COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, Alston and Russell Argued by teleconference

ALEXANDER EARL BILLOW, S/K/A ALEXANDER EARL BARLOW MEMORANDUM OPINION  BY v. Record No. 1199-16-3 J UDGE ROSSIE D. ALSTON, JR. AUGUST 22, 2017 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE Charles N. Dorsey, Judge J. Thomas Love, Jr., Senior Assi stant Public Defender, for appellant. Leah A. Darron, Senior Assistan t Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Alexander Earl Billow (“appell ant”) appeals his conviction of a bduction with intent to defile, in violation of Code § 18.2- 48. Appellant argues that the trial court erred by finding him guilty of abduction with intent to defile because the evidence presented did not establish the requisite intent to deprive th e victim of her liberty. We disa gree, and affirm the decision of the trial court.
B ACKGROUND On the morning of August 9, 2015, the vi ctim (hereinafter, “K.V .”) was out on a run when she noticed a man, later id entified as appellant, standing on the right side of the path in front of her. At appellant’s April 7, 2016, bench trial, K.V. testified that as sh e ran by appellant, she noticed that he “had his pe nis out of his pants and [he] wa s masturbating.” K.V. crossed to

 Pursuant to Code § 17.1-413, this op inion is not designated for publication.UNPUBLISHED- 2 - the opposite side of the path to a void appellant. However, as she ran by him, appellant lunged at her, and “kind of body slammed” he r. K.V. began screaming and yelling for help. She stated that appellant then wrappe d his arms around her, and put his ha nd inside of her bra, groping her breast. At this point, K.V. testif ied that she could not get f ree from appellant, and was just trying to stay on the path to avoid appe llant pulling her off toward a n overgrown embankment, leading down to a river. She specificall y testified: “my, my arms had gotten stuck between us. And, and I couldn’t, I couldn’t get fr ee. I, I feel like I mostly h eld my ground that, that I didn’t go off the greenway but I could n’t get free of him.” K.V. stated that appellant suddenly stopped, pushed her away, a nd took off running. It was then that K.V. noticed a cyc list coming toward her, and she used her phone to call 911. K.V.’s chest had scratches as a result of the encounter. K.V. testified: “I reme mber feeling very pinned in and that if I, that I wanted to get my hands free so that I could try to push myself free.” After the close of the Commonw ealth’s case-in-chief, appellant moved to strike the evidence. Appellant argued that the Commonwealth had not showe d the specific intent necessary to prove that appella nt deprived K.V. of her liberty and that the General Assembly did not intend to make abduction a sep arate crime when the detentio n was only incidental to the underlying crime. Appellant further argued that appellant mere ly committed a sexual assault and that any detention occurred simu ltaneously. The trial court de nied appellant’s motion. It found that given the facts presente d, a reasonable inference could be drawn by the fact-finder that appellant made an effort to pull, push, or move the victim to a nother location. T his showed appellant’s intent to depriv e K.V. of her liberty. Appellant did not present any evi dence and renewed his motion t o strike at the end of the trial. The trial court took t he motion under advisement, and a hearing took place on April 17, 2016. The trial court again denie d appellant’s motion. It fou nd K.V. to be a very credible- 3 - witness, and concluded that it was significant that K.V. was jo gging at the time of the attack because appellant stopped her movement. The trial court also f ound the degree of force used by appellant was significant whe n he body slammed K.V., made an ef fort to remove her sports bra, groped her breast, and tried to pul l her toward the river. The trial court concluded that those facts distinguish this case from previous cases and support app ellant’s conviction. The trial court noted that it thought the detenti on clearly created a significa nt danger to K.V. independent of that posed by the groping or sexual assa ult. It found that the Comm onwealth proved the elements of abduction with intent to def ile beyond a reasonable doubt. The trial court ultimately found appellant guilty of abduction with intent to defile. On August 16, 2016, it entered an order, s entencing appellant to l ife in prison, and suspended the life sentence contingent upon appellan t serving twenty years. This appeal followed.
A

NALYSIS Appellant argues that the tri al court erred by finding him guil ty of abduction with intent to defile because the evidence presented did not establish that appellant intended to deprive K.V. of her liberty. We disagree. When considering the sufficien cy of the evidence on appeal in a criminal case, this Court views the evidence “in the light most favorable to the Commonwe alth and give[s] it all reasonable inferences fairly de ducible therefrom.” Higginbotha m v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). On review, this Court do es not substitute its own judgment for that of the trier of fact. Cable v. Commonwealth, 243 Va. 236, 239, 415 S.E.2d 218, 220 (1992). The trial court’s ju dgment will not be set as ide unless it appears that the judgment is plainly wrong or w ithout evidence to support it. S ee Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). “There is no di stinction in the law between the weight or value to be given to eit her direct or circumstantial evidence.” Muhammad v.- 4 - Commonwealth, 269 Va. 451, 479, 619 S.E.2d 16, 31-32 (2005). T he Supreme Court of Virginia has held that “circumsta ntial evidence is competent an d is entitled to as much weight as direct evidence[,] provided that the circumstantial evidence is sufficiently convincing to exclude every reasonable hypothesis except that of guilt.” Finney v. C ommonwealth, 277 Va. 83, 89, 671 S.E.2d 169, 173 (2009) (quoting Dowden v. Commonwealth, 260 Va. 459, 468, 536 S.E.2d 437, 441 (2000)). “The statement that circumstantial evidence must exclude every reasonable theory of innocence is simply a nother way of stating that the C ommonwealth has the burden of proof beyond a reasonable doubt .” Commonwealth v. Hudson, 265 Va. 505, 513, 578 S.E.2d 781, 785 (2003). Appellant argues that the eviden ce presented was insufficient t o prove that he abducted K.V. because he did not intend t o deny K.V. of her liberty. A person is guilty of abduction under Code § 18.2-47(A) if, “by force , intimidation or deception, and without legal justification or excuse, [he or she] seizes, takes , transports, de tains or secre tes another person with the intent to deprive such other perso n of his personal liberty.” “The question of [appellant’s] intent must be determined from the outward manifestation of his actions leadin g to usual and natural results, under the peculiar facts and cir cumstances disclosed. This det ermination presents a factual question which lies peculiarly w ithin the province of the [fact finder].” Ingram v. Commonwealth, 192 Va. 794, 801-02, 66 S.E.2d 846, 849 (1951). In order for the Commonwealth to prove appellant is guilty of abduction with int ent to defile “the evidence must show that [appellant] abducted [th e victim] with t he intent to sexually molest her.” Crawford v. Commonwealth, 281 Va. 84, 102-03, 704 S.E.2d 107, 118 (2011); s ee also Swisher v. Commonwealth, 256 Va. 471, 486, 506 S.E.2d 763, 771 (1998) (hol ding that the terms “sexually molest” and “defile” are interc hangeable). The term “sexually molest” includes the intentional touching of the complaining witness’ intimate parts or material directly covering such intimate- 5 - parts, meaning the genitalia, anus, groin, breast, or buttocks. See Code § 18.2-67.10. In this case, appellant does not contest th e proof that there was a sex ual assault. Rather, appellant challenges the Commonwealth’s proof of the abduction component of the statute. 1 In this case, the evidence pres ented by the Commonwealth showe d that on August 9, 2015, K.V. was out for a run, when a ppellant lunged at her from the side of the path and body slammed her. He then wrapped his arms around her, put his hand under her shirt, groped her breast, and tried to pull her o ff the path she was running on. In Scott v. Commonwealth, 228 Va. 519, 526, 323 S.E.2d 572, 576 (1984), the Supreme Court of Virginia found that statutory abduction, pursuant to Code § 18.2- 47, is complete upon “the ph ysical detention of a person, with the intent to deprive [h er] of [her] pe rsonal liberty, by force.” Significantly in this case, K.V. testified: “my arms ha d gotten stuck between us. And, an d I couldn’t, I couldn’t get free. I, I feel like I mostly held my ground that, that I didn’t go o ff the greenway but I couldn’t get free of him.” She also stated that she could not continue runn ing and was stuck in one place. This evidence constitutes a physical detention because appellan t used force to prevent K.V. from continuing her run. Appellant a lso wrapped his arms around her , and K.V. testified that she

1 Appellant relies in part on the incidental detention doctrine to argue that the trial court should not have convicted him of abduction with the intent to d efile. The incidental detention doctrine states that one accused of abduction by detention and another crime involvi ng restraint of the victim, both gr owing out of a continuing cours e of conduct, is subject upon convicti on to separate penalties for separate offenses only when the detention committed in the act of abduction is separate and apar t from, and not merely incidental to, the restraint employed in the c ommission of the other crime. Brown v. Commonwealth, 230 Va. 310, 314, 337 S.E.2d 711, 713-14 (1985). The Supreme Court of Virginia clarified tha t the incident al detention doctr ine “only applies when a[n appellant] is convicted of tw o or more crimes arising out of th e same factual episode.” Walker v. Commonwealth, 272 Va. 511, 516, 636 S.E.2d 476, 479 (2006). Th us, the incidental detention doctrine is by definition inapplicable in this case because app ellant was only charged with and convicted of one offense, abducti on with intent to defile.- 6 - could not move or get free from hi m. These facts establish, as the trial court found, that appellant intended to deprive K. V. of her personal liberty. In order to prove abduction with i ntent to defile, the Commonw ealth must also prove that “[the defendant] abducted [the vi ctim] with the intent to sexua lly molest her.” Crawford, 281 Va. at 102-03, 704 S.E.2d at 118. In th is case, appellant seiz ed and detained K.V. and then tried to remove her sports bra, ultimately putting his hand under her shirt and groping her breast. This evidence establishes that appell ant had the intent to sexually molest K.V. because he intentionally put his hand on her br east leaving it there throu ghout the encounter. See Code § 18.2-67.10. Appellant relies on two cases , Johnson v. Commonwealth 221 Va. 872, 275 S.E.2d 592 (1981), and Burton v. Commonwealth, 281 Va. 622, 708 S.E.2d 892 (2011), to further support his argument that he did not int end to deprive K.V. of her pers onal liberty separate from the sexual assault, and thus, should not have been found guilty of abduction with intent to defile. However, these cases can easil y be distinguished from the prese nt case. First, in Johnson, the perpetrator pretended to be a handyman, gained access to the vi ctim’s apartment, then attempted to kiss her, and rubbed his clothe d body against her backside. 221 Va. at 874, 275 S.E.2d at 593-94, Johnson’s intent was to have sexual intercourse with th e victim therein, but he ran away when the victim resisted and screamed. Id. at 879, 275 S.E.2d at 596. The Supreme Court of Virginia found that Johnson’s actio ns were all “in furtherance of his sexual advances and not with the intent to deprive [the victim] of her personal liberty , although such a deprivation did occur momentarily.” Id. at 879, 275 S.E.2d at 597. In Burton, the perpetrator tried t o get the victim to engage in sexual activity with him by stepping in front of her with hi s pants unzipped. 281 Va. at 6 28, 708 S.E.2d at 895. However, he stepped aside after the vict im stated repeatedly that she ne eded to leave. Id. at 629, 708- 7 - S.E.2d at 895. The Supreme Court of Virginia reversed Burton’s conviction for abduction finding that his “actions were ma de in pursuit of his sexual gr atification and not w ith the intent to deprive [the victim] of her personal liberty.” Id. at 628, 708 S.E.2d at 895. The present case can b e distinguished fro m Johnson and Burton b ecause here, appellant’s use of force and restraint of K .V. was proven to be separate, y et interrelate d, to the sexual assault. Neither Johnson nor Bur ton involved a struggle betwee n the perpetrators and the victims separate from the sexual assa ult. Here, appellant body slammed K.V., stopping her forward movement while she was runni ng. Appellant and K.V. then engage d in a struggle before appellant was able to put his hand on K.V.’s breast. Appellant first wrapped his arms around K.V., restricting her movement a nd making her feel like she cou ld not get away. Further, K.V. testified that appellant was tr ying to move her off of the path she had been running on, toward a rocky incline and a river. Thr oughout the struggle K.V. stated that she was trying her best to remain on the trail. Here, appell ant’s actions constituting th e abduction were the elementary precursor to when K.V. wa s sexually molested. This case is most similar to Ellis v. Commonwealth, No. 2700-10 -2, 2012 Va. App. LEXIS 92, at *7 (Va. Ct. App. Mar. 27, 2012), 2 where this Court found that a convenience store clerk’s attempts to free hers elf from Ellis’s grasp and the str uggle that took place for twenty seconds between them proved that appellant meant to deprive the clerk of her liberty.” In Ellis, the perpetrator entered a conve nience store and tried to get th e store clerk to “mess around in the back room.” Id. at *6. When the clerk refused Ellis’s advance s, he held her tight, and tried to pull her to the back of the kios k. Id. The surveillance foota ge showed a twenty-second struggle between appellant and the cler k. Id. The present case is simi lar to Ellis because appellant body

2 “Although not binding precedent, unpublished opinions can be c ited and considered for their persuasive value.” Otey v. Commonwealth, 61 Va. App. 346 , 350 n.3, 735 S.E.2d 255, 257 n.3 (2012) (citing Rule 5A:1(f)).- 8 - slammed K.V. and wrapped his arms around her, preventing her mo vement, while also trying to pull her off the path. Appellant and K.V. struggled before app ellant was able to put his hand under her shirt and grope her br east. These actions prove, lik e this Court found in Ellis, that appellant used force to deprive K.V. of her personal liberty. Appellant groping K.V.’s breast proves that he intended to def ile her. Viewing the evidence in the light most favorable to the Commonwealth, the prev ailing party below, there were sufficient facts to support appellant’s conviction. Thus, the trial court did not e rr in finding appellant guilty of abduction with intent to defile, and its judgment is affirmed. Affirmed.