COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Elder and Annunziata 

Argued at Chesapeake, Virginia 

ROBERT THOMAS HOYT 

 OPINION BY 

v. Record No. 3042-03-1 JUDGE ROSEMARIE ANNUNZIATA 

 DECEMBER 7, 2004 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS 

Randolph T. West, Judge 

 Charles E. Haden for appellant. 

 Robert H. Anderson, III, Senior Assistant Attorney General (Jerry W. 

Kilgore, Attorney General, on brief), for appellee. 

 Robert Thomas Hoyt appeals his conviction under Code § 18.2-47(A) for abduction. He 

contends his conviction should be reversed because the abduction was incidental to his 

commission of robbery. For the following reasons, we reverse and dismiss the abduction 

conviction and the related conviction for using a firearm in the commission of a felony.1

I. Background 

 In accord with our usual standard of review, we review the evidence and all reasonable 

inferences flowing from the evidence in a light most favorable to the Commonwealth as the party 

 1

 Hoyt preserved his challenge to the firearm charge as required by Rule 5A:18. He 

placed the firearm charge before this Court for resolution on appeal in keeping with Rule 5A:12 

by including the docket numbers for all convictions, including the subject firearm charge, in his 

notice of appeal; challenging the trial court’s ruling denying the motion to strike the abduction 

charge; and asking this Court to “reverse the judgment of the trial court below.” Thus, the 

validity of the firearm conviction based on the abduction is properly before us on appeal. 

Because the firearm conviction depends on the abduction conviction for its validity, our reversal 

and dismissal of the abduction conviction compels the concomitant reversal and dismissal of the 

related firearm conviction. 
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prevailing below. Garcia v. Commonwealth, 40 Va. App. 184, 189, 578 S.E.2d 97, 99 (2003). 

So viewed, the evidence establishes that Hoyt entered a Newport News gas station store at 

11:00 p.m. on October 10, 2001 with the intent to rob it. When Hoyt entered the store, 

employees Marquelle Riddick and Minesh Patel were “getting ready to close” the store for the 

night. 

Hoyt directed Patel to “lay on the floor.” He then pointed a gun at Riddick and told him 

to “give me the money.” Riddick walked approximately ten feet to the cash register, opened the 

drawer, placed the money in a bag, and handed the bag to Hoyt. Hoyt then exited the store. The 

robbery lasted no more than five minutes. 

 Hoyt was charged with abduction in violation of Code § 18.2-47(A),2

 wearing a mask in 

public in violation of Code § 18.2-422, two counts of robbery in violation of Code § 18.2-58, and 

three counts of use of a firearm during the commission of a felony in violation of Code 

§ 18.2-53.1. Hoyt moved to strike the abduction and related firearm charge at the close of the 

Commonwealth’s case. The trial court denied the motion to strike. Hoyt renewed his motion to 

strike the abduction and related firearm charge at the end of the trial, but the trial court again 

denied the motion, stating 

That’s the only question this Court had in the evidence in this case, 

whether or not there was sufficient deprivation of the victims’ 

liberty to distinguish it from simple robbery with abduction being a 

part of it or carrying it a little further and I’m in agreement with the 

Commonwealth that once you use a weapon in moving people 

about, moving them on the floor, to the register, you deprive them 

of their freedom and I think that’s now no longer simple robbery, 

its abduction along with it. 

Hoyt was subsequently convicted on all counts and noted this appeal. We granted his appeal only 

on the issue of the validity of the evidence to prove the abduction was not incidental to his 

commission of robbery. 

 2

 The indictment alleged that Hoyt abducted Riddick. No mention was made of Patel. 
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II. Analysis 

 Code § 18.2-47(A), which criminalizes abduction or kidnapping, provides: 

Any person, who, by force, intimidation or deception, and without 

legal justification or excuse, seizes, takes, transports, detains or 

secretes the person of another, with the intent to deprive such other 

person of his personal liberty or to withhold or conceal him from 

any person, authority or institution lawfully entitled to his charge, 

shall be deemed guilty of “abduction”; but the provisions of this 

section shall not apply to any law-enforcement officer in the 

performance of his duty. The terms “abduction” and “kidnapping” 

shall be synonymous in this Code. Abduction for which no 

punishment is otherwise prescribed shall be punished as a Class 5 

felony. 

In Scott v. Commonwealth, 228 Va. 519, 323 S.E.2d 572 (1984), the Supreme Court of Virginia 

stated that an abduction generally inheres in a rape or robbery because “there is usually some 

detention, and often a seizure, of the victim.” Id. at 526, 323 S.E.2d at 576. However, it 

declined to address the “constitutional problems . . . created by such an overlapping of crimes” 

because that precise issue was not before it. Id. 

 The “constitutional problem” was squarely presented to the Supreme Court in Brown v. 

Commonwealth, 230 Va. 310, 337 S.E.2d 711 (1986), where Brown argued that the Double 

Jeopardy Clause prohibited his convictions for rape and abduction. Id. at 311, 337 S.E.2d at 712. 

In addressing Brown’s argument, the Supreme Court determined that discussion of double 

jeopardy principles was unnecessary because 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.” Id. at 314, 337 S.E.2d at 713.3

 Accordingly, the 

Court held that 

 3

 In light of the determination in Brown that the legislature did not intend to make 

abduction punishable as a separate offense when the abduction was merely incidental to another 

crime, the Commonwealth’s argument that we must consider the two offenses in the abstract, see

Whalen v. United States, 445 U.S. 684, 694 n.8 (1980), to resolve the question before us is 

unavailing. See Brown, 239 Va. at 313, 337 S.E.2d at 713 (“We do not agree that resolution of 
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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 not merely incidental to, 

the restraint employed in the commission of the other crime. 

Id. at 314, 337 S.E.2d at 713-14 (citing Iowa v. Folck, 325 N.W.2d 368 (Iowa 1982); Bass v. 

State, 380 So. 2d 1181 (Fla. Dist. Ct. App. 1980)). 

 A majority of other courts have reached a similar conclusion and have articulated the 

general policy considerations underlying it. For example, the Supreme Court of Maryland—

which noted that “a majority of courts . . . now hold that ‘kidnapping statutes do not apply to 

unlawful confinements or movements incidental to the commission of other felonies’”— 

recognized that a literal reading of abduction and kidnapping statutes would “overrun other 

crimes, such as robbery, rape, and assault.” State v. Stouffer, 721 A.2d 207, 212 (Md. 1998) 

(quoting Frank J. Wozniak, Annotation, Seizure or Detention for Purpose of Committing Rape, 

Robbery, or Other Offense as Constituting Separate Crime of Kidnapping, 39 A.L.R.5th 283, 

356 (1996)) (other internal quotations omitted). 

The rationale of [the majority] approach is the concern that a literal 

reading of the kidnapping statutes, which often carry significant 

penalties, can lead to an overzealous enforcement, with the result 

that “persons who have committed such substantive crimes as 

robbery or assault—which inherently involve the temporary 

detention or seizure of the victim—will suffer the far greater 

penalties prescribed by the kidnapping statutes.” 

Id. (quoting Government of Virgin Islands v. Berry, 604 F.2d 221, 226 (3d. Cir. 1979)). 

________________________ 

the question is controlled by the Blockburger test. The Supreme Court has decided that this test 

need not be applied when the intent of the legislature can be gleaned from a reading of the 

relevant statutes.” (citing Garrett v. United States, 471 U.S. 773, 776 (1985); Missouri v. Hunter, 

459 U.S. 359, 368 (1983); Albernaz v. United States, 450 U.S. 333, 340 (1981); Whalen, 445 

U.S. at 691-92 (1980))). 
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Notwithstanding the general consensus that kidnapping and abduction statutes do not 

apply where the kidnapping or abduction is merely an incident of another crime, no single test 

has been established to determine the factual circumstances that will render an abduction or 

kidnapping incidental. Although “[t]here are literally hundreds of reported decisions from 

around the country dealing with whether, and under what circumstances, the detention, 

confinement, or asportation of a victim initially accosted for the purpose of robbery, sexual 

assault or some other crime will suffice to sustain a separate conviction for kidnapping,” State v. 

Goodhue, 833 A.2d 861, 865 (Vt. 2003), few of those decisions summarize the circumstances 

courts should consider in such cases. 

Berry, a case from the Third Circuit Court of Appeals, represents one of the few 

decisions to harmonize the case law into a single, multi-factorial test. There, the court stated that 

“four factors are central to” determining whether or not an abduction or kidnapping is incidental 

to another crime. Berry, 604 F.2d at 227. 

Those factors are: (1) the duration of the detention or asportation; 

(2) whether the detention or asportation occurred during the 

commission of a separate offense; (3) whether the detention or 

asportation which occurred is inherent in the separate offense; and 

(4) whether the asportation or detention created a significant 

danger to the victim independent of that posed by the separate 

offense. 

Id.; see also United States v. Howard, 918 F.2d 1529, 1536 (11th Cir. 1990) (adopting the Berry

analysis); People v. Smith, 414 N.E.2d 1117, 1122 (Ill. 1980) (same); cf. Stouffer, 721 A.2d at 

215 (declining to adopt any specific test, but nonetheless applying the factors delineated in 

Berry); State v. Farmer, 445 S.E.2d 759, 764 (W. Va. 1994) (stating that it is appropriate to 

examine certain factors substantially similar to those delineated in Berry). 

The Berry analysis states in summary fashion the factors Virginia courts have employed 

on a case-by-case basis in determining whether an abduction is incidental to another crime. See, 
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e.g., Powell v. Commonwealth, 261 Va. 512, 541, 552 S.E.2d 344, 360-61 (2001) (upholding 

conviction for abduction as more than necessary to accomplish rape where the defendant ordered 

victim to go to a more secluded part of the home and bound and detained her for a lengthy period 

of time); Cardwell v. Commonwealth, 248 Va. 501, 511, 450 S.E.2d 146, 153 (1994) (upholding 

conviction for abduction because it was “greater than the restraint intrinsic in a robbery” where 

defendant transported victim away from the robbery scene, which robbery was already complete, 

and murdered him); Hoke v. Commonwealth, 237 Va. 303, 311, 377 S.E.2d 595, 600 (1989) 

(upholding conviction for abduction because it was not inherent in the other crimes of rape and 

robbery where victim’s hands were tightly bound, mouth was gagged, and detention was for 

lengthy period of time); Brown, 230 Va. at 314, 337 S.E.2d at 714 (upholding conviction where 

abduction, which was initial offense, “was remote in terms of time and distance from the sexual 

assault and, in terms of quality and quantity, the acts of force and intimidation employed in the 

abduction were separate and apart from the restraint inherent in the commission of the rape”); 

Bell v. Commonwealth, 22 Va. App. 93, 96-98, 468 S.E.2d 114, 116 (1996) (upholding 

conviction for abduction because jury could have found that it was “separate and apart from the 

restraint inherent in either the sexual assault or the robbery” or that it was for the purpose of 

avoiding detection where, once robbery was completed, the victim was pulled to one side of the 

car, made to lie down, and sexually assaulted); Phoung v. Commonwealth, 15 Va. App. 457, 

462, 424 S.E.2d 712, 715 (1992) (abduction upheld because it involved restraint greater than that 

“inherent in the act of robbery” where defendant bound one victim and transported him from a 

lower level of the house to an upper level and tied another victim to a bed and covered her with a 

blanket); Coram v. Commonwealth, 3 Va. App. 623, 626, 352 S.E.2d 532, 534 (1987) 

(upholding conviction for abduction because it “substantially increased the risk of harm to the 

victim” where victim dragged twenty feet to a secluded area). 
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Applying the factors developed by Virginia case law to the facts here, we conclude that 

the abduction of Riddick was merely incidental to the robbery of the store.4

First, the duration of the detention and the distance of asportation were slight. Testimony 

established that the robbery lasted no more than five minutes and that Riddick was forced to 

walk only ten feet to the cash register. Cf. Cardwell, 248 Va. at 511, 450 S.E.2d at 153; Hoke, 

237 Va. at 311, 377 S.E.2d at 600; Brown, 230 Va. at 314, 337 S.E.2d at 714. 

Second, the detention and asportation of Riddick occurred during the commission of the 

separate offense of robbery, but, as discussed next, they were not acts separate and apart from the 

robbery itself. Cf. Bell, 22 Va. App. at 96-98, 468 S.E.2d at 116. 

 Third, the detention and asportation of Riddick was inherent in the robbery. Hoyt 

detained Riddick for a few moments by threatening him with a gun and forced him to move ten 

feet to the cash register. In detaining and forcing Riddick to move, Hoyt did no more than was 

necessary to accomplish the robbery. Cf. Powell, 261 Va. at 541, 552 S.E.2d at 360-61; Hoke, 

237 Va. at 311, 377 S.E.2d at 600; Brown, 230 Va. at 314, 337 S.E.2d at 714; Phoung, 15 

Va. App. at 462, 424 S.E.2d at 715. 

 Fourth, the detention and asportation here did not pose a danger to Riddick independent 

of and significantly greater than that posed by the robbery itself. Cf. Coram, 3 Va. App. at 626, 

352 S.E.2d at 534. 

 4

 Whether an abduction is merely incidental to another crime is a question of law. 

However, because no two crimes are exactly alike, determining whether an abduction is 

incidental necessarily requires consideration of the historical facts of each case. We defer to the 

trial court’s findings of historical fact, but we review de novo the trial court’s application of 

those facts to the law. Cf. McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259, 

261 (1997) (en banc) (discussing the standard of review applied in search and seizure cases). 
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 Finally, the evidence does not support an inference that Hoyt detained and moved 

Riddick in order to avoid the detection of the robbery. Cf. Bell, 22 Va. App. at 96-98, 468 

S.E.2d at 116; Coram, 3 Va. App. at 626, 352 S.E.2d at 534. 

 Accordingly, we hold that the abduction of Riddick was incidental to the robbery of the 

gas station store and that the trial court erred in denying Hoyt’s motion to strike the abduction 

and related firearm charge. We reverse his convictions for abduction and the related use of a 

firearm in the commission of a felony and dismiss the indictments. 

 Reversed and dismissed.