COURT OF APPEALS OF VIRGINIA

Present: Judges Frank, Kelsey and Alston Argued at Chesapeake, Virginia

CLARENCE EDWARD GRAY, III MEMORANDUM OPINION * BY v. Record No. 2305-12-1 JUDGE ROBERT P. FRANK MARCH 11, 2014 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH Marc Jacobson, Judge Designate

James O. Broccoletti (Zoby, Broccoletti & Norm ile, P.C., on brief), for appellant. Robert H. Anderson, III, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney Gene ral, on brief), for appellee.

Clarence Edward Gray, III, appellant, was c onvicted of attempted abduction in violation of Code §§ 18.2-26 and 18.2-47, and assault and battery, in violation of Code § 18.2-57. 1 On appeal, he contends the trial cour t erred in finding he had an inte nt to deprive the victim of her personal liberty. He also maintains any attempte d abduction was only incidental to the assault and battery offense. 2 For the reasons stated, we affirm.

BACKGROUND Victim, a twenty-five-year-old woman, wa s in the check-out line of a market on December 17, 2011. She had just moved into her Portsmouth home two to three weeks earlier.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.

1 The assault and battery convicti on is not before this Court.

2 At oral argument, appellant conceded that the assault and battery was concluded before any behavior giving rise to the attempted abduc tion. Because he abandons the assignment of error regarding the incidental detention doc trine, we need not address it on appeal.UNPUBLISHED- 2 - Appellant entered the store and wa lked directly to the counter wh ere victim stood. When a store clerk asked appellant what he wa s doing, he replied that he “was just looking for a pretty young thing such as [victim].” Appellant “got right behind” victim and as ked victim if he could pay for her groceries. Appellant also made a comment as victim was leaving the market, and she told him, “You don’t even know how old I am.” When appellant asked her age, victim replied that she was twenty-five years old. Victim began to walk home between 3: 00 p.m. and 4:00 p.m., when it was still light outside. As she was walking, appe llant “was right behind [her]. [She] didn’t even know that he was right behind [her] until he caught up with [victi m] pretty quickly.” Appellant yelled out to get her attention, and she turned. Victim waited fo r appellant to “catch up” with her, to see what he was going to say. Victim turned and walked aw ay. Appellant then offered to give her a ride home, but she informed him that she lived ne arby and a ride was unnecessary. As victim continued to walk, appellant bloc ked her path, walking backwards in front of her. Appellant again offered victim a ride home, and vi ctim attempted to walk around appellant. Appellant then grabbed victim’s left jacket sleeve. “It was like he was pulling me back in the opposite direction and I yanked away, and that’s when I panicked.” Victim then turned around and telephoned her sister-in-law. Then, a ppellant released victim. Despite telling appellant she would call her family if he did not leave her alone, appellant again offered victim a

ride home. Then, as victim was “proceeding to cross the st reet to get to the othe r block of the street” a block from where she lived, victim heard appell ant’s tires “screeching.” Appellant’s big truck “had blocked me off that way, so that I could not cross the street.” She te stified that the “truck was so big, I really couldn’t walk around it.” Appellant rolled his window down and again asked

victim if she wanted a ride hom e. Victim again refused.- 3 - Victim testified that she was not able to walk away freely. While she stated that nothing prevented her from walking around the vehicle, she explained why she did not do so. If victim had walked in the opposite direction or behind th e truck, she was concerne d that appellant might put the vehicle in reverse and hit her, something sh e “didn’t want to chance . . . .” And, if victim walked in the opposite direction, she would “hav e been away from home, and I’m not familiar with the area, so I really didn’t want to chance it.” Appellant then sped off. The trial court, characterizing appellant as a “persistent defendant,” found that appellant “intended to commit [abduction], certa inly by way of impeding the progr ess of the victim . . . .” The court concluded that appellan t had the intent to deprive vic tim of her personal liberty. In denying appellant’s motion to set aside th e verdict, the trial court further found that appellant was rebuffed from the beginning, the vic tim having no interest in appellant and that appellant pursued victim and impeded her progr ess and her efforts to return home “both physically by himself and through hi s vehicle.” The trial court view ed the incident on the street near the grocery store and the incident with the ve hicle as part of the same process. The trial court concluded appellant had an “intent to impe de and to detain and deny the victim of her personal liberty.” This appeal follows.

ANALYSIS

Standard of Review When considering on appeal the sufficiency of the evidence presented below, we “presume the judgment of the trial court to be correct” and reverse onl y if the trial court’s decision is “plainly wrong or without evid ence to support it.” Davis v. Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002). This means the jury’s verdict cannot be overturned on appeal unless no “‘rational trier of f act’” could have come to the conclusion it did.- 4 - Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) ( en banc ) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Pease v. Commonwealth, 39 Va. App. 342, 355, 573 S.E.2d 272, 278 (2002) ( en banc ) (“We let the decision stand unless we conclude no rational juror could have reached that decision.”), aff’d, 266 Va. 397, 588 S.E.2d 149 (2003). Under this standard, “a reviewing court does not ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ ” Myers v. Commonwealth, 43 Va. App. 113, 118, 596 S.E.2d 536, 538 (2004) (citation omitted and emphasis in original). It asks instead whether “‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” Kelly, 41 Va. App. at 257, 5 84 S.E.2d at 447 (quoting Jackson, 443 U.S. at 319). ‘“This familiar standard gives full play to th e responsibility of the tr ier of fact fairly to resolve conflicts in the testimony, to weigh the ev idence, and to draw reasonable inferences from

basic facts to ultimate facts.’” Id. at 257- 58, 584 S.E.2d at 447 (quoting Jackson, 443 U.S. at 319). Thus, we do not “substitute our judgment for th at of the trier of f act” even if our opinion

were to differ. Wactor v. Commonwea lth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002). Further, a fact finder’s resolution of conflic ting facts, as well as competing inferences, receives “the highest degree of appellate de ference.” Thomas v. Commonwealth, 48 Va. App. 605, 608, 633 S.E.2d 229, 231 (2006). Intent to Deprive Appellant contends the evid ence was insufficient to prove he had intended to deprive victim of her personal liberty. He maintain s the evidence only indicates appellant was a persistent suitor “who was too slow in taking no for an answer.” The evidence, he asserts, would indicate appellant had a ro mantic interest in her.- 5 - Code § 18.2-47(A) states: Any person who, by force, intimidation or deception, and without legal justification 3 or excuse, seizes, takes, transports, detains or secretes another person with the in tent to deprive such other person of his personal liberty or to w ithhold or conceal him from any person, authority or institution lawf ully entitled to his charge, shall be deemed guilty of “abduction.” (Footnoted added). When a “statute makes an offense consist of an act combined with a particular intent, proof of such intent is as necessary as proof of the act itself and must be established as a matter of fact.” Ridley v. Commonwealth, 219 Va. 834, 836, 252 S.E.2d 313, 314 (1979). “Intent is the purpose formed in a person’s mind and may be, and frequently is, shown by circumstance[s]” including “[his] conduct” and “his statemen ts.” Barrett v. Commonwealth, 210 Va. 153, 156, 169 S.E.2d 449, 451 (1969). The specific intent to commit [a crime] may be inferred from the conduct of the accused if such intent flows naturally from the conduct proven. Where the conduct of the accused under the circumstances involved points wi th reasonable certainty to a specific intent to commit [the crime], the intent element is established. Wilson v. Commonwealth, 249 Va. 95, 101, 452 S.E .2d 669, 674 (1995) (citation omitted). “[W]hether the required intent exists is genera lly a question for the trier of fact.” Nobles v. Commonwealth, 218 Va. 548, 551, 238 S.E.2d 808, 810 (1977). A trial judge’s factual finding will not be disturbed on a ppeal unless plainly wrong or wit hout evidence to support it. Smith v. Commonwealth, 17 Va. App. 68, 71, 435 S.E.2d 414, 416 (1993).

3 Appellant does not challenge the force, intimidation or deception and without legal justification elements of the offense.- 6 - “To prove that the defendant intended to depr ive the victim of her personal liberty, the Commonwealth must prove that the defendant intended to deny the victim her freedom from bodily restraint.” Burton v. Commonw ealth, 281 Va. 622, 627, 708 S.E.2d 892, 894 (2011). The facts here clearly show th at appellant detained the vic tim. Appellant initially stood in front of victim blocking her path. He then grabbed her jacket and subsequently positioned his

truck so that she could not walk around it. The question then becomes whether appellant’s conduct indicated his intent to deprive her of he r liberty, or whether a ppellant had some other purpose in detaining victim such as to create a romantic relationship. Here, after considering “the totality of the ev idence, the totality of the circumstances,” the trial court concluded that all of appellant’s actions were part of a “process” and that he had the “intent to impede and to detain and deny the victim of her persona l liberty.” This was a factual determination that we do not disturb on appeal unless we find it to be plainly wrong or without evidence to support it. In the record before this Court, we fi nd evidence to support th at conclusion. In consideration of all of the circumstances, we fi nd appellant’s act of pursu ing victim, obstructing her path, and grabbing her collar, a ll relevant to whether he had th e intent to deprive her of her liberty. It is a fair inference that appellant’s intent to deprive victim of her personal liberty by grabbing her and turning her around was not abandoned when he blocked her path with his truck. From these facts, and the lack of evidence to prove otherwise, the trial court rejected the argument that appellant was nothing more than a persistent suitor. Considering our standard of review, we conclude that the trial court reasonably inferred th at appellant’s actions were

inconsistent with an intent to create a romantic relationship with victim, and were consistent with attempting to abduct her with the purpos e of withholding her personal liberty.- 7 - CONCLUSION

We conclude that the Commonwealth’s eviden ce proved appellant possessed the intent to deprive victim of her personal liberty. Ther efore, appellant’s c onviction is affirmed.

Affirmed.- 8 - Kelsey, J., concurring. I write separately to emphasize two related points. First, the trial court convicted Gray not of abduction, but of attempted abduction. Neither Brown v. Commonwealth, 230 Va. 310, 337 S.E.2d 711 (1985), nor any of the other cases discussing the multiple-punishment doctrine of doubl e jeopardy apply to a charge of attempted abduction. We need not determine whether any detention was an “int rinsic” or “inherent” element of the detention-plus crime, Pryor v. Commonwealth, 48 Va. App. 1, 6, 628 S.E.2d 47, 49 (2006), because attempted abduction is not a detention crime. It is an attempted detention

crime. 4 As a result, we only ask whether Gray comm itted a direct, ineffectual act in furtherance

of an intended detention of the victim. As the majority correctly holds, he did — several actually. The Brown abduction doctr ine has no legal or logical a pplication in this context. Second, even if Brown applied to attempted abductions and even if the only detention Gray committed was intrinsic t o, or inherent in, his assault and battery, Gray would not be entitled to a judicial vacatur of his attempted abduction conviction. Brown applies only when “the guarantee of double jeopardy may be impli cated.” Walker v. Commonwealth, 272 Va. 511, 516, 636 S.E.2d 476, 479 (2006). It is in applicable to a case in which 

### “ we are not concerned with the application of the double jeopardy clau se” because the “constitu tional guarantee is not pertinent to the resolution” of the case. Id. The Brown remedy, when judicially availa ble, tracks the remedy for double jeopardy. The proper remedy for violations of the multiple -punishment doctrine of double jeopardy is the

4 “The only issue when abduction is charged al ongside an offense for which detention is an intrinsic element is whether any detention ex ceeded the minimum necessary to complete the required elements of the other offense. ” Lawlor v. Common wealth, 285 Va. 187, 225, 738 S.E.2d 847, 869 (2013). It is irreleva nt that the detention “was merely useful to perpetrating a detention-plus crime . . . .” Pryor, 48 Va. App. at 6, 628 S.E.2d at 49.- 9 - judicial vacatur of the lesser charge, not th e greater charge. See generally Brown, Tommy v. Commonwealth, 222 Va. 111, 116, 279 S.E.2d 142, 145 (1981); Clayton Motors v. Commonwealth, 14 Va. App. 470, 473, 417 S.E .2d 314, 316 (1992). No double jeopardy precedent authorizes either a trial or an appellate court, in a multiple-punishment context, to vacate the greater charge in favor of the lesser charge. Here, the trial court convicted Gray of atte mpted abduction (a felony) as well as assault and battery (a misdemeanor). Relying on the Brown abduction doctrine, Gray argues that he received two punishments for essen tially the same offense. See A ppellant’s Br. at 18. By his own election, however, Gray foreclosed any judici al review of the issu e by failing to challenge on appeal the assault and battery conviction. Beca use of that decision, we have no authority to provide the only relief requested by Gray: dismissal of the greater , not the lesser, charge. We cannot treat a defendant who app eals his misdemeanor less favorably than a defendant who does not, which is just what would ha ppen if we left an appealing de fendant with a felony conviction while allowing a non-appealing defendant to walk away with only a misdemeanor conviction. No accepted understanding of double jeopardy prin ciples puts the remedy entirely in the hands of the defendant, allowing him to choos e which conviction he wants to deem void. 5 Nor does any other constitutional principle allow a de fendant, by the simple expediency of appealing only one of his two allegedly duplicative convicti ons, to unilaterally dict ate the scope of our

5 For example, a defendant cannot simply pleadguilty to the lesser ch arge, consent to the entry of a conviction order, a nd thereby preclude the continued prosecution of, and imposition of punishment for, the greater offense. Ohio v. Johnson, 467 U.S. 493, 501-02 (1984); see also Rea v. Commonwealth, 14 Va. A pp. 940, 944-45, 421 S.E.2d 464, 467-68 (1992). For similar reasons, a defendant cannot claim the protections of double jeopardy after receiving a “guilty verdict in the first of two succes sive prosecutions, when the defendant had been responsible for insisting that there be separa te rather than consolidated trials.” Johnson, 467 U.S. at 502 (summarizing Jeffers v. United States, 432 U.S. 137 (1977)). A defendant cannot by his own election separate conjoined charges and there by successfully engineer a double jeopardy defense where none would otherwise exist.- 10 - judicial remedies — pa rticularly when doing so gives him a result that he could have never

received in the trial court. The remedial principles applicable to doubl e jeopardy are conceptually embedded in the Brown doctrine. It would be impracticable to su ggest otherwise. If a defendant committed an assault and battery that also i nvolved a detention (for example, a beating that lasted for an uninterrupted five minutes), a Commonwealth’s Attorney would have the prosecutorial discretion to charge the defenda nt with abduction but not assault and battery. The defendant would have no grounds to object. See Wa lker v. Commonwealth, 47 Va. App. 114, 124-25, 622 S.E.2d 282, 287 (2005), aff’d, 272 Va. 511, 516-17, 636 S.E.2d 476, 479 (2006). It would make no sense to say that a prosecution of the same defendant on charges of abduction as well as assault and battery, if it led to convictions on both in violation of Brown, would give a defendant the absolute right to deselect the felony and accept only the misdemeanor. That result would shift the exercise of prosecutorial discretion fr om the prosecutor to the criminal defendant. In sum, the Brown abduction doctrine has no le gal or logical applic ation to a conviction for attempted abduction. And even if it did, Gr ay’s decision to challenge on appeal his felony conviction, but not his misdemean or conviction, was an impermissible effort at securing a judicial remedy for which he ha s no just claim. If for no other reasons but these, Gray’s challenge under Brown to his attemp ted abduction conviction cannot succeed.