COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Willis and Bray 

SEAN A. BOONE 

v. Record No. 1473-94-1 MEMORANDUM OPINION*

 BY JUDGE SAM W. COLEMAN III 

COMMONWEALTH OF VIRGINIA JULY 5, 1995 

 

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON 

Nelson T. Overton, Judge 

 (Kevin P. Shea, on brief, for appellant.) 

Appellant submitting on brief. 

 (James S. Gilmore, III, Attorney General; 

Thomas C. Daniel, Assistant Attorney General, 

on brief, for appellee.) Appellee submitting 

on brief. 

 Sean A. Boone was convicted of carjacking, abduction of 

Casey Mesic, use of a firearm in the abduction of Casey Mesic, 

and use of a firearm (second offense) in the robbery of Cynthia 

Mesic. He contends that the abduction of Casey Mesic was 

incidental to the carjacking of Cynthia Mesic's automobile and, 

therefore, not a separate offense for which he could be 

convicted; that the trial court erred by finding him guilty of 

the use or display of a firearm in a robbery when he was not 

prosecuted for robbery, but rather, was prosecuted for 

carjacking; and that identity evidence was unduly suggestive and 

did not support his convictions. For the following reasons, we 

affirm the decisions of the trial court. 

 

 * Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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 At 9:30 p.m., Cynthia Mesic and her two daughters were 

returning home in their car. They stopped by a cluster of 

mailboxes so that Casey Mesic, age ten, could retrieve the 

family's mail. As Casey was returning to the car, Sean Boone, 

the appellant, grabbed Casey, put his hand over her mouth, and 

placed a gun to her temple. Cynthia Mesic thought that Boone 

"was going to run with her" daughter. Boone was directing Casey 

to tell her mother to get out of the car. Cynthia Mesic and her 

daughter, Megan, age seven, got out of the car and ran to where 

Boone was directing them to go by pointing his gun. Boone then 

released Casey and drove off in the Mesic car. 

 Approximately a week later, a Portsmouth police officer saw 

Sean Boone driving the Mesic car, but the car was bearing Florida 

license plates registered to another car. Boone told the officer 

that he had gotten the car earlier in the day from James Bowen. 

Later, Boone told the officer the car came from Willie Bowen. 

Boone had the car's registration in a small black book, which 

also contained his driver's license, and he had the keys to the 

vehicle on his key chain. 

 Cynthia Mesic and Casey Mesic positively identified Sean 

Boone at trial as the person who forcibly grabbed Casey at 

gunpoint. The description of Boone that Cynthia gave the 

officers after the carjacking was strikingly similar to Boone's 

actual physical characteristics. The incident took place in a 

well-lit location of the housing complex, and Boone was as close 
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as five feet to Cynthia Mesic. 

 Boone testified that an acquaintance by the name of DeShawn 

(last name unknown) had stolen the car and that he was just 

borrowing it. 

 I. 

 Boone contends that he cannot be prosecuted for the 

abduction of Casey Mesic and carjacking because of the 

constitutional protection against double jeopardy. He contends 

that the element of detention necessary for abduction was 

incidental to the carjacking and that the same act cannot 

constitute two crimes. 

 "The applicable rule is that where the same act or 

transaction constitutes a violation of two distinct statutory 

provisions, the test to be applied to determine whether there are 

two offenses or only one is whether each provision requires proof 

of a fact that the other does not." Blockburger v. U.S., 284 

U.S. 299, 304 (1932). "The Supreme Court later stated that 'if 

each [offense] requires proof of a fact that the other does not, 

the Blockburger test is satisfied notwithstanding any substantial 

overlap in the proof offered to establish the crimes.'" Hill v. 

Commonwealth, 2 Va. App. 683, 706, 347 S.E.2d 913, 926 (1986) 

(quoting Iannelli v. U.S., 420 U.S. 770, 785 n.17 (1975)). 

 The abduction of Casey Mesic was a separate and distinct 

act, apart from the seizure of Cynthia Mesic's automobile. See

Brown v. Commonwealth, 230 Va. 310, 337 S.E.2d 711 (1985). 
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Abduction of Casey Mesic and carjacking were two separate crimes 

without common elements. The crime of carjacking requires the 

prosecution to prove facts and elements different from those 

necessary to prove abduction, and vice versa. Boone was properly 

charged with and convicted of both offenses. See Blyth v. 

Commonwealth, 222 Va. 722, 726, 284 S.E.2d 796, 798 (1981) 

(citing Whalen v. U.S., 445 U.S. 684, 694 n.8 (1980)). 

 II. 

 The appellant next contends that he was improperly convicted 

of the use or display of a firearm in a threatening manner while 

committing robbery because the Commonwealth did not charge or 

convict him of the predicate offense of robbery. 

 Under Code § 18.2-53.1, proof of the underlying predicate 

felony is a distinct element that must be proven beyond a 

reasonable doubt. See Jones v. Commonwealth, 218 Va. 18, 22, 235 

S.E.2d 313, 315 (1977). Use of a firearm in the commission of a 

robbery and robbery are separate and independent crimes. See

Morris v. Commonwealth, 228 Va. 484, 492, 323 S.E.2d 567, 572 

(1984). "There is no language in the statute which suggests that 

the legislature intended that an accused must be charged and 

prosecuted for the underlying felony. That decision is left to 

the Commonwealth's attorney in whom discretion is vested." Davis 

v. Commonwealth, 4 Va. App. 27, 30, 353 S.E.2d 905, 907 (1987). 

To obtain a conviction for a violation of Code § 18.2-53.1, the 

Commonwealth is not required to separately indict and prosecute 
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the defendant for the underlying predicate felony. Id. at 31, 

353 S.E.2d at 907. Although Boone was charged and convicted of 

carjacking, the evidence was sufficient to prove beyond a 

reasonable doubt the crime of robbery. Accordingly, the trial 

court did not err in finding Boone guilty of use of a firearm in 

the commission of robbery in violation of Code § 18.2-53.1. 

 III. 

 Boone next contends that the Commonwealth's witnesses 

improperly identified him as the carjacker due to an unduly 

suggestive identification process. Boone argues that several 

weeks after the carjacking, a friend of the victims mailed them a 

picture of him from a local newspaper and that because they had 

seen the picture, they were able to identify him from the 

photograph when he entered the courtroom for his preliminary 

hearing. 

 To determine the reliability of a victim's eyewitness 

identification and to evaluate the likelihood of 

misidentification due to any suggestive factor, a trial court 

shall consider 

 the opportunity of the witness to view the 

criminal at the time of the crime, the 

witness' degree of attention, the accuracy of 

the witness' prior description of the 

criminal, the level of certainty demonstrated 

by the witness at the confrontation, and the 

length of time between the crime and the 

confrontation. 

Townes v. Commonwealth, 234 Va. 307, 331, 362 S.E.2d 650, 663 

(1987), cert. denied, 485 U.S. 971 (1988). In this case, the 
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area where the crime was committed was well-lit; the assailant 

was within five feet of Cynthia Mesic at the time of the 

carjacking; and her attention was focused entirely on the 

assailant during the attack because he was holding her daughter. 

 Both victims, Casey Mesic and Cynthia Mesic, positively 

identified Boone at trial as the carjacker. The description of 

her assailant that Cynthia Mesic gave to police was nearly 

identical to the actual physical characteristics of Sean Boone. 

The victims' identifications are reliable. 

 We, therefore, affirm. 

Affirmed.