Ricky A. Taylor v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Willis and Bray
Argued at Norfolk, Virginia
RICKY A. TAYLOR
v. Record No. 0995-94-1 MEMORANDUM OPINION * BY
JUDGE JERE M. H. WILLIS, JR.
COMMONWEALTH OF VIRGINIA MAY 23, 1995
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Robert P. Frank, Judge
George B. Pavek, III, for appellant.
Robert B. Condon, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Ricky A. Taylor contends that making the victims get out of
their car during the robbery and attempted robbery does not
constitute the separate crime of abduction. We find no error and
affirm the judgments of the trial court.
When reviewing criminal convictions, we consider the
evidence in the light most favorable to the Commonwealth, giving
to it all inferences fairly deducible therefrom. Sutphin v.
Commonwealth, 1 Va. App. 241, 243, 337 S.E.2d 897, 898 (1985). A
conviction will be affirmed unless plainly wrong or without
evidence to support it. Higginbotham v. Commonwealth, 216 Va.
349, 352, 218 S.E.2d 534, 537 (1975).
Larry Davis and Natasha Calver were sitting in Calver's car
when Taylor and his brother pulled up in a vehicle next to them.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Taylor approached the passenger side of Calver's car. His
brother approached the driver's side and shoved a shotgun in the
open window. Taylor's brother forced Davis out of the car and
made him lie on the ground, face down. He put his foot on
Davis's back and held the shotgun to his head. He demanded
Davis's money, but Davis had none. Taylor ordered Calver out of
the car and made her kneel on the ground. He then took her purse
containing $110, ordered her back into the car, and threatened to
kill her if she looked up before he left.
Code § 18.2-47 defines abduction and provides, in pertinent
part:
Any person, who, by force, intimidation or deception,
and without legal justification or excuse . . . detains
. . . the person of another, with the intent to deprive
such other person of his personal liberty . . . shall
be deemed guilty of "abduction" . . . .
In Brown v. Commonwealth, 230 Va. 310, 337 S.E.2d 711
(1985), the Supreme Court held "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." 230 Va. at 314,
337 S.E.2d at 713. The Court went on to define the type of
detention addressed by the abduction statute as a "detention
. . . separate and apart from and not merely incidental to, the
restraint employed in the commission of the other crime." 230
Va. at 314, 337 S.E.2d at 714.
The question before us is whether the detention of the
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victims in this case was "separate and apart" from or "merely
incidental" to the robbery and attempted robbery. We find the
evidence sufficient to support the conclusion that the detentions
were separate and apart. The victims were forced out of their
car onto the ground. This was more than was needed to accomplish
the robbery and attempted robbery. Thus, forcing the victims out
of the car before committing the robbery is "not an act inherent
in or necessary to the restraint required" for the robbery.
Coram v. Commonwealth, 3 Va. App. 623, 626, 352 S.E.2d 532,
533-34 (1987).
We affirm the judgments of the trial court.
Affirmed.
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