                                              COURT OF APPEALS OF VIRGINIA


              Present: Judges Alston, McCullough and Senior Judge Annunziata
UNPUBLISHED


              Argued at Alexandria, Virginia


              JUAN LOZANO-BOLANOS
                                                                             MEMORANDUM OPINION* BY
              v.      Record No. 0711-13-4                                 JUDGE STEPHEN R. McCULLOUGH
                                                                                    APRIL 1, 2014
              COMMONWEALTH OF VIRGINIA


                                    FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
                                                Thomas D. Horne, Judge

                                Bonnie H. Hoffman, Deputy Public Defender (Office of the Public
                                Defender, on briefs), for appellant.

                                Kathleen B. Martin, Senior Assistant Attorney General (Kenneth T.
                                Cuccinelli, II, Attorney General, on brief), for appellee.


                      Juan Lozano-Bolanos appeals from his conviction of abduction. He argues that the evidence

              fails to show a specific intent to deprive the victim of her personal liberty. We hold the evidence

              was sufficient for a rational fact finder to conclude that appellant had the necessary intent.

              Therefore, we affirm his conviction.

                                                         BACKGROUND

                      R.K. testified she returned home to her apartment around 12:30 in the morning and parked

              her car. As she was retrieving some items from her car, appellant parked his car in the parking

              space next to her’s. He did everything “real fast:” parking his car, taking out the keys, and turning

              off the lights. Appellant walked past her, then turned around and stood still for a few seconds. He

              approached R.K. and asked her for directions to Route 28. She gave him those directions. He then

              asked her for directions to Route 7. She again supplied him with directions. Although he asked in

                      *
                          Pursuant to Code § 17.1-413, this opinion is not designated for publication.
English, when she answered, he “just kept looking at [her] as if he didn’t understand.” He “just

stood there.”

        Appellant then went to his car and took out a spiral notebook, turned around, and walked

back toward her. He stood at the right corner of R.K.’s trunk for several minutes as if he were

reading the notebook. He put the notebook down and approached her, asking her for a quarter.

        As she reached into her purse, appellant lunged at her and grabbed both of her arms. He

pushed her back as he grabbed her and they both fell “halfway” through the open door into the back

seat of R.K.’s car. R.K. began screaming and fighting. Appellant kept saying “come on, come on,

come on” as he held her. She tried to break free but could not because he was holding her so

tightly. R.K. testified that during the struggle, he did not place his hands on her chest, attempt to

place his hand up her shorts or try to pull on her shorts. Neither her shorts nor her tank top were

torn.

        R.K.’s sister heard her screaming. When R.K.’s sister began yelling at appellant, he desisted

and fled on foot. Soon afterwards, he returned to his car and drove away. R.K. noticed a notebook

lying on the ground, as well as a knife that “somehow got knocked down.” The knife was next to

her car, near her open back door.

        R.K.’s sister testified that “less than 30 seconds” elapsed between the time she heard the

panicked screams and the time she ran down to the parking lot. R.K. estimated the incident lasted

one or two minutes.

        Appellant initially was charged with a single charge of abduction with the intent to defile.

The trial court granted his motion to strike as to the intent to defile and convicted him of simple

abduction.




                                                  -2-
                                             ANALYSIS

        On appeal, a reviewing court does not “‘ask itself whether it believes that the evidence at

the trial established guilt beyond a reasonable doubt.’” Jackson v. Virginia, 443 U.S. 307,

318-19 (1979) (emphasis in original, citation omitted). Instead, we ask only “‘whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.’” Maxwell v.

Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008) (quoting Jackson, 443 U.S. at

319) (emphasis in original). An appellate court is “not permitted to reweigh the evidence,”

Nusbaum v. Berlin, 273 Va. 385, 408, 641 S.E.2d 494, 507 (2007), because appellate judges

have no authority “to preside de novo over a second trial,” Haskins v. Commonwealth, 44

Va. App. 1, 11, 602 S.E.2d 402, 407 (2004). Furthermore, we draw all reasonable inferences in

favor of the Commonwealth as part of viewing the evidence in its favor. See, e.g., Archer v.

Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997).

        Pursuant to Code § 18.2-47, a person is guilty of abduction when he “by force, intimidation

or deception, and without legal justification or excuse, seizes [or] . . . detains . . . another person

with the intent to deprive such other person of his personal liberty . . . .” This statutory crime

does not contain the common law requirement of “asportation”; that is, the victim need not be

moved from one place to another for the defendant to be guilty of abduction. See Scott v.

Commonwealth, 228 Va. 519, 526, 323 S.E.2d 572, 576 (1984).

        Appellant’s challenge focuses on whether the evidence proved he had the necessary

intent to be convicted of abduction. 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

                                                  -3-
frequently is, shown by circumstances” including “[his] conduct” and “his statements.” Barrett

v. Commonwealth, 210 Va. 153, 156, 169 S.E.2d 449, 451 (1969). Furthermore,

               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 with 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 generally 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

findings will not be disturbed on appeal unless plainly wrong or without evidence to support

them.” Smith v. Commonwealth, 17 Va. App. 68, 71, 435 S.E.2d 414, 416 (1993).

       Grabbing a complete stranger and holding this stranger down against her will, as the

person so restrained physically resists and screams, and then desisting only when detected,

evinces an unmistakable intent to “seize[] . . . another person with the intent to deprive such

other person of [her] personal liberty.” Appellant’s repeated statements to the victim “come on,

come on, come on” as she resisted him further demonstrate his intent to abduct her. The

factfinder can infer a person intends the natural and probable consequences of his acts. See, e.g.,

Adams v. Commonwealth, 33 Va. App. 463, 471, 534 S.E.2d 347, 351 (2000).

       To overcome this rather obvious conclusion, appellant seeks to press the “incidental

detention” doctrine into service, albeit indirectly. In Brown v. Commonwealth, 230 Va. 310, 337

S.E.2d 711 (1985), the Supreme Court held that in enacting the abduction statute, “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. By its plain terms – as appellant acknowledges – the incidental detention



                                                -4-
doctrine does not apply when the defendant is convicted of only one crime. See Walker v.

Commonwealth, 272 Va. 511, 516-17, 636 S.E.2d 476, 479 (2006).1

       Appellant still contends the incidental detention framework is “informative of whether he

possessed the requisite intent to deprive Ms. R.K. of her personal liberty.” He argues that when

an individual is engaging in one action, it can negate his intent to commit a different offense.

We do not disagree with the premise. For example, in Johnson v. Commonwealth, 221 Va. 872,

275 S.E.2d 592 (1981), the Supreme Court of Virginia concluded that when the defendant

grabbed the victim tightly from behind and tried to kiss her while rubbing his hips against her

buttocks, the restraint “was done in furtherance of his sexual advances and not with the intent to

deprive her of her personal liberty, although such a deprivation did occur momentarily.” Id. at

879, 275 S.E.2d at 597. In the assault context, a person engaged in a fight might grab another

pugilist’s clothing during the melee, thereby preventing that person from moving about freely.

Depending on the facts presented, such a scenario may rule out an intent to abduct. On the

evidence before us, however, we find the trial court’s finding of intent amply justified.

       Moreover, Johnson simply does not resemble this case. There, the defendant’s actions

ruled out a specific intent to deprive the victim of her personal liberty. Instead, the defendant

was trying to gratify himself sexually. That is not the case here. On the facts before us,

appellant’s actions demonstrated an intent to restrict the victim’s personal liberty.

       We also observe that it is entirely possible for a defendant to harbor an intent that

satisfies two separate crimes. Indeed, when a defendant carries out his abduction by means of

force rather than threats, a battery will accompany the abduction. An intent to batter the victim,


       1
         In Walker, the defendant was charged with robbery, use of a firearm during the
commission of a robbery, abduction, and use of a firearm during an abduction. He was acquitted
of robbery and the use of a firearm in the commission of robbery, but he was convicted of
abduction and the use of a firearm in the commission of abduction. Id. at 512, 636 S.E.2d at 477.

                                                -5-
as appellant concedes he had, does not exclude the possibility of a simultaneous intent to abduct.

Where the facts warrant a conclusion that appellant committed abduction as well as a separate

crime, the prosecution is free to elect which crime to charge – or to charge both if the detention is

not purely incidental to the other crime. It is settled law that “‘[a] prosecutor has the discretion

to decide under which of several applicable statutes the charges shall be instituted.’” In re

Horan, 271 Va. 258, 264, 634 S.E.2d 675, 679 (2006) (quoting Hensley v. City of Norfolk, 216

Va. 369, 373, 218 S.E.2d 735, 739 (1975)).2

       We reject appellant’s novel invocation of the incidental detention doctrine. The General

Assembly, in amending the abduction statute, did not intend to allow prosecutors to tack on an

abduction charge every time a restraint on liberty is inherent in a separate crime. We do not,

however, perceive a further intent by the legislature to restrict prosecutions for abduction

simpliciter in situations where the Commonwealth might have elected to charge a lesser crime

instead.

                                          CONCLUSION

       The judgment of the trial court is affirmed.

                                                                                            Affirmed.




       2
         Moreover, these discretionary charging decisions are, in the main, not subject to judicial
second-guessing. Rare exceptions to this general rule include situations of prosecutorial
vindictiveness, see Blackledge v. Perry, 417 U.S. 21 (1974); violations of the prohibition on
placing a defendant in double jeopardy, see Brown v. Ohio, 432 U.S. 161 (1977); or selective
prosecutions in violation of the Equal Protection Clause, see United States v. Armstrong, 517
U.S. 456 (1996).
                                                -6-
