COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Bray and Annunziata 

Argued at Norfolk, Virginia 

KENNETH WAYNE LONG 

 MEMORANDUM OPINION* BY 

v. Record No. 0399-95-1 JUDGE LARRY G. ELDER 

 DECEMBER 5, 1995 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

A. Bonwill Shockley, Judge 

 Curtis T. Brown (Law Office of Curtis Brown, on 

 brief), for appellant. 

 Marla Lynn Graff Decker, Assistant Attorney General 

 (James S. Gilmore, III, Attorney General, on brief), 

 for appellee. 

 Kenneth Wayne Long (appellant) appeals his convictions for 

cruelty and injuries to children in violation of Code § 40.1-103 

and abduction in violation of Code § 18.2-47. Appellant asserts 

his convictions violated the double jeopardy bar of multiple 

punishments for the same offense. We disagree and affirm the 

convictions for the following reasons.1

 

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

designated for publication. 

 1Appellant's ex-girlfriend, Mercedes Christina Russell (the 

mother of the child), was convicted of identical charges in a 

separate trial. Ms. Russell appealed her convictions to the 

Court of Appeals, also arguing double jeopardy barred her 

convictions for both offenses. Another panel of this Court heard 

Ms. Russell's case. That panel affirmed Ms. Russell's 

convictions, holding the two charges were separate offenses, each 

requiring proof of additional facts to satisfy separate elements. 

Russell v. Commonwealth, Case No. 1435-94-1 (October 10, 

1995)(memorandum opinion). 
 2 

 Appellant lived with his girlfriend, Mercedes Russell and 

Russell's daughter, four year old Melanie, from before September 

1993 to January 1994. As a means of disciplining Melanie, 

appellant constructed a device known as "the box" in the 

apartment's master bedroom linen closet. The box was formed with 

the aid of a wooden panel that slid up and down the frame of the 

closet door, which allowed appellant to restrain Melanie within 

the device without allowing her to escape. Appellant and/or 

Mercedes Russell placed Melanie in the box on various occasions 

for anywhere between five minutes and one hour. As another form 

of punishment, appellant and/or Mercedes Russell forced Melanie 

to stand in the corner of the master bedroom. 

 In a bench trial before the Honorable A. Bonwill Shockley, 

Circuit Court of the City of Virginia Beach, appellant was 

convicted of cruelty and injuries to children and abduction. 

During the trial, appellant made appropriate motions to strike 

the evidence, arguing the Commonwealth failed to prove facts 

necessary to support the two separate charges. The trial court 

overruled the motions, reasoning that: 

 In the abduction count I believe we could look at 

depriving a person of personal liberty, and in the 

neglect count we can look at a whole list of things 

where it says or "cruelly treated"; and I think that if 

we took the same set of facts that we had--irregardless 

of whether it was a child or an adult--if somebody put 

an adult in a box the relative size of the box that 

that child was put in under those conditions, nobody 

would think twice about it being cruel or about that 

person being contained. 
 3 

 Appellant was convicted of two separate statutory 

violations. 

 Code § 40.1-103, Cruelty and injuries to children, states: 

 It shall be unlawful for any person employing or 

having the custody of any child willfully or 

negligently to cause or permit the life of such child 

to be endangered or the health of such child to be 

injured, or willfully or negligently to cause or permit 

such child to be placed in a situation that its life, 

health or morals may be endangered, or to cause or 

permit such child to be overworked, tortured, 

tormented, mutilated, or cruelly treated. 

 Code § 18.2-47, Abduction, states: 

 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 from him any person, authority or institution 

lawfully entitled to his charge, shall be deemed guilty 

of "abduction[.]" 

Appellant argues the double jeopardy doctrine bars his 

convictions for both offenses because each conviction relied on 

an identical element, namely the act of placing Melanie in the 

box. 

 In his constitutional argument, [appellant] 

focuses upon the provision that no person "shall . . . 

for the same offense . . . be twice put in jeopardy of 

life or limb." U.S. Const., amend. V. [Appellant] 

reiterates his view concerning the singularity of his 

criminal act and emphasizes the sameness of the 

evidence supporting his convictions. . . . 

 The constitutional provision concerning double 

jeopardy embodies three guarantees: "(1) 'It protects 

against a second prosecution for the same offense after 

acquittal. [(2)] It protects against a second 

prosecution for the same offense after conviction. 

[(3)] And it protects against multiple punishments for 

the same offense.'" Illinois v. Vitale, 447 U.S. 410, 
 4 

415 (1980), quoting North Carolina v. Pearce, 395 U.S. 

711, 717 (1969). Because both . . . convictions 

occurred in a single trial, only the third guarantee, 

viz., that against multiple punishments, is pertinent 

to the resolution of the present appeal. Turner v. 

Commonwealth, 221 Va. 513, 529, 273 S.E.2d 36, 46-47 

(1980)[subsequent history omitted]. 

 In a single-trial setting, "the role of the 

constitutional guarantee is limited to assuring that 

the court does not exceed its legislative authorization 

by imposing multiple punishments for the same offense." 

Brown v. Ohio, 432 U.S. 161, 165 (1977). And, "the 

question whether punishments imposed by a court after a 

defendant's conviction upon criminal charges are 

unconstitutionally multiple cannot be resolved without 

determining what punishments the Legislative Branch has 

authorized." Whalen v. United States, 445 U.S. 684, 

688 (1980). . . . 

 The question resolves itself, therefore, into one 

of legislative intent where the issue is whether "the 

Legislative Branch" has provided that two offenses may 

be punished cumulatively. In divining this intent, the 

test to be applied is "whether each offense requires 

proof of a fact which the other does not." Blockburger 

v. United States, 284 U.S. 299, 304 (1932). And, in 

applying this test, the two offenses are to be examined 

in the abstract, rather than with reference to the 

facts of the particular case under review. Whalen, 445 

U.S at 694 n.8. 

Blythe v. Commonwealth, 222 Va. 722, 725-26, 284 S.E.2d 796, 

797-98 (1981); see also United States v. Dixon, 509 U.S. __, 113 

S. Ct. 2849 (1993), overruling Grady v. Corbin, 495 U.S. 508 

(1990)(reexamining the Blockburger doctrine); Brown v. 

Commonwealth, 230 Va. 313, 314, 337 S.E.2d 711, 713 

(1985)(stating courts must determine whether the legislature 

intended to make each violation a separate offense); Sullivan v. 

Commonwealth, 16 Va. App. 844, 846, 433 S.E.2d 508, 509-10 

(1993)(en banc)(describing the three distinct protections of the 

double jeopardy clause); Phoung v. Commonwealth, 15 Va. App. 457, 
 5 

461 n.1, 424 S.E.2d 712, 714 n.1 (1992)(same). 

 When viewing the two instant charges in the abstract, we 

believe the legislature intended the charges to qualify as two 

separate offenses within the meaning of the Blockburger test. 

See Blythe, 222 Va. at 276, 284 S.E.2d at 796. The conviction of 

cruelty to children required that appellant was the custodian of 

Melanie and that he endangered the life or the health of Melanie 

or did acts that tortured, tormented, beat, or cruelly treated 

Melanie. Code § 40.1-103. The abduction conviction required 

that appellant detained or secreted Melanie with intent to 

deprive her of her personal liberty. Code § 18.2-47. Restraint 

is not required for an offense of cruelty to children and abuse 

is not required for an offense of abduction. 

 Because we find the two statutes require proof of additional 

facts, and they therefore constitute two distinct offenses, the 

double jeopardy clause is not offended. Accordingly, we affirm 

the convictions. 

Affirmed.