Edward K. Burgess v Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Fitzpatrick, Judges Benton and Clements
Argued at Chesapeake, Virginia
EDWARD K. BURGESS
MEMORANDUM OPINION* BY
v. 	Record No. 0275-00-1 	JUDGE JAMES W. BENTON, JR.
DECEMBER 19, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SOUTHAMPTON COUNTY
Westbrook J. Parker, Judge
Robert O'Neill (Office of the Public
Defender, on brief), for appellant.
Stephen R. McCullough, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
A jury convicted Edward K. Burgess of attempted robbery and
attempted abduction. 	Burgess contends the evidence was
insufficient to prove an attempt to detain that was not incidental
to the restraint employed in the attempted robbery. 	We agree and
reverse the conviction for attempted abduction.
I.
The evidence at trial proved that Marcus Evans, a
correctional officer at the Southampton Correctional Facility,
went to Burgess' cell to take him to the shower. 	Evans testified
that after he restrained Burgess' hands behind his back with

handcuffs and began to escort Burgess to the shower, Burgess said
that he had no towel. 	Burgess indicated that the inmate in the
next cell, White, had a towel that Burgess could use. 	As Evans
led Burgess to White's locked cell to retrieve the towel, Burgess
reached to get a piece of plexiglass from the floor. 	Evans pulled
the restraining strap to raise Burgess and turned him around so
that Evans could escort him to the shower without the towel. 	As
Evans turned Burgess around, White used his arms to grab Evans
around the neck. 	Burgess lunged into Evans with his shoulder and
pushed Evans against the bars of White's cell. 	White then stuck a
pencil into the left side of Evans' neck and threatened to kill
Evans if he moved. 	Evans grabbed White's hand, removed himself
from White's grasp, and pinned Burgess to the floor.
As Evans struggled to pull Burgess off the floor, White
stepped to the back of his cell, then returned to the cell's bars,
and grabbed the plexiglass. 	White again reached through the bars
and brought the plexiglass down over Evans' arms. 	As Evans
knocked the plexiglass out of White's hands, White reached and
grabbed the chain to which Evans' keys were attached. 	Evans
managed to grab the keys while still restraining Burgess on the
ground. 	Evans then radioed for assistance and continued to pull
Burgess away.
When Sergeant Louis Diaz responded to assist Evans, he saw
Evans and Burgess struggling. 	Burgess was trying to pull the keys
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from Evans' hands. 	Diaz took the keys from Burgess' hand and
assisted Evans in putting Burgess in the cell.
The prosecutor argued to the jury that Burgess and White
attempted to rob Evans of his keys. 	He also argued that White
grabbed Evans and Burgess pushed Evans into White's grasp as they
"were attempting to gain control of his person." 	At the
conclusion of the arguments the jury deliberated and convicted
Burgess of both indicted offenses -- attempted robbery and
attempted abduction.
II.
Code § 18.2-47 states that "any person, who, by force . . .
seizes, takes, transports, detains or secretes 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 as follows:
[D]etention is a discrete species of
abduction. 	We are of opinion, however, that
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 crimes such as rape, robbery, and
assault a criminal act, punishable as a
separate offense. . . .
We hold, therefore, 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
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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, a common law offense
in Virginia, is defined as "the 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."
Johnson v. Commonwealth, 209 Va. 291, 293, 163 S.E.2d 570,
572-73 (1968).
The evidence proved that Burgess and White acted together
in an attempt to rob Evans of his keys. 	The struggle that
occurred was one continuous fray with White and Burgess
attempting to immobilize Evans. 	Although Evans described a part
of this action as "another struggle," his testimony proves,
contrary to the Commonwealth's argument, that the whole
altercation was continuous. 	Evans' resistance frustrated the
attempt to subdue him, but his freedom from White's grasp in the
midst of the attack did not change the character of the activity
when it resumed. 	The evidence failed to prove that the acts
which gave rise to the attempted robbery were separate and apart
from the attempted abduction charged in the indictment. 	The
attack and struggles were continuous and not shown to be
motivated by an intent to deprive Evans of his personal liberty
except as an incident of the attempt to rob him.
The Commonwealth relies on Bell v. Commonwealth, 22 Va.
App. 93, 468 S.E.2d 114 (1996), for support of its argument that
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the events were separate. 	In that case, Bell and an accomplice
robbed two victims as the victims approached their car on a
Richmond street. 	Id. at 96, 468 S.E.2d at 116. 	After handing
over their possessions, the victims attempted to flee, but Bell
ordered them to return at gunpoint. 	Id. at 97, 468 S.E.2d at
116. 	Bell then forced the victims to the other side of their
car and ordered them to lie on the ground. 	Id. 	After patting
the legs of the female victim, Bell sexually assaulted her. 	Id.
We held as follows:
[T]he jury could reasonably have found from
the evidence that Bell's actions in pulling
[the sexual assault victim] around the car
and ordering her to lie down were acts of
restraint and asportation separate and apart
from the restraint inherent in either the
sexual assault or the robbery. 	Furthermore,
the jury could reasonably have concluded
that Bell moved [her] to avoid detection.
22 Va. App. at 97-98, 468 S.E.2d at 116 (citations omitted).
In this case, the jury could not reasonably have concluded
that Burgess' acts of detention were anything other than an
intrinsic element of the attempted robbery. 	In Bell,
restraining and asportating the victims constituted an
additional act not necessary to the robbery or the sexual
assault. 	Bell and his accomplice could have completed their
series of crimes without moving the victims to the other side of
the car; they did not do so. 	Therefore, the jury could have
concluded that they were guilty of the separate crime of
abduction. 	In contrast, Burgess and White had no opportunity or
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reason to commit their crime in another manner. 	For instance,
they could not have been attempting to conceal their victim as
Bell did. 	Therefore, we hold that the attempted abduction was
merely incidental to the attempted robbery and was not a
separate crime.
Accordingly, we reverse the conviction for attempted
abduction.
Reversed and dismissed.
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