                      COURT OF APPEALS OF VIRGINIA


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


RICHARD DAVID FISHBACK
                                          MEMORANDUM OPINION * BY
v.   Record No. 1377-98-4                  JUDGE CHARLES H. DUFF
                                               JUNE 15, 1999
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
                   Carleton Penn, Judge Designate

           S. Jane Chittom, Appellate Counsel (Elwood
           Earl Sanders, Jr., Appellate Defender; Public
           Defender Commission, on briefs), for
           appellant.

           Eugene Murphy, Assistant Attorney General
           (Mark L. Earley, Attorney General, on brief),
           for appellee.


     Richard David Fishback (appellant) was convicted in a jury

trial of one count of robbery, one count of use of a firearm

during the robbery, three counts of abduction, and three counts of

use of a firearm during the abductions.   Appellant contends that

the trial court erred by (1) finding the evidence sufficient to

prove that appellant abducted three people, (2) finding the

evidence sufficient to prove that he used a firearm during those

abductions, (3) refusing appellant’s proffered instruction on

abduction, and (4) denying appellant’s motion to suppress all

    *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
in-court identifications of him by witnesses who had been shown a

photo array.   For the following reasons, we find no error and

affirm the convictions.

                               Facts

     At approximately 2:45 p.m. on January 7, 1997, Elaine

Armentrout (Elaine) was working as a cashier at the Corner Store.

Her husband, Johnnie Armentrout (Johnnie), and a customer, Robert

Fogle, were also present in the store.   Elaine looked up from the

counter when she heard a man say, “I’m not kidding.”   She saw a

man with a gun order Johnnie and Fogle to lie on the floor.   The

man then walked to the counter, pointed his gun at Elaine and

demanded money.   Elaine gave him the bills from the cash register

and the bank bag that was under the counter.   Afterwards, the man

told Elaine to get on the floor and to stay there for five

minutes.

     Elaine described the man as in his late thirties, about 5’6”

to 5’8”, weighing 160 to 170 pounds.   He was wearing an “olivey”

green, dark jacket and had a nylon stocking over his face with

“great big round cut-outs” for his eyes.   Elaine was able to see

the man’s eyes and eyebrows, and observed him at arm’s length for

a couple of minutes.   In court, Elaine identified appellant as the

robber.

     Raymond Heflin, who lives across the street from the Corner

Store, noticed a Toyota Corolla parked in a peculiar manner near


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the store, and made note of the license tag number, IXQ 344.    A

few minutes later, Heflin saw appellant, with his face uncovered,

run from the front of the store, jump into the Toyota Corolla, and

speed away.   When the police arrived later, Heflin reported what

he had observed.   The next day, Heflin noticed the same Toyota

Corolla pass him and saw appellant driving the car.   Heflin noted

the tag number, which was one letter off from the number he had

recalled from the previous day.   In court, Heflin identified

appellant as the person he had seen on those two days.

     Deborah Pullen, the owner of the Toyota Corolla, loaned her

car to appellant on January 7, 1997.    Appellant picked her up from

work at about 3:30 p.m., gave her a handgun, and asked her to put

it in her house, where it was later found.

     Investigator Gary Healy interviewed appellant the day after

the crime.    Initially, appellant denied any involvement, but later

admitted that the police “had the right man in custody.”   When

Healy talked to Elaine about the crime, she described the robber

as having blue eyes, and brown hair that was covered by some sort

of hat or cloth.   Because appellant was a suspect in his mind,

Healy created a photo spread by looking for five other photographs

of white males, in the same age bracket and with similar

characteristics regarding head hair, facial hair, and facial

features as appellant.   Healy relied on the photograph he had of




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appellant in creating the photo display, and not on the witnesses’

descriptions.

        Heflin identified appellant from the photo spread.

Thereafter, he signed the “back of the lineup folder,” dated it,

and wrote the number of the photograph that he had identified.

Two other witnesses, regarding another case involving appellant,

identified appellant and signed the back of the form.    Thereafter,

Healy contacted Elaine and took the photo spread to her.     Elaine

identified appellant and said “the eyes stood out to her.”    Healy

then turned the folder over, and Elaine signed the back of the

form, dated it, and recorded the number of the picture she had

identified.    Elaine’s signature was the fourth signature on the

back of the photo spread.

        In an opinion letter, the trial court noted that appellant

did not assert that the procedure used by Healy was unduly

suggestive, but that the photo array itself was unduly suggestive.

The court noted that two other persons shown in the array had blue

eyes.    As to the hair color, Healy had instructed the victims to

consider only the features that could not be altered or changed.

Healy attempted to cover the head hair on each person in the photo

spread for each witness, except Heflin, who had seen appellant’s

face uncovered.




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                          Issues 1 and 2

     “On appeal, we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.”    Martin v. Commonwealth,

4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).

     So viewed, the evidence showed that appellant entered the

Corner Store, displayed his gun, and ordered Johnnie and Fogle

to “[g]et on the floor right now, I’m not kidding.”   Appellant

then approached the cashier, Elaine, pointed his gun at her, and

demanded money.   After some difficulty getting the cash register

open, Elaine gave appellant the money from the register and the

bank bag containing money.   Thereafter, appellant told her to

“get on the floor and stay there for five minutes.”   Elaine did

as instructed because “he was holding a gun on [her].”   After

appellant left the store, Johnnie, Fogle, and Elaine got off the

floor, and Elaine called the police.

          [O]ne 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.

Brown v. Commonwealth, 230 Va. 310, 314, 337 S.E.2d 711, 713-14

(1985).




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     The evidence established that the detention of the store’s

occupants, Johnnie and Fogle, who were not victims of the

robbery, while appellant robbed Elaine, was separate and apart

from the restraint inherent in the act of robbery.   Forcing

Johnnie and Fogle onto the floor was greater than the kind of

restraint needed to rob Elaine.   After the robbery was completed

and the money received from Elaine, appellant forced her onto

the floor and demanded that she stay on the floor for five

minutes, actions not inherent in or necessary for completion of

the crime of robbery.   Cf. Cardwell v. Commonwealth, 248 Va.

501, 511, 450 S.E.2d 146, 152-53 (1994) (transporting victim

from robbery scene was detention separate and apart from

restraint needed to commit robbery and was committed to protect

fruits of robbery and to escape arrest).   The evidence was

sufficient to prove beyond a reasonable doubt that appellant

committed three abductions and used a firearm in the commission

of those abductions.

                           Issue 3

     The trial court is responsible “‘to see that the law has

been clearly stated and that the instructions cover all the

issues which the evidence fairly raises.’”   Stewart v.

Commonwealth, 10 Va. App. 563, 570, 394 S.E.2d 509, 513 (1990)

(quoting Swisher v. Swisher, 223 Va. 499, 503, 290 S.E.2d 856,

858 (1982)).   However, “‘[i]t is error to give an instruction,


                               - 6 -
though correct as an abstract statement of law, unless there is

sufficient evidence in the record to support it.’”    Pannell v.

Commonwealth, 9 Va. App. 170, 172, 384 S.E.2d 344, 345 (1989)

(quoting Swift v. Commonwealth, 199 Va. 420, 424, 100 S.E.2d 9,

13 (1957)).

     The trial court instructed the jury on the elements that

the Commonwealth must prove for abduction and robbery

convictions.   The jury was instructed that abduction required

that “the defendant by force or intimidation did seize, take,

transport or detain” the victim and that he did so with the

intent to deprive the victim of his or her personal liberty.

However, the court refused appellant’s instruction that stated:

“The court instructs you that an abduction is a restraint that

is separate and apart from, and not merely incidental to, the

restraint employed in the commission of the other crime.”

     The facts did not support the refused instruction.     The

evidence showed that Johnnie and Fogle, who were forced to the

floor at gunpoint, were not victims of the robbery.   After

appellant completed the robbery of Elaine, he ordered her to the

floor at gunpoint and told her not to move for five minutes.

The evidence showed that the restraint used on Johnnie and Fogle

and then, after the robbery, on Elaine, was separate and apart

from, and not incidental to, the restraint required to rob

Elaine.   There was no dispute about what happened at the scene,


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and no reasonable juror could have found to the contrary.     As

the facts did not support it, the trial court did not err in

refusing appellant’s instruction.

                              Issue 4

     Appellant contends that his in-court identifications by the

witnesses should have been suppressed because they had been

shown a suggestive photo array.   On appeal, it is appellant’s

burden to show that the trial court’s denial of his suppression

motion, when considering the evidence in the light most

favorable to the Commonwealth, constituted reversible error.

See Harmon v. Commonwealth, 15 Va. App. 440, 444, 425 S.E.2d 77,

79 (1992).

     The evidence supports the trial court’s finding that the

photograph display, which included appellant’s photograph, was

not unduly suggestive.   Investigator Gary Healy testified that

he assembled the photographic array by choosing five other

photographs of white males of approximately appellant’s age,

with similar facial features and similar head and facial hair.

The trial court noted that two persons in the array, other than

appellant, had blue eyes.   Regarding the hair color, Healy

instructed the victims not to consider features that could be

altered or changed, like facial and head hair, when inspecting

the photographs.   Moreover, Healy attempted to cover the head

hair on each person in the photo spread for each witness, except


                               - 8 -
Heflin, who had seen appellant’s face uncovered.   Because the

photo array was not unduly suggestive, the trial court’s ruling

was not erroneous.

     After identifying appellant from the photo array, the

witnesses signed the back of the array, dated it, and recorded

the number of the picture he or she had identified.     Elaine

Armentrout was the fourth witness to sign the back of the array.

Appellant claims that seeing the other signatures after her

identification of appellant constituted an impermissible

influence on Elaine’s in-court identification of appellant.

This claim is without merit.   Elaine had already identified

appellant from the photo array before she saw the other

signatures on the back of the display.

     In any event, the out-of-court identifications were so

reliable that no substantial likelihood of misidentification

existed.   In making this determination, the following factors

are considered:

           the opportunity of the witness to view the
           criminal at the time of the crime, the
           witness’ degree of attention, the accuracy
           of the witness’ prior description of the
           criminal, the level of certainty
           demonstrated by the witness at the
           confrontation, and the length of time
           between the crime and the confrontation.

Neil v. Biggers, 409 U.S. 188, 199-200 (1972).

     Regarding the first factor, Elaine observed appellant at

arm’s length for a couple of minutes.    Heflin observed appellant

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leaving the store, get into a car that Heflin had already

noticed because of the way it was parked, and saw appellant

speed away from the scene.   Appellant’s face was uncovered when

Heflin saw him.    Clearly, Elaine and Heflin had the opportunity

to view appellant.

     Second, both witnesses paid attention to appellant.      Elaine

observed appellant while he ordered her husband and another

customer to lie on the floor.    Elaine observed appellant for a

couple of minutes as he robbed her.      Heflin, having already

noticed the peculiarly parked car, noticed appellant run from

the store, jump into that car and speed away.

     In addition, the witnesses’ descriptions of appellant were

accurate.   Elaine described appellant’s eyes as blue.    She and

Heflin described appellant’s hair as brown.     Moreover, neither

witness hesitated when identifying appellant.     Thus, the

witnesses demonstrated a high level of certainty at the

confrontation.    Lastly, Heflin identified appellant within one

day of the crime, and Elaine identified appellant shortly

thereafter.   We find that no substantial likelihood of

misidentification existed.

     The reliability of the identification was further supported

by appellant’s admission to Healy that the police “had the right

man in custody.”   The evidence also showed that the car Heflin




                                - 10 -
observed and its license plate number was the car loaned to

appellant on the afternoon of the crime.

     Therefore, appellant’s claim that the out-of-court

identifications tainted the in-court identifications is without

merit.   The trial court did not err in denying appellant’s

motion to suppress the in-court identifications of appellant by

the witnesses.

     Accordingly, the trial court’s judgment is affirmed.

                                                   Affirmed.




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