COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Annunziata and Senior Judge Cole 

Argued at Richmond, Virginia 

KALVIN DONNELL COWARD, S/K/A 

 KELVIN DONNELL COWARD 

v. Record No. 2631-94-2 MEMORANDUM OPINION* BY 

 JUDGE MARVIN F. COLE 

 COMMONWEALTH OF VIRGINIA APRIL 2, 1996 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

Buford M. Parsons, Jr., Judge 

 Thomas P. Collins (Eck, Collins & 

Marstiller, on brief), for appellant. 

 Eugene Murphy, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, 

on brief), for appellee. 

 The appellant, Kelvin Donnell Coward, was convicted by a 

jury of robbery, abduction for pecuniary benefit, and two firearm 

charges. On appeal he raises two issues: (1) whether the trial 

court erred in refusing to grant appellant's motion to strike the 

convictions for abduction for pecuniary benefit and the related 

firearm charge, and (2) whether the trial court erred in denying 

his motion to set aside the convictions as contrary to the law 

and evidence. 

 The appellant contends that there was insufficient evidence 

of an abduction separate and apart from the robbery to support 

the abduction and the related firearm charge, and that the 

 

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

designated for publication. 
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evidence was insufficient to identify him as the perpetrator. 

 I. Facts 

 Jeffrey Henry was the restaurant manager at Picadilly's 

Cafeteria when appellant rang the bell at the rear door where 

employees enter. Appellant wore clothes similar to those "the 

baker normally wore," and, when Henry "looked through the peep 

hole [appellant] had his back to [Henry]." Henry opened the 

locked door, and appellant pointed a gun at him. Appellant "told 

[Henry] to back up and get into the store, and he told [him] that 

he wanted the money, my money and the store's money or he would 

shoot me." "[A] few feet into the store [appellant] hit [Henry] 

in the side of the face with his fist." "[He] put the gun to 

[Henry's] head and told [him] he was going to blow [his] brains 

out if [Henry] didn't take [him] to the office and give him the 

money." Appellant made this threat three times as he grasped 

Henry's shirt and "pulled" him approximately seventy-five feet 

from the back door, down a hallway, through the kitchen, through 

an employee's dining area, and into the office. 

 During Henry's testimony, the prosecutor asked whether Henry 

gave appellant any of his personal money. Henry stated, "Right 

inside the door, when he started demanding the money for [sic] 

the office, he demanded my money and that was on my person, 

also." Henry recalled giving appellant twelve dollars. 

 In the office, appellant put the gun to Henry's head and 

forced him to open the safe. After taking the money, appellant 
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put Henry into a chair in the office, told him "to sit there and 

be quiet or he was going to shoot" him. Appellant fled. Henry 

unequivocally identified appellant as the robber. He stated that 

he was familiar with appellant, who had previously worked at the 

restaurant for about six months. 

 Shirley Smith, a restaurant employee, testified that, the 

night before the robbery, appellant met her at the restaurant 

near the end of her shift and asked her for a ride. Smith was a 

friend of appellant's girlfriend. During the ride, appellant 

told Smith that "he had been thinking about robbing [the 

restaurant]." 

 At trial, appellant moved to strike the abduction charge and 

the related use of a firearm charge. The trial judge found "two 

separate acts." The trial judge ruled that the abduction 

occurred "at the door," and taking Henry "into a different place 

where he robs him, that's the robbery." 

 II. Discussion 

 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). 

 Code § 18.2-47 defines abduction and provides, in pertinent 
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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 Virginia Supreme Court held that "in the enactment of 

the abduction statutes 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." 

Id. 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." Id. at 314, 337 S.E.2d at 714. 

 Therefore, the question before us is whether the detention 

of the victim in this case was "separate and apart" from or 

"merely incidental to the robbery." The indictment charged that 

appellant "did rob Jeffrey Henry of United States currency." The 

jury found appellant "guilty of the crime of robbery as charged 

in the indictment." Appellant put the gun to Henry's head and 

told him to back up and get into the store, where he personally 

robbed Henry of twelve dollars. Clearly, this evidence supports 

the robbery conviction. 

 Appellant then told Henry he was "going to blow [his] brains 
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out if [Henry] didn't take [him] to the office and give him the 

money." The appellant grasped Henry's shirt and pulled him 

seventy-five feet from the back door, down a hallway, through the 

kitchen, through an employee's dining area, and into the office. 

 We find that these acts were not acts inherent in or necessary 

to the restraint required for the robbery, but, rather, they 

constitute acts separate and apart from the robbery. 

 The appellant contends that the identification evidence was 

insufficient to prove that he was the perpetrator of the offenses 

beyond a reasonable doubt. Therefore, he argues that the trial 

court should have granted his motion to set aside the jury 

verdicts as contrary to the law and evidence. The record fully 

supports the fact finder's determination that the appellant was 

the perpetrator of the offenses with which he was charged. Henry 

worked with appellant for six months and positively identified 

him as the robber. The night before the crimes, the appellant 

further told an acquaintance that he was considering committing 

the robbery. The jury chose to believe this evidence and it was 

sufficient to support the convictions. 

 For the foregoing reasons, we find that the trial court did 

not err in refusing to strike the appellant's evidence and did 

not err in refusing to grant the motion to set aside the verdicts 

as being contrary to the law and evidence. Therefore, we affirm 

the convictions. 

 Affirmed.