                   COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Annunziata and Senior Judge Cole
Argued at Richmond, Virginia


KALVIN DONNELL COWARD, S/K/A
 KELVIN DONNELL COWARD

v.   Record No. 2631-94-2                MEMORANDUM OPINION * BY
                                          JUDGE MARVIN F. COLE
  COMMONWEALTH OF VIRGINIA                     APRIL 2, 1996


             FROM THE CIRCUIT COURT OF HENRICO COUNTY
                   Buford M. Parsons, Jr., Judge

            Thomas P. Collins (Eck, Collins &
            Marstiller, on brief), for appellant.

            Eugene Murphy, Assistant Attorney General
            (James S. Gilmore, III, Attorney General,
            on brief), for appellee.



     The appellant, Kelvin Donnell Coward, was convicted by a

jury of robbery, abduction for pecuniary benefit, and two firearm

charges.   On appeal he raises two issues: (1) whether the trial

court erred in refusing to grant appellant's motion to strike the

convictions for abduction for pecuniary benefit and the related

firearm charge, and (2) whether the trial court erred in denying

his motion to set aside the convictions as contrary to the law

and evidence.

     The appellant contends that there was insufficient evidence

of an abduction separate and apart from the robbery to support

the abduction and the related firearm charge, and that the
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
evidence was insufficient to identify him as the perpetrator.

                               I. Facts

     Jeffrey Henry was the restaurant manager at Picadilly's

Cafeteria when appellant rang the bell at the rear door where

employees enter.   Appellant wore clothes similar to those "the

baker normally wore," and, when Henry "looked through the peep

hole [appellant] had his back to [Henry]."   Henry opened the

locked door, and appellant pointed a gun at him.   Appellant "told

[Henry] to back up and get into the store, and he told [him] that

he wanted the money, my money and the store's money or he would

shoot me."   "[A] few feet into the store [appellant] hit [Henry]

in the side of the face with his fist."   "[He] put the gun to

[Henry's] head and told [him] he was going to blow [his] brains

out if [Henry] didn't take [him] to the office and give him the

money."   Appellant made this threat three times as he grasped

Henry's shirt and "pulled" him approximately seventy-five feet

from the back door, down a hallway, through the kitchen, through

an employee's dining area, and into the office.
     During Henry's testimony, the prosecutor asked whether Henry

gave appellant any of his personal money.    Henry stated, "Right

inside the door, when he started demanding the money for [sic]

the office, he demanded my money and that was on my person,

also."    Henry recalled giving appellant twelve dollars.

     In the office, appellant put the gun to Henry's head and

forced him to open the safe.    After taking the money, appellant




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put Henry into a chair in the office, told him "to sit there and

be quiet or he was going to shoot" him.     Appellant fled.   Henry

unequivocally identified appellant as the robber.     He stated that

he was familiar with appellant, who had previously worked at the

restaurant for about six months.

     Shirley Smith, a restaurant employee, testified that, the

night before the robbery, appellant met her at the restaurant

near the end of her shift and asked her for a ride.     Smith was a

friend of appellant's girlfriend.      During the ride, appellant

told Smith that "he had been thinking about robbing [the

restaurant]."
     At trial, appellant moved to strike the abduction charge and

the related use of a firearm charge.     The trial judge found "two

separate acts."   The trial judge ruled that the abduction

occurred "at the door," and taking Henry "into a different place

where he robs him, that's the robbery."

                          II. Discussion

     When reviewing criminal convictions, we consider the

evidence in the light most favorable to the Commonwealth, giving

to it all inferences fairly deducible therefrom.      Sutphin v.

Commonwealth, 1 Va. App. 241, 243, 337 S.E.2d 897, 898 (1985).        A

conviction will be affirmed unless plainly wrong or without

evidence to support it.   Higginbotham v. Commonwealth, 216 Va.

349, 352, 218 S.E.2d 534, 537 (1975).

     Code § 18.2-47 defines abduction and provides, in pertinent



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part:
             Any person, who, by force, intimidation or
             deception, and without legal justification
               or excuse . . . detains . . . the person of
             another, with the intent to deprive such
             other person of his personal liberty . . .
             shall be deemed guilty of "abduction"
             . . . .


        In Brown v. Commonwealth, 230 Va. 310, 337 S.E.2d 711

(1985), the Virginia Supreme Court held that "in the enactment of

the abduction statutes the General Assembly did not intend to

make the kind of restraint which is an intrinsic element of . . .

robbery . . . a criminal act, punishable as a separate offense."
 Id. at 314, 337 S.E.2d at 713.    The Court went on to define the

type of detention addressed by the abduction statute as a

"detention . . . separate and apart from and not merely

incidental to, the restraint employed in the commission of the

other crime."     Id. at 314, 337 S.E.2d at 714.

        Therefore, the question before us is whether the detention

of the victim in this case was "separate and apart" from or

"merely incidental to the robbery."    The indictment charged that

appellant "did rob Jeffrey Henry of United States currency."    The

jury found appellant "guilty of the crime of robbery as charged

in the indictment."    Appellant put the gun to Henry's head and

told him to back up and get into the store, where he personally

robbed Henry of twelve dollars.    Clearly, this evidence supports

the robbery conviction.

        Appellant then told Henry he was "going to blow [his] brains



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out if [Henry] didn't take [him] to the office and give him the

money."   The appellant grasped Henry's shirt and pulled him

seventy-five feet from the back door, down a hallway, through the

kitchen, through an employee's dining area, and into the office.

We find that these acts were not acts inherent in or necessary

to the restraint required for the robbery, but, rather, they

constitute acts separate and apart from the robbery.

     The appellant contends that the identification evidence was

insufficient to prove that he was the perpetrator of the offenses

beyond a reasonable doubt.   Therefore, he argues that the trial

court should have granted his motion to set aside the jury

verdicts as contrary to the law and evidence.   The record fully

supports the fact finder's determination that the appellant was

the perpetrator of the offenses with which he was charged.     Henry

worked with appellant for six months and positively identified

him as the robber.   The night before the crimes, the appellant

further told an acquaintance that he was considering committing

the robbery.   The jury chose to believe this evidence and it was

sufficient to support the convictions.
     For the foregoing reasons, we find that the trial court did

not err in refusing to strike the appellant's evidence and did

not err in refusing to grant the motion to set aside the verdicts

as being contrary to the law and evidence.   Therefore, we affirm

the convictions.

                                         Affirmed.




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