                                          COURT OF APPEALS OF VIRGINIA


            Present: Judges Petty, O’Brien and AtLee
PUBLISHED


            Argued at Lexington, Virginia


            DONALD KEITH EPPS
                                                                                  OPINION BY
            v.     Record No. 0148-15-3                                    JUDGE MARY GRACE O’BRIEN
                                                                                  MAY 31, 2016
            COMMONWEALTH OF VIRGINIA


                             FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
                                          James J. Reynolds, Judge

                           M. Lee Smallwood, II (Office of the Public Defender, on brief), for
                           appellant.

                           Kathleen B. Martin, Senior Assistant Attorney General (Mark R.
                           Herring, Attorney General, on brief), for appellee.


                   Donald Keith Epps (“appellant”) was indicted for one count of abduction, in violation of

            Code § 18.2-47, and one count of assault and battery, in violation of Code § 18.2-57. Appellant

            pled guilty to assault and battery and was found guilty of abduction following a bench trial. The

            court sentenced appellant to five years of incarceration in the state penitentiary with two years

            suspended for abduction and twelve months in jail with six months suspended for assault and

            battery. Appellant filed a post-trial motion to dismiss his convictions on the ground that the court

            lacked jurisdiction because the order recording the indictments against him had not been entered at

            the time of trial. The court denied his motion, and this appeal followed.

                                                   I. Material Proceedings

                   The grand jury met on October 27, 2014, and returned indictments in open court against

            appellant for abduction and assault and battery. The indictments were signed by the grand jury

            foreman. Following a bench trial for abduction, the court found appellant guilty and also accepted
his plea of guilty to assault and battery on November 17, 2014. His sentencing hearing occurred on

January 5, 2015.

       On January 7, 2015, appellant’s counsel moved to dismiss the convictions because the order

reflecting the actions of the grand jury on October 27, 2014, had not been entered prior to trial.1 On

January 13, 2015, the court entered the order memorializing the grand jury’s actions (“the

presentment order”). Following a hearing on January 22, 2015, the court denied appellant’s motion

to dismiss his convictions. The court signed the sentencing order on January 23, 2015.

                                        II. Assignments of Error

       Appellant asserts the following errors:

               I.    The trial court erred in conducting a trial of Mr. Epps when it
                     lacked the jurisdiction to do so because no order recording the
                     presentation of the indictment in open court had been entered.

              II.    The trial court erred in concluding that the facts were sufficient to
                     convict Mr. Epps of abduction where Mr. Epps entered a guilty
                     plea to assault and battery, all of the conduct that arguably would
                     support a conviction for abduction was also conduct that was
                     assaultive, and therefore there was no offense of abduction
                     pursuant to the statutory and case law of the offense.

                                                III. Facts

       We consider the facts, as we are bound to do, in the light most favorable to the prevailing

party, the Commonwealth. Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586

(2008). So viewed, the evidence established the following: late in the evening of August 29, 2014,

appellant and Latisha Williams were in a bedroom in her residence in Danville. The parties

previously had a romantic relationship.

       Williams testified that a dispute arose after appellant accused her of having sex with his

sister’s boyfriend. Appellant used Williams’s cell phone to call his sister. Williams then asked



       1
           Appellant did not contest the form or content of the indictments against him.
                                                  -2-
appellant to leave, and he became upset, “jumped on” her, and began to strangle her. Williams tried

to kick appellant, but he grabbed her foot and tried to bend one of her toes back. He eventually

released her foot and bit her finger.

        Williams testified that after she unsuccessfully attempted to retrieve her cell phone from

appellant, she ran from the bedroom and tried to leave the residence through a door in the kitchen.

Appellant pushed her away from the door, told her he was not going to allow her to leave, and

began to punch her. When he saw that she was bleeding as a result of his punches, he stopped,

called his brother, and left the residence. Williams testified that the incident in the kitchen lasted for

approximately ten minutes. At the close of the Commonwealth’s case, appellant made a motion to

strike the evidence. The court denied his motion.

        According to appellant, Williams initiated the altercation by kicking him after he accused

her of giving him a sexually transmitted disease. He admitted that he repeatedly “shoved” Williams

onto the bed, but claimed that she bent her own toe back. Appellant claimed that he left the

bedroom first, and only assaulted Williams after she grabbed him from behind in the hallway

leading to the kitchen. He denied that he ever prevented her from leaving. Appellant renewed his

motion to strike the evidence at the conclusion of his case. The court denied the motion and found

appellant guilty of abduction.

                                              IV. Analysis

                       A. Failure to Timely Record Presentation of Indictment

        Appellant contends that his indictment for abduction was invalid because the presentment

order was not signed and entered prior to his trial.2 “The validity of the indictment is a question of




        2
         Appellant does not expressly restrict the assignment of error to the abduction charge,
but as he was tried only for abduction, and pled guilty to the assault and battery charge, we limit
our consideration of appellant’s argument to the abduction charge.
                                                -3-
law which we review de novo.” Howard v. Commonwealth, 63 Va. App. 580, 583, 760 S.E.2d 828,

829 (2014).

        Code § 19.2-217 provides that “no person shall be put upon trial for any felony, unless an

indictment or presentment shall have first been found or made by a grand jury in a court of

competent jurisdiction.” Additionally, Rule 3A:5(c) of the Supreme Court of Virginia directs that

“[t]he indictment shall be endorsed ‘A True Bill’ or ‘Not a True Bill’ and signed by the foreman.

The indictment shall be returned by the grand jury in open court.” Appellant does not contest that

the grand jury returned an indictment against him on October 27, 2014, and that the indictment was

presented in open court prior to trial. He does not assign error to the content of the indictment, but

he asserts that the trial court’s delayed entry of the presentment order invalidates his conviction.

Appellant contends that because the order was not entered prior to trial, the court did not have

jurisdiction when it conducted the bench trial.3

        Appellant relies on Cawood’s Case, 4 Va. (2 Va. Cas.) 527 (1826), and Simmons v.

Commonwealth, 89 Va. 156, 15 S.E. 386 (1892), to support his contention that he was not properly

indicted by the grand jury and his conviction is therefore void. In Cawood, the defendant’s name

was not included on the order that listed the indictments returned by the grand jury on April 26-27,

1824. 4 Va. (2 Va. Cas.) at 541-42. The Supreme Court found that Cawood had not been properly

indicted because there was no record that an indictment against him had ever been returned in open

court. Id. at 546. Because the court found it was “essential that a record should be made of the

[grand jury’s] finding on the Order Book,” the defendant’s conviction was reversed. Id. at 542, 547.




        3
         While Code § 19.2-227 provides that “[j]udgment in any criminal case shall not be
arrested or reversed upon any exception or objection made after a verdict to the indictment or
other accusation, unless it be so defective as to be in violation of the Constitution,” this statute
does not control because appellant’s argument does challenge the jurisdiction of the court to
conduct the trial.
                                                 -4-
        Likewise, in Simmons, there was no evidence that the indictment, which had been endorsed

by the foreman as a “true bill,” had ever been presented in court and “the fact recorded.” Simmons,

89 Va. at 157, 15 S.E. at 387. No valid indictment could be found in the Lee County Record Book.

Id. Based on this omission, the Supreme Court found that “the accused [was] not indicted.” Id.

        “[T]here is no constitutional requirement that prosecutions for felony be by indictment. The

requirement is merely statutory [and] may be waived.” Livingston v. Commonwealth, 184 Va. 830,

836, 36 S.E.2d 561, 564 (1946) (citation omitted). Code § 17.1-513 provides that “[t]he circuit

courts shall . . . have original jurisdiction of all indictments for felonies.” Therefore, the

requirement that a felony prosecution be initiated pursuant to an indictment is statutory, not

constitutional. Accordingly, appellant’s reliance on Cawood and Simmons is inapposite.

        In Hanson v. Smyth, 183 Va. 384, 387-89, 32 S.E.2d 142, 143-44 (1944), the defendant

challenged his conviction in a habeas corpus proceeding, and alleged that the record did not show

that the indictment against him was returned in open court after the grand jury met. The Supreme

Court found that because an indictment may be waived, it is not jurisdictional. Id. at 390-91, 32

S.E.2d at 144. The Court noted that the current version of Code § 19.2-217 was amended in 1940 to

allow a defendant to waive indictment and presentment. Id. at 390, 32 S.E.2d at 144. The Court

interpreted this amendment as the “clear expression of the legislative policy that the requirement of

an indictment in the prosecution for a felony may be waived, and hence is not jurisdictional.” Id.

As a result, the Court held that “the failure of the record to show affirmatively that the indictment

was returned into court by the grand jury is not such a defect as will render null and void the

judgment of conviction based thereon.” Id. at 390-91, 32 S.E.2d at 144.

        The validity of an indictment is established by the grand jury returning a true bill in open

court and the subsequent entry and recordation of an order memorializing those events. The

Supreme Court has found that a mere procedural error does not nullify an otherwise valid

                                                   -5-
indictment. See Reed v. Commonwealth, 281 Va. 471, 478-80, 706 S.E.2d 854, 858-59 (2011)

(finding indictments valid, despite the lack of a signature by a grand jury foreman because the order

showed that the indictments were returned in open court as true bills). In Howard v.

Commonwealth, 63 Va. App. 580, 582-83, 760 S.E.2d 828, 829 (2014), the defendant claimed that

the trial court lacked jurisdiction over him because the indictments were not read aloud when they

were returned in court, although they were signed by the foreman of the grand jury and an order

memorializing those events was subsequently entered by the judge. We held that when indictments

are returned in court, “[r]eading the indictments aloud verbatim is not required for [an] indictment to

be valid,” what “is important is that the indictment be ‘presented’ in court.” Id. at 585, 706 S.E.2d

at 830.

          Additionally, Code § 17.1-123(A), which addresses the signing and recording of court

orders, does not contain a timing requirement. The statute does not require that an order must be

recorded on the same day as the event it is memorializing to be valid. The Supreme Court has held

that

                 [n]o order made by the court or proceeding had in a case during a
                 term and entered by the clerk in the record book should be allowed to
                 become invalid, or to fail of effect, by the omission of the judge,
                 through inadvertence or neglect, to sign the record of the orders and
                 proceedings on the day on which it was made or took place.

Weatherman v. Commonwealth, 91 Va. 796, 798, 22 S.E. 349, 350 (1895).

          In the present case, appellant was properly indicted because the order entered on January 22,

2015 reflected that the grand jury met on October 27, 2014, and returned a true bill in open court on

the indictments against appellant. “A court speaks through its orders and those orders are presumed

to accurately reflect what transpired.” McBride v. Commonwealth, 24 Va. App. 30, 35, 480 S.E.2d

126, 128 (1997). Appellant does not assert that the content of the indictment is deficient in any

manner or that the indictment was not returned in open court. His sole contention is that the

                                                  -6-
presentment order had not been entered before he was tried on November 17, 2014. However,

because neither the statute, nor the rule, nor the case law contain a time requirement for entry of the

order, the timing of the recording of the order is merely a procedural requirement. Thus, the

delayed entry of the order is not a substantive violation that invalidates the indictment or deprives

the trial court of its jurisdiction over appellant.

                              B. Sufficiency of the Evidence of Abduction

        Appellant contends that the evidence was insufficient to find him guilty of abduction. He

asserts that any detention of the victim was incidental to the assault and battery and did not

constitute a separate offense.

                                          1. Standard of Review

        When reviewing the sufficiency of the evidence to support a conviction, “it is our duty to

consider [the evidence] in the light most favorable to the Commonwealth and give it all reasonable

inferences fairly deducible therefrom.” Boykins v. Commonwealth, 210 Va. 309, 311, 170 S.E.2d

771, 773 (1969). The issue is “whether the record contains evidence from which any ‘rational trier

of fact could have found the essential elements of the crime beyond a reasonable doubt.’” Young v.

Commonwealth, 275 Va. 587, 591, 659 S.E.2d 308, 310 (2008) (quoting Jackson v. Virginia, 443

U.S. 307, 319 (1979)). The trial court’s judgment “will not be set aside unless it appears from the

evidence that the judgment is plainly wrong or without evidence to support it.” Martin v.

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

        Additionally, “[w]hether an abduction is merely incidental to another crime is a question of

law. However, because no two crimes are exactly alike, determining whether an abduction is

incidental necessarily requires consideration of the historical facts of each case.” Hoyt v.

Commonwealth, 44 Va. App. 489, 496 n.4, 605 S.E.2d 755, 758 n.4 (2004). Therefore, the trial




                                                      -7-
court’s findings of historical fact are controlling but we review the court’s application of those facts

to the law de novo. Smith v. Commonwealth, 56 Va. App. 711, 721, 697 S.E.2d 14, 19 (2010).

                                       2. Evidence of Abduction

        Code § 18.2-47(A) provides that “[a]ny person who, by force, intimidation or deception, and

without legal justification or excuse, seizes, takes, transports, detains or secretes another person with

the intent to deprive such other person of his personal liberty . . . shall be deemed guilty of

‘abduction.’” The Commonwealth may prove assault and battery under Code § 18.2-57 by

establishing a ‘“wil[l]ful or unlawful touching’ of another.” Parish v. Commonwealth, 56 Va. App.

324, 330, 693 S.E.2d 315, 318 (2010) (quoting Wood v. Commonwealth, 149 Va. 401, 404, 140

S.E. 114, 115 (1927)).

        Appellant asserts that any detention of Williams that occurred was merely incidental to the

assault and battery and cannot, therefore, be the basis for an abduction conviction. The Virginia

Supreme Court has held that

                one 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). Further, “[t]he only

issue when abduction is charged alongside an offense for which detention is an intrinsic element is

whether any detention exceeded the minimum necessary to complete the required elements of the

other offense.” Lawlor v. Commonwealth, 285 Va. 187, 225, 738 S.E.2d 847, 869 (2013). The

issue becomes whether sufficient evidence exists to support the factfinder’s determination that a

defendant used greater restraint than that necessary to commit the simultaneously charged offense.

See Powell v. Commonwealth, 261 Va. 512, 541, 552 S.E.2d 344, 360-61 (2001).



                                                  -8-
        In the present case, the crime of assault and battery was concluded before the abduction

occurred. While there is a temporal connection between the two crimes, they did not occur

simultaneously. An assault and battery occurred in the bedroom, when appellant strangled Williams

and pushed her back on the bed. He continued to batter her by bending her toe and biting her finger.

At that point, the assault and battery was a completed crime.

        The trial court, as finder of fact, believed Williams when she testified that she fled down the

hallway and was pursued by appellant. We have recognized that “[t]he credibility of the witnesses

and the weight accorded the evidence are matters solely for the fact finder who has the opportunity

to see and hear that evidence as it is presented.” Sandoval v. Commonwealth, 20 Va. App. 133,

138, 455 S.E.2d 730, 732 (1995); see also Rogers v. Commonwealth, 183 Va. 190, 201-02, 31

S.E.2d 576, 580 (1944). Once Williams was in the kitchen, appellant obstructed her access to the

door that led outside and would not allow her to leave the residence. Clearly, this detention was

separate and apart from the assault and battery that had occurred in the bedroom.

        Williams testified that the parties were in the kitchen for approximately ten minutes. During

that time, as she was trying to get to the door, appellant blocked her exit and hit her in the mouth.

Further, he specifically told Williams that he was not going to allow her to leave. That statement

illustrates appellant’s intent to detain Williams. Blocking the kitchen door and detaining Williams

was not necessary to complete the crime of assault and battery that had occurred earlier in the

bedroom. The abduction occurred subsequent to appellant’s pursuit of Williams down the hall, as

she attempted to flee from him after he initially assaulted her. These were two distinct crimes,

committed at different times, even committed in different rooms of the house. We find that the

court did not err in convicting appellant of both assault and battery and abduction.




                                                  -9-
                                V. CONCLUSION

For the foregoing reasons, the decision of the trial court is affirmed.

                                                                          Affirmed.




                                        - 10 -
