial court erred in finding the evidence
sufficient to convict him of abduction.
When the sufficiency of the evidence is challenged on appeal,
we review the evidence "in the light most favorable to the
Commonwealth, granting to it all reasonable inferences fairly
deducible therefrom." Bright v. Commonwealth, 4 Va. App. 248,
250, 356 S.E.2d 443, 444 (1997). We will not disturb a conviction
unless it is plainly wrong or unsupported by the evidence.
Sutphin v. Commonwealth, 1 Va. App. 241, 243, 337 S.E.2d 897, 898
(1985).
In Brown v. Commonwealth, 230 Va. 310, 337 S.E.2d 711 (1985),
the Supreme Court recognized that the legislature did not intend,
in enacting Code § 18.2-47, "to make the kind of restraint which
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is an intrinsic element of crimes such as rape, robbery, and
assault a criminal act, punishable as a separate offense." Id. at
314, 337 S.E.2d at 713. Accordingly, the Court held that
one 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, 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.
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. See Jones v.
Commonwealth, 13 Va. App. 566, 572, 414 S.E.2d 193, 196 (1992). A
defendant may be convicted of abduction in addition to robbery if
the victim's detention is "greater than the restraint that is
intrinsic in a robbery." Cardwell v. Commonwealth, 248 Va. 501,
511, 450 S.E.2d 146, 152 (1994). Moreover, we have held that
asportation to facilitate the commission or completion of a
robbery is not an element inherent in, or necessary to, the
robbery. See Phoung v. Commonwealth, 15 Va. App. 457, 462, 424
S.E.2d 712, 715 (1992). Likewise, we have held that
"asportation to decrease the likelihood of detection is not an
act inherent in or necessary to the restraint required in the
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commission of" the related crime. Coram v. Commonwealth, 3 Va.
App. 623, 626, 352 S.E.2d 532, 534 (1987).
Here, the evidence proved that Boone entered the
Blockbuster Video store, pulled out a gun, and ordered King
Solomon Williams and Yolanda Holtz to remove the money from the
three registers in the front of the store and place it in a blue
and white Blockbuster bag. Holtz, the store manager and only
person who could open the registers, did as she was ordered, as
did Williams. Four customers were in the rear section of the
store. Boone asked Holtz "if there was anyone else in the
back." When Holtz said no, Boone said, "Let's walk to the
back."
Once they were in the office at the back of the store,
Boone ordered Williams to rip the phone cord out of the wall and
sit down. Boone told Holtz to open a safe that was in the
office and remove the cash. Holtz did so, placing the money
from the safe into the same Blockbuster bag that contained the
other money from the front registers. Boone told Holtz to give
him the store's surveillance tape. He put the tape in the bag,
told the two employees to "have a nice night," and walked out of
the store.
Upon seeing on the store's security screen that Boone had
left the store, Holtz ran out of the office to the front of the
store. She told the customers the store had been robbed and
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asked them to leave. She reported the crime to a security guard
who was walking past the front of the store.
The trial court concluded that the robbery of Holtz was
complete when she surrendered the money from the three cash
registers to Boone. Boone, the court found, did not know about
the safe in the back office and was not looking for a safe when
he ordered Holtz into the back of the store. Rather, the court
reasoned, because there were customers in the store, Boone
ordered Holtz and Williams "from the front to the back of the
store to keep them from alerting the customers that a robbery
was in progress." The court also observed that Boone's ordering
Williams to rip the phone cord out of the wall and directing
Holtz to surrender the incriminating surveillance tape were
consistent with his desire to prevent the employees from
alerting the customers or the police about the robbery and from
identifying him as the robber.
Based upon our review of the record, we cannot say that the
trial court's judgment was plainly wrong or without credible
evidence to support it. Because there is no evidence in the
record to show that Boone was aware that there was a safe in the
back of the store, the trial court could properly find from the
evidence presented that Boone's detention and asportation of
Holtz to the back of the store facilitated the commission or
completion of the robbery. The trial court was also entitled to
find that Boone's detention and asportation of Holtz, like his
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having the phone ripped from the wall and his retrieval of the
surveillance tape, decreased the likelihood of his detection.
Based on these findings, the trial court could then reasonably
conclude that Boone's abduction of Holtz was "separate and apart
from, and not merely incidental to" the restraint employed in
the crime of robbery. Brown, 230 Va. at 314, 337 S.E.2d at
713-14. We hold, therefore, that the evidence presented at
trial was sufficient to prove beyond a reasonable doubt that
Boone abducted Holtz. Thus, the trial court did not err in
convicting Boone of abduction and its attendant charge of use of
a firearm in the commission of abduction.
Accordingly, we affirm Boone's convictions.
Affirmed.
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