Javaughn Marquel Breland v. Commonwealth of Virginia ( 2012 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Humphreys and Huff
UNPUBLISHED
Argued at Richmond, Virginia
JAVAUGHN MARQUEL BRELAND
MEMORANDUM OPINION * BY
v. Record No. 2207-11-2 JUDGE ROBERT J. HUMPHREYS
OCTOBER 2, 2012
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Theodore J. Markow, Judge Designate
(Ashley L. Slone; Englisby, Vaughn & Slone, on brief), for
appellant. Appellant submitting on brief.
Benjamin H. Katz, Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
Javaugh Marquel Breland (“Breland”) was convicted in the Circuit Court of the County
of Chesterfield (“trial court”) of abduction in violation of Code § 18.2-47, assault and battery in
violation of Code § 18.2-57, and petit larceny in violation of Code § 18.2-96. On appeal,
Breland contends that the trial court erred in “denying [his] motion to strike the abduction charge
because the detention underlying that charge was merely incidental to the assault and battery.”
For the reasons that follow, we affirm.
I. Background
On December 24, 2010, Zachary Nobles (“Nobles”) drove to the WaWa gas station on
Jefferson Davis Highway in Chesterfield County. As he pulled his car into the parking lot,
Breland was in a car that was exiting, and the two cars almost collided. Nobles directed his
middle finger at the driver of the other vehicle before parking and entering the store.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
While Nobles was in line to check out, Breland entered the store and tapped him on the
shoulder. Breland asked if Nobles had flipped him off, and Nobles said yes because Breland had
almost crashed into him. Breland asked if Nobles wanted to “settle this outside.” Nobles was
baffled by the invitation and asked if Breland was serious. Breland then walked back outside.
Nobles finished checking out and then proceeded to the men’s restroom. As he was
facing the toilet, he turned around and noticed that Breland had entered the restroom and was
standing up against the door, facing him. Nobles tried to leave the restroom, but Breland was
“blocking the door” and “wouldn’t let [Nobles] get out.” The door was the only way out of the
restroom. While he was blocking the door, Breland continued asking why Nobles flipped him
off. As this was happening, someone attempted to come into the bathroom, and Breland let that
person in. After Breland let the person in, Nobles tried to leave again, but he testified that “it
wasn’t happening.”
At that point, Nobles “came up really close to [Breland], and [Breland] just started
punching [Nobles] in the face.” Breland punched Nobles four or five times, which knocked
Nobles down. While Nobles was on the ground, Breland repeatedly kicked him in the face and
ribs. Breland then grabbed Nobles’ hat, which had fallen off during the scuffle, and left.
Breland was charged with malicious wounding, abduction, and grand larceny. Breland
was tried by a bench trial, and the trial court found him guilty of the abduction charge and the
lesser-included offenses of assault and battery and petit larceny. Breland then noted this appeal.
II. Analysis
On appeal, Breland argues that the trial court should have struck his abduction charge,
because it was merely incidental to the assault and battery. In analyzing this issue, we note our
standard of review: “[w]hether an abduction is merely incidental to another crime is a question
of law. However, because no two crimes are exactly alike, determining whether an abduction is
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incidental necessarily requires consideration of the historical facts of each case.” Hoyt v.
Commonwealth, 44 Va. App. 489, 496 n.4, 605 S.E.2d 755, 758 n.4 (2004). Therefore, “[w]e
defer to the trial court’s findings of historical fact, but we review de novo the trial court’s
application of those facts to the law.” Id.The rule Breland relies upon, which has been referred to as the incidental detention
doctrine, draws its origin in the Commonwealth from our Supreme Court’s holding in Brown v.
Commonwealth, 230 Va. 310, 337 S.E.2d 711 (1985). In that case, the Supreme 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. 1
Id. at 314, 337 S.E.2d at 713-14. This rule “focuses not on whether the restraint was merely
useful to perpetrating a detention-plus crime -- but whether the restraint was ‘intrinsic’ to or
‘inherent’ in the detention-plus crime.” Pryor v. Commonwealth, 48 Va. App. 1, 6, 628 S.E.2d
47, 49 (2006) (internal citations omitted).
In Hoyt v. Commonwealth, 44 Va. App. 489, 605 S.E.2d 755 (2004), we discussed how
courts in the Commonwealth and other states have historically applied the rule. We explained
that, while there was no universal test, there are four main factors that courts use to determine
whether an abduction is incidental to another offense.
Those factors are: (1) the duration of the detention or asportation;
(2) whether the detention or asportation occurred during the
commission of a separate offense; (3) whether the detention or
asportation which occurred is inherent in the separate offense; and
1
The Supreme Court clarified that this ruling “only applies when a defendant is
convicted of two or more crimes arising out of the same factual episode and, thus, the guarantee
of double jeopardy may be implicated.” Walker v. Commonwealth, 272 Va. 511, 516, 636
S.E.2d 476, 479 (2006). Since the trial court convicted Breland of assault and battery in addition
to abduction in connection to the same factual episode, the rule is applicable in this case.
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(4) whether the asportation or detention created a significant
danger to the victim independent of that posed by the separate
offense.
Id. at 494, 605 S.E.2d at 757 (quoting Gov’t of Virgin Islands v. Berry, 604 F.2d 221, 226 (3d
Cir. 1979)).
When you apply this test to the facts of this case, it is clear that the abduction was
separate and apart from, and not merely incidental to, the restraint used in the assault and battery.
Brown, 230 Va. at 314, 337 S.E.2d at 713-14. While the record does not provide an exact
duration of Breland’s detention of Nobles, the facts and nature of this case suggest that the
detention did not last long. Additionally, there is no indication that the detention created any
significant danger to the victim independent of the impending assault and battery. Nevertheless,
all of the elements of the abduction occurred entirely before the assault and battery began. 2
Breland could have committed the assault and battery without first detaining Breland in the
bathroom. Instead, he blocked the only exit from the bathroom while he questioned Nobles.
Furthermore, while some form of detention may be inherent in an assault and battery, such as
pinning the victim down or putting the victim in a head lock, the detention that occurred here
was not of that type.
Given the facts of this case, we hold that the abduction was separate and apart from, and
not merely incidental to, the restraint used in the assault and battery, and therefore, the trial court
did not err in denying Breland’s motion to strike. Thus, we affirm the judgment of the trial court
below.
Affirmed.
2
Abduction under Code § 18.2-47(a) states in relevant part that “[a]ny person who, by
. . . intimidation . . . , and without legal justification or excuse, . . . detains . . . another person
with the intent to deprive such other person of his personal liberty . . . shall be deemed guilty of
‘abduction.’” It is clear from the record that Breland’s acts satisfied the elements of the offense
before the assault and battery occurred.
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