                     COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judge Coleman and
          Senior Judge Duff
Argued at Alexandria, Virginia


CHARLES A. HITCHCOCK, S/K/A
 CHARLES ALLEN HITCHCOCK
                                          MEMORANDUM OPINION * BY
v.           Record No. 1387-97-4        JUDGE SAM W. COLEMAN III
                                             APRIL 21, 1998
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF STAFFORD COUNTY
                        J. Peyton Farmer, Judge

             William G. Dade for appellant.

             John K. Byrum, Jr., Assistant Attorney
             General (Richard Cullen, Attorney General, on
             brief), for appellee.



     Charles Allen Hitchcock was convicted by a jury for two

counts of abduction and use of a firearm in the commission of

abduction.    On appeal, he contends:   (1) the Commonwealth failed

to disclose exculpatory evidence during discovery; (2) the trial

court erred by admitting evidence that he failed to appear at

preliminary hearing and arraignment proceedings pertaining to the

abduction charges; and (3) the evidence is insufficient to

support the convictions.    We disagree and affirm the convictions.
     BACKGROUND

     Shawn Austin, one of the abduction victims, suspected that

appellant had stolen his all-terrain vehicle (ATV) and was

secreting it on appellant's property.    Late at night, Austin and
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Robert Perryman rode their ATVs onto appellant's property to

search for the missing ATV.   Austin and Perryman, who were masked

or hooded, were riding across the property when appellant and his

brother, Shawn Hitchcock, "jumped out of the woods," pointed

rifles at Austin, and yelled "Freeze."     Austin stopped, removed

his hood, and identified himself.   Perryman tried to ride away,

but wrecked in a ditch.   Shawn Hitchcock followed Perryman while

appellant held a gun on Austin and escorted him to where Perryman

had wrecked.
     Perryman testified that appellant, while training his rifle

at him and Austin, stated:    "If we help you get [Perryman's]

four-wheeler out [of the ditch], you are going back to the house

with us."   Appellant helped Perryman retrieve the ATV from the

ditch while Shawn Hitchcock pointed his rifle at Austin and

Perryman.   Shawn Hitchcock told Austin:   "[T]ell your friend the

next time somebody tells him to freeze he had better stop,

because I was about two seconds from blowing his head off."      The

Hitchcocks also told Austin and Perryman that the police had been

called and that the four of them had to await the arrival of the

police at the Hitchcocks' house.    Shawn Hitchcock admitted at

trial that the police had not been called.    Both Austin and

Perryman testified that they went with the Hitchcocks to the

house because they feared that appellant and his brother would

shoot them.

     The Hitchcocks followed Austin and Perryman to the house.




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Although neither Austin nor Perryman observed whether the

Hitchcocks held their guns on them as they rode to the house,

they testified that appellant and Shawn were training their guns

on them when they started toward the house and when they arrived

there.   Eventually, appellant and his brother told Austin and

Perryman to leave.   Appellant was convicted by a jury for

abduction of Austin and Perryman and use of a firearm in the

commission of abduction.

    I.   COMMONWEALTH'S DUTY TO DISCLOSE EXCULPATORY EVIDENCE

     Due process requires the Commonwealth to disclose all

exculpatory evidence to an accused.      Allen v. Commonwealth, 20

Va. App. 630, 637, 406 S.E.2d 248, 251 (1995) (citing Brady v.

Maryland, 373 U.S. 83 (1963)).    "Exculpatory evidence" is defined

as evidence that is "material to guilt or punishment and

favorable to the accused," id., and includes impeachment.      See

United States v. Bagley, 473 U.S. 667, 676 (1985); Robinson v.

Commonwealth, 231 Va. 142, 150, 341 S.E.2d 159, 164 (1986).

Evidence is "material," and its nondisclosure justifies reversal

on appeal, only "if there is a reasonable probability that, had

the evidence been disclosed to the defense, the result of the

proceeding would have been different."      Bagley, 473 U.S. at 682;

see Correll v. Commonwealth, 232 Va. 454, 465, 352 S.E.2d 352,

358 (1987).

     In the present case, appellant's father had obtained

misdemeanor warrants charging Austin and Perryman with




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trespassing on the Hitchcocks' property.      Upon learning of the

warrants and determining that they were "meritless," the

Commonwealth's attorney obtained a nolle prosequi of the

trespassing charges.    The Commonwealth did not disclose to

appellant's counsel that Austin and Perryman had been charged

with trespassing and that the Commonwealth nol prossed the

charges.

     Appellant contends the fact that trespass warrants were

issued and nol prossed constituted "exculpatory evidence" which
the Commonwealth was required to disclose under the holding in

Brady v. Maryland.     We disagree.   As noted in Part III, infra, a

landowner may use reasonable force to eject a trespasser but has

no right to abduct the trespasser.       The fact that Austin and

Perryman had been charged with trespassing does not tend to

establish any "legal justification" for appellant to abduct them

or in any other way tend to exonerate the appellant or impeach

the testimony of a witness.    Furthermore, we fail to see, and

appellant fails to demonstrate, how the Commonwealth's obtaining

a nolle prosequi of the charges could have induced Austin and
Perryman, as victims of the alleged abduction, to testify against

appellant, or improperly influenced their account of the

incident.   Cf. Moreno v. Commonwealth, 10 Va. App. 408, 415-16,

392 S.E.2d 836, 841 (1990) (Commonwealth required to disclose

information regarding relationship of informant-witness with

prosecuting authorities).    We fail to see that the nolle prosequi



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of the warrants was exculpatory or could have led to exculpatory

evidence.   Accordingly, we cannot say that had the Commonwealth

apprised appellant of the facts surrounding the trespassing

warrants, that a reasonable probability exists that the outcome

of appellant's abduction trial would have been different.      See

Bagley, 473 U.S. at 682.   Because the evidence was not

exculpatory, the Commonwealth was not required under Brady to

disclose it.
          II.   EVIDENCE OF APPELLANT'S FAILURE TO APPEAR
             AT PRELIMINARY HEARING AND AT ARRAIGNMENT

     The Commonwealth introduced evidence that appellant failed

to appear at a preliminary hearing in general district court and

at arraignment in the circuit court regarding the abduction

charges relating to Austin and Perryman.   The Commonwealth

presented the evidence to establish appellant's consciousness of

guilt on the charges against him.

     Evidence of an accused's flight from prosecution is

admissible as evidence of consciousness of guilt, and, thus, of

guilt itself.   See Palmer v. Commonwealth, 14 Va. App. 346,

348-49, 416 S.E.2d 52, 53 (1992); Langhorne v. Commonwealth, 13

Va. App. 97, 103, 409 S.E.2d 476, 479 (1991) ("Any flight at a

time when it may be to avoid arrest, prosecution, or confinement

tends to show a consciousness of guilt.").   We have held that

evidence of an accused's failure to appear at trial may be

properly admitted to prove his flight from prosecution and, thus,

is a fact that may be proven for the jury to infer the accused's



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consciousness of guilt.    See Langhorne, 13 Va. App. at 101-02,

409 S.E.2d at 477.

     The trial court did not err by admitting evidence that

appellant failed to appear at the preliminary hearing and

arraignment.   Appellant's argument is unsound that his appearance

at trial rendered irrelevant and immaterial the evidence that he

failed to appear at arraignment and at the preliminary hearing.

By his truancy, the jury could find that appellant attempted to

elude the charges and hinder the prosecution against him.

Appellant's failure to appear for a preliminary hearing and

arraignment, like the failure to appear for the trial, is

evidence of flight from prosecution and was admissible to

establish his consciousness of guilt on the charges against him.

     Furthermore, contrary to appellant's assertion, the

Commonwealth was not required to prove that appellant had been
convicted of failing to appear at the proceedings.    See Wright v.

Commonwealth, 245 Va. 177, 191, 427 S.E.2d 379, 388-89 (1993).
                 III.   SUFFICIENCY OF THE EVIDENCE

     Code § 18.2-47 provides, in pertinent part, that "[a]ny

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

legal justification or excuse, seizes, . . . detains or secretes

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

person of his personal liberty . . . shall be deemed guilty of

abduction."

     Under familiar principles of appellate review, we will not




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disturb the jury's verdict unless it is plainly wrong or without

evidence to support it.   Traverso v. Commonwealth, 6 Va. App.

172, 176, 366 S.E.2d 719, 721 (1988).   When the sufficiency of

the evidence is challenged on appeal, we review the evidence in

the light most favorable to the Commonwealth and grant to it all

reasonable inferences fairly deducible therefrom.    Higginbotham

v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).

     Viewed accordingly, the evidence is sufficient to prove that

appellant abducted Austin and Perryman and that he used a firearm

in the commission of the abductions.    Appellant and his brother

jumped out of the woods, brandished rifles at Austin and

Perryman, and commanded them to "freeze."   With his rifle trained

at Austin and Perryman, appellant told them that after he helped

retrieve Perryman's wrecked ATV "you are going back to the house

with us."   Appellant and his brother also coerced the victims to

go to the house by falsely telling them the police had been

called.   Both Austin and Perryman recounted how appellant and his

brother pointed their rifles at them when they started riding

toward the house and were doing so when they arrived.   On these

facts, the jury could reasonably conclude that appellant used

"intimidation," by pointing his rifle at Austin and Perryman and

commanding them to go with him to his house, and "deception," by

falsely telling them the police had been called, in order to

detain the two victims "with the intent to deprive [them] of

[their] personal liberty."   See Scott v. Commonwealth, 228 Va.




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

     Appellant argues that he had "legal justification" to

confront and detain Austin and Perryman because they trespassed

onto his property.   Assuming, as the facts suggest, that Austin

and Perryman were trespassing, appellant's argument has no merit.

Virginia common law has long recognized the right of a landowner

to order a trespasser to leave his property, and, should the

trespasser refuse, "to employ proper force to expel him, provided

no breach of the peace is committed . . . ."     Pike v.

Commonwealth, 24 Va. App. 373, 375, 482 S.E.2d 839, 840 (1997)

(emphasis added).    However, although a proprietor may use such

force as is reasonably necessary to expel a trespasser, a

proprietor may not unlawfully seize or detain a trespasser.      Cf.

Montgomery v. Commonwealth, 99 Va. 833, 835-36, 37 S.E. 841,

842-43 (1901) (no right to attack trespasser).    Accordingly, even

if Austin and Perryman were trespassing, the appellant had no

right to abduct them under Virginia law.

     For these reasons, we affirm the convictions.
                                                           Affirmed.




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