COURT OF APPEALS OF VIRGINIA
Present: Judges Pe tty, O’Brien and AtLee Argued at Lexington, Virginia

DONALD KEITH EPPS OPINION BY v. Record No. 0148-15-3 J UDGE MARY GRACE O’BRIEN MAY 31, 2016 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE James J. Reynolds, Judge M. Lee Smallwood, II (Office of the Public Defender, on brief), for appellant. Kathleen B. Martin, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Donald Keith Epps (“appellant”) was indicted for one count of abduct ion, in violation of Code § 18.2-47, and one count of assault an d battery, in violation of Code § 18.2-57. Appellant pled guilty to assault a nd battery and was found guilty of abduction followi ng a bench trial. The court sentenced appellant to fiveyears of incarceration in the st ate penitentiary with two years suspended for abduction and twelve months in jail with si x months suspended for assault and battery. Appellant filed a post-tria l motion to dismiss his convictions on the ground that the court lacked jurisdiction because the or der recording the indictments against him had not been entered at the time of trial. The court denied his motion, an d this appeal followed. I. Material Proceedings The grand jury met on Octobe r 27, 2014, and returned indict ments in open court against appellant for abduction and assault and battery. The indictments were signed by the grand jury foreman. Following a bench trial for abduction, the court found ap pellant guilty and also acceptedPUBLISHED- 2 - his plea of guilty to assault and battery on November 17, 2014. His sent encing hearing occurred on January 5, 2015. On January 7, 2015, appellant’s counsel moved to dismiss the convictions because the order reflecting the actions of the gran d jury on October 27, 2014, had not been entered prior to trial. 1 On January 13, 2015, the court ente red the order memori alizing the grand ju ry’s actions (“the presentment order”). Following a hearing on January 22, 2015, th e court denied appellant’s motion to dismiss his convictions. The court signed the sentencing order on January 23, 2015. II. Assignments of Error Appellant asserts th e following errors: I. The trial court erred in conductin g a trial of Mr. Epps when it lacked the jurisdiction to do so because no order recording the presentation of the indictment in open court had been entered. II. The trial court erred in concluding that the facts were sufficient to convict Mr. Epps of abduction where Mr. Epps entered a guilty plea to assault and ba ttery, all of the condu ct that arguably would support a conviction for abductio n was also conduct that was assaultive, and ther efore there was no of fense of abduction pursuant to the statutory and case law of the offense. III. Facts We consider the facts, as we are bound to do , in the light most favorable to the prevailing party, the Commonwealth. Bolden v. Commonwealth , 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008). So viewed, the evidence established the following: late in the evenin g of August 29, 2014, appellant and Latisha Wi lliams were in a bedroom in her re sidence in Danvi lle. The parties previously had a romantic relationship. Williams testified that a dis pute arose after appella nt accused her of ha ving sex with his sister’s boyfriend. Appellant used Williams’s cell phone to call hi s sister. Williams then asked

1 Appellant did not contest the form or content of the indictments against him.- 3 - appellant to leave, and he became upset, “jumped on” her, and began to strangle her. Williams tried to kick appellant, but he grabbed her foot and tried to bend one of her toes back. He eventually released her foot and bit her finger. Williams testified that after she unsuccessfully attempted to retrieve her cell phone from appellant, she ran from the bedroom and tried to leav e the residence through a door in the kitchen. Appellant pushed her away from th e door, told her he was not goin g to allow her to leave, and began to punch her. Wh en he saw that she was bleeding as a result of his punches, he stopped, called his brother, and left the reside nce. Williams testifie d that the incident in the kitchen lasted for approximately ten minutes. At the close of th e Commonwealth’s case, appe llant made a motion to strike the evidence. The court denied his motion. According to appellant, Willia ms initiated the altercation by kicking him after he accused her of giving him a sexually transmitted disease. He admitted that he repe atedly “shoved” Williams onto the bed, but claimed that sh e bent her own toe back. Appell ant claimed that he left the bedroom first, and only assaul ted Williams after she grabbed him from behind in the hallway leading to the kitchen. He denied that he ever prevented her from leaving. Appellant renewed his motion to strike the evidence at the conclusion of his case. The court denied the motion and found appellant guilty of abduction. IV. Analysis A. Failure to Timely Record Presentation of Indictment Appellant contends that his in dictment for abduction was i nvalid because the presentment order was not signed and entered prior to his trial. 2 “The validity of the indi ctment is a question of

2 Appellant does not expressly restrict the assignment of error to the abduction charge, but as he was tried only for abduction, and pled guilty to the assault and battery charge, we limit our consideration of appellant’s argument to the abduction charge.- 4 - law which we review de novo .” Howard v. Commonw ealth, 63 Va. App. 580, 583, 760 S.E.2d 828, 829 (2014). Code § 19.2-217 provides that “no person sh all be put upon trial fo r any felony, unless an indictment or presentment shall have first been found or made by a grand jury in a court of competent jurisdiction.” Additiona lly, Rule 3A:5(c) of the Supreme Court of Vi rginia directs that “[t]he indictment sha ll be endorsed ‘A True Bill’ or ‘Not a True Bill’ and signed by the foreman. The indictment shall be re turned by the grand jury in open court.” Appellant does not contest that the grand jury returned an indictment against him on October 27, 20 14, and that the indictment was presented in open court prior to trial. He does no t assign error to the cont ent of the indictment, but he asserts that the trial court’s delayed entry of the presentment or der invalidates hi s conviction. Appellant contends that because the order was not entered prio r to trial, the court did not have jurisdiction when it co nducted the bench trial. 3 Appellant relies on Cawood’s Case, 4 Va. (2 Va. Cas.) 527 (182 6), and Simmons v. Commonwealth, 89 Va. 156, 15 S.E. 386 (1892), to support his conten tion that he was not properly indicted by the grand jury and his conviction is therefore void. In Cawood, the defendant’s name was not included on the order that listed the indictments returned by the grand jury on April 26-27, 1824. 4 Va. (2 Va. Cas.) at 5 41-42. The Supreme Court found th at Cawood had not been properly indicted because there was no record that an indictment against him had ever be en returned in open court. Id. at 546. Because the court found it was “essen tial that a record shou ld be made of the [grand jury’s] finding on the Orde r Book,” the defendant’s conviction wa s reversed. Id. at 542, 547.

3 While Code § 19.2-227 provides that “[j]udgme nt in any criminal case shall not be arrested or reversed upon any exception or objecti on made after a verdict to the indictment or other accusation, unless it be so defective as to be in violation of the Constitution,” this statute does not control because appellant’s argument doe s challenge the jurisdiction of the court to conduct the trial.- 5 - Likewise, in Simmons, there was no evidence that the indictment, which had been endorsed by the foreman as a “true b ill,” had ever been presented in court and “the fact reco rded.” Simmons, 89 Va. at 157, 15 S.E. at 387. No valid indictment could be f ound in the Lee Coun ty Record Book. Id. Based on this omissi on, the Supreme Court foundthat “the accused [was] not indicted.” Id. “[T]here is no constitutional requirement that prosecu tions for felony be by indictment. The requirement is merely statutory [and] may be waiv ed.” Livingston v. Co mmonwealth, 184 Va. 830, 836, 36 S.E.2d 561, 564 (1946) (citation omitted ). Code § 17.1-513 prov ides that “[t]he circuit courts shall . . . have original jurisdiction of all indictments for felonies.” Therefore, the requirement that a felony prosecution be initiated pu rsuant to an indictme nt is statutory, not constitutional. Accordingly, appellant’s relianceon Cawood and Simmons is inapposite. In Hanson v. Smyth, 183 Va. 384, 387-89, 32 S.E.2d 142, 143-44 (1944), the defendant challenged his conviction in a habeas corpus proceeding, and alleged that the record did not show that the indictment against him was returned in op en court after the grand jury met. The Supreme Court found that because an indict ment may be waived, it is not ju risdictional. Id. at 390-91, 32 S.E.2d at 144. The Court noted that the current version of Code § 19.2-217 was amended in 1940 to allow a defendant to waive indictme nt and presentment. Id. at 390 , 32 S.E.2d at 14 4. The Court interpreted this amendment as the “clear expression of the legislative policy that the requirement of an indictment in the prosecution for a felony may be waived, and hence is no t jurisdictional.” Id. As a result, the Court held that “the failure of th e record to show affirmatively that the indictment was returned into court by the grand jury is not such a defect as will render null and void the judgment of conviction ba sed thereon.” Id. at 3 90-91, 32 S.E.2d at 144. The validity of an indi ctment is establis hed by the grand jury retu rning a true bill in open court and the subsequent entry and recordation of an order memorializing those events. The Supreme Court has found that a mere procedural error does not nullify an otherwise valid- 6 - indictment. See Reed v. Commonwealth, 281 Va. 471, 478-80, 706 S.E.2d854, 858-59 (2011) (finding indictments valid, despite the lack of a si gnature by a grand jury foreman because the order showed that the i ndictments were retu rned in open court as true bills). In Howard v. Commonwealth, 63 Va. App. 580, 582-83, 760 S.E.2d 828, 829 (2014), the defendant claimed that the trial court lacked ju risdiction over him because the indictme nts were not read aloud when they were returned in court, although they were sign ed by the foreman of the grand jury and an order memorializing those events was subsequently entered by the judge. We held that when indictments are returned in court, “[r]eading th e indictments aloud verbatim is not required for [an] indictment to be valid,” what “is important is that the indictment be ‘presented’ in court.” Id. at 585, 706 S.E.2d at 830. Additionally, Code § 17.1-123(A), which a ddresses the signing and recording of court orders, does not contain a timing requirement. Th e statute does not require that an order must be recorded on the same day as the event it is memorializing to be valid. The Supreme Court has held that [n]o order made by the court or proceeding had in a case during a term and entered by the clerk in the record book should be allowed to become invalid, or to fail of effect, by the omission of the judge, through inadvertence or neglect, to sign the record of the orders and proceedings on the da y on which it was ma de or took place. Weatherman v. Commonwealth, 91 Va. 796, 798, 22 S.E. 349, 350 (1895). In the present case, appellant was properly indicted because th e order entered on January 22, 2015 reflected that the gra nd jury met on October 27, 2014, and returneda true bill in open court on the indictments against appellant. “A court speaks through its orders and those orders are presumed to accurately reflect wh at transpired.” McBrid e v. Commonwealth, 24 Va. App. 30, 35, 480 S.E.2d 126, 128 (1997). Appellant does not assert that the content of the indictment is de ficient in any manner or that the indictment wa s not returned in open court. His sole co ntention is that the- 7 - presentment order had not been entered before he was tried on November 17, 2014. However, because neither the statute, nor the rule, nor the ca se law contain a time requ irement for entry of the order, the timing of the record ing of the order is merely a pr ocedural requirement. Thus, the delayed entry of the order is not a substantive viol ation that invalidates the indictment or deprives the trial court of its juri sdiction over appellant. B. Sufficiency of th e Evidence of Abduction Appellant contends that the ev idence was insufficient to find him guilty of a bduction. He asserts that any detention of the victim was in cidental to the assault and battery and did not constitute a sepa rate offense. 1. Standard of Review When reviewing the sufficiency of the evidenceto support a convictio n, “it is our duty to consider [the evidence] in the light most favorable to the Co mmonwealth and give it all reasonable inferences fairly deduci ble therefrom.” Boykins v. Commonwealth, 210 Va. 309, 311, 170 S.E.2d 771, 773 (1969). The issu e is “whether the record contains evidence from which any ‘rational trier of fact could have found the essential elements of the crime beyond a reasona ble doubt.’” Young v. Commonwealth, 275 Va. 587, 591, 659 S.E.2d 308, 310 (2008) (quoting Jackso n v. Virginia, 443 U.S. 307, 319 (1979)). The tria l court’s judgment “will not be set aside unless it appears from the evidence that the judgment is plainly wrong or without evidence to support it.” Martin v. Commonwealth, 4 Va. App. 438, 44 3, 358 S.E.2d 415, 418 (1987). Additionally, “[w]hether an abduction is merelyincidental to another crime is a question of law. However, because no two crimes are exactly alike, deter mining whether an abduction is incidental necessarily requires c onsideration of the hist orical facts of each case.” Hoyt v. Commonwealth, 44 Va. App. 489, 496 n.4, 605 S.E.2d755, 758 n.4 (2004). Therefore, the trial- 8 - court’s findings of histor ical fact are controlling bu t we review the court’s ap plication of those facts to the law de novo

. Smith v. Commonwealth, 56 Va. App. 711, 721, 697 S.E.2d 14, 19 (2010). 2. Evidence of Abduction Code § 18.2-47(A) provides that “[a]ny person who, by force, intimi dation or deception, and without legal justification or excuse , seizes, takes, transports, detains or secretes another person with the intent to deprive such othe r person of his personal liberty . . . shall be d eemed guilty of ‘abduction.’” The Commonwealth may prove assault and battery under Code § 18.2-57 by establishing a ‘“wil[l]ful or unlawful touching’ of another.” Parish v. Commonwealth, 56 Va. App. 324, 330, 693 S.E.2d315, 318 (2010) (quotin g Wood v. Commonwealth, 149 Va. 401, 404, 140 S.E. 114, 115 (1927)). Appellant asserts that any dete ntion of Williams that occurred was merely incidental to the assault and battery and ca nnot, therefore, be the basis for an abduction conviction. The Virginia Supreme Court has held that one accused of abduction by detent ion and another crime involving restraint of the victim, both growin g out of a continuing course of conduct, is subject upon conviction to separatepenalties for separate offenses only when the detention committed in th e act of abduction is separate and apart from, and not me rely incidental to, the restraint employed in the commission of the other crime. Brown v. Commonwealth, 230 Va. 310, 314, 337 S.E.2d 711, 713-14 (1985). Further, “[t]he only issue when abduction is charged al ongside an offense for which detention is an intrinsic element is whether any detention exceeded th e minimum necessary to complete the require d elements of the other offense.” Lawlor v. Comm onwealth, 285 Va. 187, 225, 738 S.E.2d 847, 869 (2013). The issue becomes whether sufficient evidence exists to support the f actfinder’s determination that a defendant used greater restraint than that necessar y to commit the simultaneously charged offense. See Powell v. Commonwealth, 261 Va. 512, 541, 552 S.E. 2d 344, 360-61 (2001).- 9 - In the present case, the crim e of assault and battery was co ncluded before the abduction occurred. While there is a te mporal connection between the two crimes, they did not occur simultaneously. An assa ult and battery occurred in the bedroom, when appe llant strangled Williams and pushed her back on the bed. He continued to batter her by bend ing her toe and biting her finger. At that point, the assault and battery was a co mpleted crime. The trial court, as fi nder of fact, believed W illiams when she testified that she fled down the hallway and was pursued by appellant. We have reco gnized that “[t] he credibility of the witnesses and the weight accorded the eviden ce are matters solely fo r the fact finder w ho has the opportunity to see and hear that evidence as it is presen ted.” Sandoval v. Commonw ealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 73 2 (1995); see also Rogers v. Comm onwealth, 183 Va. 19 0, 201-02, 31 S.E.2d 576, 580 (19 44). Once Williams was in the kitchen, appellant obstructed her access to the door that led outside and would no t allow her to leave the residence. Clearly, this detention was separate and apart from the assault and battery that ha d occurred in the bedroom. Williams testified that the pa rties were in the kitchen for ap proximately ten minutes. During that time, as she was trying to ge t to the door, appellant blocked her exit and hit her in the mouth. Further, he specifically to ld Williams that he was not going to allow her to leave. That statement illustrates appellant’s intent to detain Williams. Blocking the kitc hen door and detaining Williams was not necessary to complete the crime of assa ult and battery that had occurred earlier in the bedroom. The abducti on occurred subs equent to appellant’ s pursuit of Williams down the hall, as she attempted to flee fr om him after he initially assaulted her. These we re two distinct crimes, committed at differe nt times, even comm itted in different r ooms of the house. We find that the court did not err in convicting appellant of both assault and batt ery and abduction.- 10 - V. CONCLUSION For the foregoing reasons, the decisi on of the trial court is affirmed. Affirmed.