                                          COURT OF APPEALS OF VIRGINIA


            Present: Judges O’Brien, Russell and Retired Judge Bumgardner*
            Argued at Norfolk, Virginia
PUBLISHED




            JEFFREY NIGEL CARR
                                                                                 OPINION BY
            v.     Record No. 1054-17-1                                   JUDGE MARY GRACE O’BRIEN
                                                                                 JULY 24, 2018
            COMMONWEALTH OF VIRGINIA


                         FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                                           Leslie L. Lilley, Judge

                           Kristin Paulding (7 Cities Law, on brief), for appellant.

                           Rosemary V. Bourne, Senior Assistant Attorney General
                           (Mark R. Herring, Attorney General, on brief), for appellee.


                   Following a bench trial, Jeffrey Nigel Carr (“appellant”) was convicted of sex trafficking, in

            violation of Code § 18.2-357.1(A), conspiracy to commit sex trafficking, in violation of Code

            §§ 18.2-22 and 18.2-357.1(A)1, abduction, in violation of Code § 18.2-47(A), conspiracy to commit

            abduction, in violation of Code §§ 18.2-22 and 18.2-47(A), and use of a firearm in the commission

            of abduction, in violation of Code § 18.2-53.1. Appellant challenges the sufficiency of the evidence

            finding him guilty of the offenses. Finding no error, we affirm.



                   *
                     Judge Bumgardner participated in the hearing and decision of this case in his capacity as a
            senior judge of this Court prior to July 1, 2018 and thereafter by designation pursuant to Code
            § 17.1-400(D).
                   1
                      The sentencing order contains a clerical error in that it incorrectly cites Code
            § 18.2-357(A) for appellant’s conviction for conspiracy to commit sex trafficking. The order
            misidentifies the code section but properly describes the offense. Further, in its ruling, the court
            stated that it convicted appellant of the “lesser included offense of conspiracy to commit sex
            trafficking under 18.2-357.1(A).” (Emphasis added). Accordingly, we remand to the trial court for
            the limited purpose of correcting this clerical error. See Code § 8.01-428(B); Tatum v.
            Commonwealth, 17 Va. App. 585, 592-93, 440 S.E.2d 133, 138 (1994).
                                         BACKGROUND

       Following well-established legal principles, we consider the facts in the light most favorable

to the prevailing party, the Commonwealth. Riner v. Commonwealth, 268 Va. 296, 303, 601 S.E.2d

555, 558 (2004). So viewed, the evidence established that in September 2015, the victim (“R.S.”), a

homeless 24-year-old heroin addict, met Justin McQuitty in North Carolina where they had sex and

used heroin together. R.S. subsequently accompanied McQuitty to a hotel in Chesapeake, Virginia,

and they were joined by some of McQuitty’s friends, including appellant. After a discussion about

how the group could earn money, a third man, Alonzo McClenny, suggested that R.S. and another

woman could post prostitution advertisements online at Backpage. McQuitty and McClenny told

R.S. that she needed to make money because she “couldn’t live for free.” McClenny showed R.S.

how to post photographs of herself on Backpage, and he created her first advertisement. R.S.

continued posting advertisements, engaged in prostitution, and gave all money she received to

McQuitty. He provided her with heroin.

       After some time, the group relocated to a Red Roof Inn in Virginia Beach and rented two

rooms facing each other, using the proceeds from R.S.’s prostitution. R.S. and McQuitty stayed in

one room that R.S. also used for prostitution appointments, and the rest of the group, including

appellant, slept in the second room. When a prostitution appointment was scheduled, R.S. advised

the group to leave her room and stay in the second room. The group remained at the Red Roof Inn

for “[q]uite a few days.”

       On September 16, R.S. left the hotel after a dispute with other members of the group. She

rented a room at a hotel next door, America’s Best Value Inn. The second day she was there, R.S.

called the other woman in the group (“T.”) and asked her to bring some clothes to the hotel. T.

came to R.S.’s room accompanied by another man, Brandon Bethel. R.S. was suffering from heroin

withdrawal, so McQuitty brought her some heroin and left Bethel “to keep an eye on [her].” Bethel

                                                -2-
and McQuitty pressured R.S. to post a prostitution advertisement, and reminded her that she had not

made any money that day.

       At approximately 11:00 p.m., McQuitty returned to R.S.’s room with McClenny and

appellant. The men berated R.S., called her a “liar and a junkie,” and accused her of “giving [her]

money to somebody else.” During this confrontation, McClenny was holding a black handgun by

his side. Appellant, who was pacing back and forth in an agitated state, told the other men that R.S.

was lying and “they needed to slam-dunk on [her] ass.” R.S. testified that “slam-dunk” refers to

pistol-whipping.

       R.S. informed the men that she “wasn’t going to work for them anymore and [she] was done

with it all and that [she] didn’t need them” and “could do it on [her] own.” At that point, McClenny

brought the gun to R.S.’s head and told her that “the only way [she] was leaving was either with

[McQuitty] or in a body bag.” R.S. testified she interpreted this statement to mean that the men

would kill her if she did not leave with them. McClenny told the other men to gather R.S.’s bags.

R.S. returned to the Red Roof Inn, surrounded by the four men. Appellant carried some of her

belongings.

       When they got back to the Red Roof Inn, R.S. continued taking prostitution appointments.

She testified that she did not want to engage in prostitution, but she understood that was “what was

supposed to happen” and “[t]hat’s what [she] was there for.” She felt that returning to prostitution

was necessary “to stay alive” because the men had threatened her.

       R.S.’s first appointment robbed her. When she told Bethel, he responded that “it was going

to be really bad for [her] . . . if [she] didn’t have that money” and that she would be pistol-whipped

if she did not do what she was told. Because she was afraid of the consequences, R.S. left in the

middle of the night after everyone was asleep.




                                                 -3-
         R.S. stayed with a former roommate in Chesapeake for a few days and warned him that the

people she was with were “vindictive and violent,” had guns, and were “the type of people you

wouldn’t involve with the police.” However, R.S. subsequently reunited with McQuitty and

continued to use heroin and engage in prostitution. Appellant stayed with them at their hotel, and

they used R.S.’s prostitution earnings to rent the hotel rooms.

         During this time, an investigator from the Dare County (N.C.) Sheriff’s Office received

information that a young woman was being held against her will and forced to commit acts of

prostitution. The investigator coordinated with members of the Virginia Beach Police Department,

who arrested McQuitty at a hotel in Virginia Beach. R.S., who was with McQuitty, told the police

that she feared McClenny and indicated that appellant may be with McClenny because he “rides

around with him a lot.” A police officer found appellant and McClenny in a car together in Virginia

Beach.

         At trial, Detective Ryan Chabot of the Virginia Beach Police Department Special

Investigations Unit testified as an expert in the field of human trafficking operations and sex worker

victimizations. He stated that in the approximately five hundred human trafficking cases he had

investigated, approximately half of the victims were drug addicts. He also explained that sex

traffickers often rent two hotel rooms: one for prostitution appointments, and the other as a place for

prostitutes or pimps to sleep or wait for appointments. Appellant possessed keys to two hotel rooms

at the time he was arrested.

                                            DISCUSSION

         In assessing the sufficiency of the evidence, “the relevant question is 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[s] beyond a reasonable doubt.” Kelly v. Commonwealth,

41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc) (quoting Jackson v. Virginia, 443 U.S.

                                                  -4-
307, 319 (1979)). This Court does not “substitute [its] judgment for that of the trier of fact.”

Wactor v. Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002). “[W]e will not

disturb the trial court’s judgment unless it is plainly wrong or without evidence to support it.”

Hedrick v. Commonwealth, 257 Va. 328, 340, 513 S.E.2d 634, 641 (1999).

                         A. Sufficiency of the Evidence to Prove Abduction

        Code § 18.2-47(A) provides, in relevant part, that a person is guilty of abduction if

                by force, intimidation or deception, and without legal justification or
                excuse, [he or she] seizes, takes, transports, detains or secretes
                another person with the intent to deprive such other person of his
                personal liberty.

        At trial, the Commonwealth’s theory of the case was that appellant committed abduction as

a principal in the second degree. “A principal in the second degree is one not the perpetrator, but

present, aiding and abetting the act done, or keeping watch or guard at some convenient distance.”

Brown v. Commonwealth, 130 Va. 733, 736, 107 S.E. 809, 810 (1921) (quoting Minor’s Synopsis

Crim. Law, p. 11). “[M]ere presence and consent will not suffice . . . . The defendant’s conduct

must consist of ‘inciting, encouraging, advising or assisting in the [abduction].’” Rollston v.

Commmonwealth, 11 Va. App. 535, 539, 399 S.E.2d 823, 825 (1991) (quoting Frye v.

Commonwealth, 231 Va. 370, 389, 345 S.E.2d 267, 280 (1986)).

        To prove aiding and abetting, the evidence must establish that a defendant is “guilty of some

overt act, or . . . share[s] the criminal intent of the principal.” Triplett v. Commonwealth, 141 Va.

577, 586, 127 S.E. 486, 489 (1925). “When the alleged accomplice is actually present and performs

overt acts of assistance or encouragement, he has communicated to the perpetrator his willingness to

have the crime proceed and has demonstrated that he shares the criminal intent of the perpetrator.”

Rollston, 11 Va. App. at 539, 399 S.E.2d at 825-26 (quoting R. Groot, Criminal Offenses and

Defenses in Virginia 183 (1984)).



                                                  -5-
        Here, appellant, along with three other men, confronted R.S. in her room at America’s Best

Value Inn and accused her of giving someone else her money. One man, McClenny, prominently

displayed a firearm during this confrontation. Appellant encouraged him to “slam-dunk on her ass,”

referring to pistol-whipping R.S. When R.S. said she was not going to work for the men any longer,

McClenny held the firearm to her head and told her that “the only way [she] was leaving was either

with [McQuitty] or in a body bag.” Appellant then helped gather and carry R.S.’s bags back to the

Red Roof Inn.

        Appellant contends that because there was no evidence that he interacted with R.S. after she

returned to the Red Roof Inn, and no evidence that he held her against her will or prevented her

from leaving that hotel, he cannot be found guilty of abduction. We disagree. The crime was

complete when appellant and his co-conspirators forced R.S. to return under duress to the Red Roof

Inn. “The crime of abduction requires proof of an asportation or detention by force, intimidation or

deception.” Smith v. Commonwealth, 33 Va. App. 65, 70, 581 S.E.2d 608, 610 (2000). R.S.

testified that she did not go back to the Red Roof Inn willingly, but because she was threatened.

Her eventual escape from that hotel did not preclude the fact finder from concluding that appellant

intended to deprive R.S of her personal liberty at the time he forced her to return there. See Wilson

v. Commonwealth, 249 Va. 95, 103, 452 S.E.2d 669, 675 (1995) (holding that the defendant’s mere

initial act of forcing victims upstairs at knifepoint satisfied the elements of abduction). See also

Walker v. Commonwealth, 47 Va. App. 114, 122, 622 S.E.2d 282, 286 (2005) (“In finding [the

defendant] guilty, the factfinder necessarily found that [the defendant] forcibly detained [the victim]

‘for the length of time necessary for his purpose.’” (quoting Scott v. Commonwealth, 228 Va. 519,

524, 323 S.E.2d 572, 575 (1984))).




                                                  -6-
        Therefore, the evidence established that appellant was guilty of abduction as a principal in

the second degree when he overtly assisted and encouraged the other men to force R.S. to return to

the hotel against her will.

                       B. Sufficiency of the Evidence to Prove Sex Trafficking

        Appellant asserts that the evidence was insufficient to convict him of sex trafficking under

Code § 18.2-357.1(A) because the Commonwealth did not prove that he intended to benefit or assist

others in benefitting from prostitution. Code § 18.2-357.1(A), enacted in 2015, provides:

                Any person who, with the intent to receive money or other valuable
                thing or to assist another in receiving money or other valuable thing
                from the earnings of a person from prostitution or unlawful sexual
                intercourse in violation of subsection A of § 18.2-346, solicits,
                invites, recruits, encourages, or otherwise causes or attempts to cause
                a person to violate subsection A of § 18.2-346 is guilty of a Class 5
                felony.

        Appellant asserts that he “had no intent to participate in the prostitution activities or to help

others participate in them.” He also contends that although he stayed in the hotel room with other

members of the group, the evidence did not establish that he knew the rooms were being paid for by

R.S.’s prostitution earnings.

        In determining whether the evidence is sufficient to support a conviction, “[t]his Court does

not substitute its judgment for that of the trier of fact . . . and the trial court’s judgment will not be

set aside unless plainly wrong or without evidence to support it.” Hunley v. Commonwealth, 30

Va. App. 556, 559, 518 S.E.2d 347, 349 (1999) (citation omitted).

        In an attempt to distance himself from the prostitution enterprise, appellant argues that R.S.

was a “willing participant” who engaged in prostitution to support her heroin habit and acquire

money to obtain “a better life” for herself. He notes that in exchange for her prostitution earnings,

McQuitty provided her with food, shelter, and drugs.




                                                    -7-
         The evidence established that appellant was staying with a group of people in two rooms at

the Red Roof Inn. The group used one room for sleeping and waiting for prostitution appointments,

and R.S. used the other room for her prostitution appointments. R.S.’s prostitution earnings paid for

the rooms. When R.S. left the Red Roof Inn, appellant assisted McQuitty and McClenny in forcing

her to return to the hotel and continue taking prostitution appointments.

         R.S. testified that after she reunited with McQuitty, she stayed in hotel rooms with McQuitty

and appellant that she paid for when she resumed prostitution. Appellant’s contention that he was

unaware the rooms were rented with the proceeds from R.S.’s prostitution is unpersuasive, given the

extensive circumstantial evidence to the contrary. See Foster v. Commonwealth, 179 Va. 96, 100,

18 S.E.2d 314, 316 (1942) (affirming conviction for “keeping a house of ill fame” based on

circumstantial evidence showing the defendant knew that “the proceeds of [his wife’s] earnings

[from prostitution] went in part to the [house owner] and [were] used in the maintenance of [his

residence]”). Additionally, when appellant was apprehended, he possessed keys for two hotel

rooms, which Detective Chabot indicated was common for someone involved in the sex trafficking

trade.

         It is significant to note that the sex-trafficking statute does not require force or coercion,

although those elements were present in this case. The statute merely requires the Commonwealth

to show that a defendant was “solicit[ing] . . . encourag[ing] . . . or otherwise caus[ing] or

attempt[ing] to cause” another to engage in prostitution “with the intent to receive money or other

valuable thing or to assist another in receiving money or other valuable thing.” Code

§ 18.2-357.1(A). Appellant’s involvement in R.S.’s return to the Red Roof Inn to resume

prostitution, and the payment of his hotel room from her prostitution earnings, were sufficient to

establish his guilt.




                                                    -8-
                                       C. Conspiracy Charges

       The Supreme Court has defined conspiracy as “an agreement between two or more persons

by some concerted action to commit an offense.” Wright v. Commonwealth, 224 Va. 502, 505, 297

S.E.2d 711, 713 (1982) (quoting Falden v. Commonwealth, 167 Va. 542, 544, 189 S.E. 326, 327

(1937)). Conspiracy “requires knowledge of and voluntary participation in” the agreement to carry

out the criminal act. Zuniga v. Commonwealth, 7 Va. App. 523, 527, 375 S.E.2d 381, 384 (1988)

(quoting United States v. Bright, 630 F.2d 804, 813 (5th Cir. 1980)). Mere participation in the

crime is insufficient to prove conspiracy; “[t]he agreement is the essence of the conspiracy offense.”

Id. at 527-28, 375 S.E.2d at 384.

       “[M]ost conspiracies are ‘clandestine in nature,’” and “[i]t is a rare case where any ‘formal

agreement among alleged conspirators’ can be established.” Johnson v. Commonwealth, 58

Va. App. 625, 636, 712 S.E.2d 751, 756 (2011) (quoting James v. Commonwealth, 53 Va. App.

671, 678, 674 S.E.2d 571, 575 (2009)).

       Further, defendants need not act in tandem while engaged in a conspiracy. When

               it has been shown that the defendants “by their acts pursued the same
               object, one performing one part and the others performing another
               part so as to complete it or with a view to its attainment, the [fact
               finder] will be justified in concluding that they were engaged in a
               conspiracy to effect that object.”

Brown v. Commonwealth, 10 Va. App. 73, 78, 390 S.E.2d 386, 388 (1990) (quoting Amato v.

Commonwealth, 3 Va. App. 544, 552, 352 S.E.2d 4, 9 (1987)).

                               (1) Conspiracy to Commit Abduction

       Appellant argues that the Commonwealth failed to prove that he and the other men had an

agreement to force R.S. to return to the Red Roof Inn when they went to her hotel room. He claims

that R.S.’s abduction was a “spur of the moment act” by McClenny. However, the unrebutted

evidence belies his assertion. The three men went to the hotel room armed with a handgun. They

                                                 -9-
confronted and castigated R.S. and told her that she had no choice but to return to the Red Roof Inn

with them. When R.S. demurred, appellant exhorted one of the men to pistol-whip her.

       In support of his argument, appellant cites to the lack of direct evidence about a

conversation among the men before they went to R.S’s hotel room. However, “[t]he fact that there

is no evidence of an actual conversation between [the parties] is not dispositive [because] a

conspiracy may be inferred by actions alone.” Charity v. Commonwealth, 49 Va. App. 581, 587,

643 S.E.2d 503, 505-06 (2007). Further, “[c]ircumstantial evidence is as acceptable to prove guilt

as direct evidence.” Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980).

       When appellant and the other men joined Bethel at R.S.’s hotel room, they were aware that

R.S. left the Red Roof Inn because she was upset with the group. There was sufficient evidence for

the fact finder to conclude that appellant went to the hotel room with the other men under an

agreement to coerce R.S. to return to the Red Roof Inn. “[T]he evidence of motive, time, place,

means and conduct all concurred to form an unbroken chain which established a conspiracy to

commit the crime[].” Sam v. Commonwealth, 13 Va. App. 312, 320, 411 S.E.2d 832, 836 (1991)

(finding sufficient circumstantial evidence of conspiracy to commit abduction where the defendant’s

actions supported the conclusion that he was engaged in a conspiracy, despite the lack of direct

evidence of a prior agreement).

                             (2) Conspiracy to Commit Sex Trafficking

       Code § 18.2-357.1(A) punishes anyone who “solicits, invites, recruits, encourages, or

otherwise causes or attempts to cause a person [to commit prostitution].” The court found the

Commonwealth’s evidence proved that the group was engaged in sex trafficking and appellant “was

involved with that and did encourage that.” Evidence supports the court’s conclusion that appellant

was involved in a conspiracy at least to “encourage” R.S. to continue to commit prostitution.




                                                - 10 -
        The Commonwealth was not required to show a specific conversation among the men

establishing the conspiracy. “A conspiratorial agreement ‘often may only be established by

circumstantial and indirect evidence including the overt actions of the parties.’” Johnson, 58

Va. App. at 636, 712 S.E.2d at 756-57 (quoting Jones v. Commonwealth, 279 Va. 295, 301, 687

S.E.2d 738, 741 (2010)).

        Appellant was a member of the group staying in two rooms at the Red Roof Inn, rented with

R.S.’s prostitution earnings. R.S. testified that the men told her “she couldn’t live for free” and

appellant’s co-conspirator set up a prostitution advertisement for her. Appellant and the other men

temporarily vacated one of the rooms when R.S. was prostituting. When R.S. attempted to leave the

group, appellant confronted her with the other men. His contention that he did not know that the

men were going to pressure R.S. to return and continue prostituting was rejected by the fact finder.

Appellant was involved in the argument and, in fact, encouraged the man holding the gun to

pistol-whip R.S. when she indicated that she did not want to “work for them.” R.S. testified that

after she returned to the Red Roof Inn, she began taking prostitution appointments again because

“[t]hat’s what [she] was there for.” Appellant benefitted monetarily from her activities; he was

provided a hotel room that was financed by her earnings. Accordingly, the circumstantial evidence

proved that appellant formed an agreement with his co-conspirators to encourage and coerce R.S. to

commit prostitution.

                        D. Sufficiency of Evidence to Prove Use of a Firearm

        It is unlawful “for any person to use . . . any pistol, shotgun, rifle, or other firearm or display

such weapon in a threatening manner while committing or attempting to commit [various

enumerated felonies, including] abduction.” Code § 18.2-53.1. Appellant asserts that because the

evidence was insufficient to find him guilty of abduction, it was therefore insufficient to find him

guilty of using a firearm in the commission of an abduction.

                                                  - 11 -
        We have found that the evidence was sufficient to find appellant guilty of abduction as a

principal in the second degree. Additionally, we note that it is not necessary for a defendant to

physically possess a firearm to be convicted under Code § 18.2-53.1, if the defendant is acting in

concert with the gunman to commit the underlying felony. Carter v. Commonwealth, 232 Va. 122,

125-26, 348 S.E.2d 265, 267-68 (1986). “[E]ach participant in [a] crime may be held accountable

for the actions of the other participants.” Davis v. Commonwealth, 36 Va. App. 291, 296, 549

S.E.2d 631, 633 (2001). See also Spradlin v. Commonwealth, 195 Va. 523, 528, 79 S.E.2d 443,

445 (1954) (“If there is concert of action with the resulting crime one of its incidental probable

consequences, then . . . all who participate in any way in bringing it about are equally answerable

and bound by the acts of every other person connected with the consummation of such resulting

crime.”). The fact that appellant was not the person who held the gun to R.S.’s head is immaterial.

He was acting in concert with the man who was threatening and detaining her. Therefore, the

evidence was sufficient to convict appellant of the crime of using a firearm in the commission of an

abduction.

                                             CONCLUSION

        Because we find that the court did not err in determining that the evidence was sufficient to

establish the elements of the offenses for which he was on trial, we affirm appellant’s convictions

for abduction, sex trafficking, conspiracy to commit abduction and sex trafficking, and use of a

firearm in the commission of an abduction. We remand for the limited purpose of correcting the

clerical error referenced in footnote one.

                                                                              Affirmed and remanded.




                                                 - 12 -
