                  COURT OF APPEALS OF VIRGINIA


Present: Judges Annunziata, Bumgardner and Frank
Argued at Salem, Virginia


JOSEPH MARK HERBIN, III, S/K/A
 JOSEPH MARK HERBIN, II
                                              MEMORANDUM OPINION * BY
v.   Record No. 0223-00-3                      JUDGE ROBERT P. FRANK
                                                  JANUARY 30, 2001
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF THE CITY OF SALEM
                  Robert P. Doherty, Jr., Judge

          Malcolm McL. Doubles (Rena G. Berry, on
          brief), for appellant.

          Donald E. Jeffrey, III, Assistant Attorney
          General (Mark L. Earley, Attorney General;
          Eugene Murphy, Assistant Attorney General, on
          brief), for appellee.


     Joseph Mark Herbin, III, (appellant) was convicted in a bench

trial of two counts of abduction in violation of Code § 18.2-47.

On appeal, he contends the trial court erred in finding there was

an abduction of the victims, separate and apart from the detention

inherent in the robbery.    Finding no error, we affirm the judgment

of the trial court.

                            I.   BACKGROUND

     On October 2, 1997, appellant and Robert Lynch entered a

McDonald's restaurant wearing masks and carrying guns.       They told


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Michael Hutton, the restaurant manager, that they did not want to

hurt anyone and just wanted the money.   Then, they ordered Hutton

to remove the money from the restaurant's safe.    When he refused

to do so, Lynch cocked his gun, put the gun in Hutton's back, and

forced Hutton, at gunpoint, to walk to the rear office where the

safe was located.   Appellant locked some other employees in a

walk-in freezer.

     Lisa Martin, who was not on duty that night but was doing

some paperwork in the office where the safe was located, had

already been alerted by another employee that a robbery was in

progress.   As a result, she dialed 911, but hung up the telephone

when she saw the robbers and Hutton coming around the corner.

When appellant, Lynch, and Hutton entered the rear office, Martin

crawled on the top of the desk to get as far away from them as

possible because she was afraid of the guns.    Hutton opened the

safe, and appellant and Lynch took the money.   Before they left,

appellant and Lynch told Martin and Hutton to turn their heads and

not to look at them.   Hutton testified, "[T]hey told us stay there

and not to look back until after they had gone."    Hutton stated he

gave the gunmen plenty of time to get out "[b]ecause I was afraid

if I didn't they might turn around and shoot me."   Appellant and

Lynch were in the rear office for approximately three minutes.

     Appellant was convicted of numerous felonies, including one

count of robbery, one count of abduction of Lisa Martin, one count



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of abduction of Michael Hutton, and related firearm offenses.

Appellant only appeals the two abduction convictions.

                            II.    ANALYSIS

     Appellant contends the double jeopardy clause of the Fifth

Amendment bars his convictions of the abductions of Hutton and

Martin.   Appellant argues the detention 1 of Martin and Hutton was

merely incidental to the restraint inherent in the act of robbery.

Essentially, appellant argues he received multiple punishments for

the same offense.

                The double jeopardy clause of the Fifth
           Amendment provides that no person shall "be
           subject for the same offense to be twice put
           in jeopardy of life or limb . . . ." It is
           now well recognized that this clause affords
           an accused three distinct constitutional
           guarantees. "It protects against a second
           prosecution for the same offense after
           acquittal. It protects against a second
           prosecution for the same offense after
           conviction. And it protects against multiple
           punishments for the same offense." North
           Carolina v. Pearce, 395 U.S. 711, 717, 89
           S. Ct. 2072, 2076, 23 L.Ed.2d 656 (1969).

Brown v. Commonwealth, 230 Va. 310, 312-13, 337 S.E.2d 711, 712-13

(1985).

     In Brown, the Supreme Court of Virginia held:

                [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

     1
       Appellant does not contest the fact that both Martin and
Hutton were detained.


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            of abduction is 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 713-14.

     "In Brown v. Commonwealth, the Supreme Court recognized that

'in the enactment of the abduction statute 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.'"   Phoung v. Commonwealth, 15 Va. App. 457, 461,

424 S.E.2d 712, 714 (1992) (quoting Brown, 230 Va. at 314, 337

S.E.2d at 713 (1985)).   Therefore, "[w]e must determine whether

the detention of the victims was separate and apart from, and not

merely incidental to, the restraint inherent in the act of

robbery."   Id. at 462, 424 S.E.2d at 714-15.

                 A defendant may be convicted of
            abduction in addition to robbery if the
            victim's detention "'is separate and apart
            from, and not merely incidental to, the
            restraint employed in the commission of
            [robbery].'" Hoke v. Commonwealth, 237 Va.
            303, 311, 377 S.E.2d 595, 600 (quoting Brown
            v. Commonwealth, 230 Va. 310, 314, 337 S.E.2d
            711, 714 (1985)), cert. denied, 491 U.S. 910,
            109 S. Ct. 3201, 105 L.Ed.2d 709 (1989).
            Thus, to constitute an abduction, separate
            and apart from a robbery, the victim's
            detention must be greater than the restraint
            that is intrinsic in a robbery. Id. at 311,
            377 S.E.2d at 600. Additionally, an
            abduction committed for the purpose of
            avoiding an arrest for a robbery or to retain
            the fruits of a robbery is perpetrated with
            the intent to extort pecuniary benefit.
            Cortner v. Commonwealth, 222 Va. 557, 560-61,
            281 S.E.2d 908, 910 (1981).


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Cardwell v. Commonwealth, 248 Va. 501, 511, 450 S.E.2d 146, 152-53

(1994).

     In Phoung, appellant broke into the victim's house, tied her

up, and carried her upstairs to her bedroom where she kept her

cash and jewelry.   She then was robbed.   We held that the

detention of the victim was separate and distinct from the

restraint inherent in the act of robbery.    We wrote:

               Simply stated, the asportation of a
          victim from one room to another and the
          binding of another victim's hands and feet
          together are not acts inherent in the crime
          of robbery. See Jones v. Commonwealth, 13
          Va. App. 566, 572, 414 S.E.2d 193, 196 (1992)
          (robbery involves the taking, with the intent
          to steal, of the personal property of
          another, from his person or in his presence,
          against his will, by violence or
          intimidation). Therefore, we find that the
          constitutional guarantee precluding multiple
          punishments for the same offense has not been
          abridged.

Phoung, 15 Va. App. at 462, 424 S.E.2d at 715.

     In Cardwell, the Supreme Court wrote:

               In the present case, the transporting of
          Brown from the robbery scene was a detention
          separate and apart from, and not merely
          incidental to, the robbery and was greater
          than the restraint intrinsic in a robbery.
          Further, the evidence clearly supports a
          finding that the abduction was committed to
          protect the fruits of the robbery and to
          escape an arrest. Therefore, the evidence
          supports the charge of an abduction with the
          intent to extort a pecuniary benefit.
          Consequently, the trial court did not err in
          refusing to strike the Commonwealth's
          evidence.

Cardwell, 248 Va. at 511, 450 S.E.2d at 153.

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                 When considering the sufficiency of the
            evidence on appeal in a criminal case, we
            view the evidence in the light most favorable
            to the Commonwealth, granting to it all
            reasonable inferences fairly deducible
            therefrom. See Higginbotham v. Commonwealth,
            216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
            On review, we do not substitute our own
            judgment for that of the trier of fact. See
            Cable v. Commonwealth, 243 Va. 236, 239, 415
            S.E.2d 218, 220 (1992). The judgment will
            not be set aside unless it is plainly wrong
            or without supporting evidence. See Martin
            v. Commonwealth, 4 Va. App. 438, 443, 358
            S.E.2d 415, 418 (1987).

Herrel v. Commonwealth, 28 Va. App. 579, 586, 507 S.E.2d 633,

636-37 (1998).

     In this case, the trial court, as the trier of fact, could

have reasonably concluded that the abductions of Martin and Hutton

were separate and apart from the restraint employed in the

commission of the robbery.   When appellant ordered both Martin and

Hutton to "stay there and not to look back" until after he and

Lynch left, he detained Martin and Hutton with the intent "to

extort pecuniary benefit" and to facilitate his escape.

     For these reasons, we find that the constitutional guarantee

precluding multiple punishments for the same offense has not been

violated.   Therefore, we affirm appellant's convictions.

                                                            Affirmed.




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