                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Frank, Petty and Senior Judge Bumgardner
UNPUBLISHED


              Argued at Chesapeake, Virginia


              JONATHAN KEYES
                                                                             MEMORANDUM OPINION* BY
              v.     Record No. 0671-13-1                                 JUDGE RUDOLPH BUMGARDNER, III
                                                                                   JULY 8, 2014
              COMMONWEALTH OF VIRGINIA


                               FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
                                              Bruce H. Kushner, Judge

                               M. Colston Jones, Assistant Public Defender, for appellant.

                               Robert H. Anderson, III, Senior Assistant Attorney General
                               (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.


                     Jonathan Keyes appeals his conviction of abduction, Code § 18.2-47. He maintains the

              evidence presented was insufficient to prove a detention or the intention to deprive the victim of

              her personal liberty. He also asserts that he acted with legal justification when he refused the

              police entry into his home. Concluding the trial court did not err, we affirm.

                     The defendant was living with Mari-Carroll Wolfe in a small townhouse in Chesapeake.

              Wolfe had broken her ankle in a car wreck and wore a non-weight bearing boot. She used a

              walker or crutches and could not to climb their stairs without assistance. Even with the

              defendant’s help, it took twenty-five minutes to get up a flight of stairs.

                     On the day of the incident, the defendant had been drinking. He returned to the townhouse

              in the evening, went back outside, and returned with a six-pack of beer. The defendant and

              Wolfe were “hanging out [outside] for a little while.” When they started to go back inside, the


                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
defendant threw Wolfe’s walker “inside of the residence so that I couldn’t get in the door.”

Eventually he brought it back, and she was able to get back inside. The defendant went to a

neighbor’s house. Wolfe decided not to wait up for him, crawled upstairs on her hands and

knees, and got into bed.

        When the defendant returned, he asked, “Where’s my beer?” Wolfe told him that she did

not have it, and the defendant left again. He returned and told her that he just hit a neighbor. The

defendant took Wolfe’s cell phone, which she needed because she could not stand up and she did

not have a home phone. When Wolfe tried to get her cell phone back, the defendant struck her

across the face. She fell to her hands and knees, and he kicked her three times.

        The defendant left. Wolfe yelled for him to return her phone and began to yell to the

neighbors for help. The defendant returned and threw the phone on the ground, but it no longer

worked. A few minutes later, he went upstairs and stood between Wolfe and the door to the

bedroom. He told her, “The police are here. Don’t answer the door. We didn’t call them.” The

defendant blocked her way to the bedroom door and told her that neither one of them was going

to let the police inside.

        Police responded to a “domestic assault in progress” complaint. When Officer Casey Hills

knocked on the door, the defendant responded, “You can’t come in. If you come through that door,

I’m going to shoot you . . . in the face.” He told the police that he had a gun and they had “better

not come inside” or he would shoot them. While a second officer talked to Keyes trying to pacify

him, Officer Hills saw Wolfe appear at the window almost directly above the door. She said that

she was up there and had been involved in the incident. As Wolfe began to talk with Officer Hills,

the defendant “was either on the stairs at all times where I [Wolfe] was not able to get by or

standing directly between me and the door to . . . my bedroom.”




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       As a safety measure and so he could see into the bedroom, Officer Hills backed away from

the townhouse. He explained the defendant “repeatedly came into the room where she was and into

[the officer’s] view. . . . He would make statements, yell at us.” At certain points, the defendant

“was right there on top of her.” The defendant repeatedly moved between the front door and the

bedroom. When the defendant went into the bathroom, Wolfe “popped the screen out of the

window frame and passed [the police] a key to the front door.” At one point, Officer Hills told

Wolfe to secure herself in the bedroom, but she replied that she “wasn’t able to.”

       The police talked with Wolfe through the bedroom window and asked her if she could get

out of the house. She said that she did not know, but would try. Wolfe crawled to the top of the

stairs planning to slide down the stairs on her bottom. The defendant was sitting on a step with his

back against the wall with his legs across the step blocking the stairway. He refused to move so

Wolfe could get past him. Wolfe crawled back to the bedroom and told the police that she could not

get out of the townhouse. The defendant also placed Wolfe’s crutches against the front door and

back door in such a way as to “barricade” the townhouse against any entry by the police officers.

       Approximately ninety minutes later, Wolfe told police that she would try to go downstairs

again. Wolfe then told the defendant that she was going down the stairs, and, this time, she was

able to make her way down the stairs without interference and go out the front door. The trial

court found the defendant guilty of abduction. The defendant filed a motion to set aside the verdict,

which the trial court denied. This appeal followed.

       The defendant argues that the evidence was insufficient to prove either a detention or the

intent to deprive the victim of her personal liberty. “When considering on appeal the sufficiency

of the evidence presented below, we ‘presume the judgment of the trial court to be correct’ and

reverse only if the trial court’s decision is ‘plainly wrong or without evidence to support it.’”




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Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc) (quoting

Davis v. Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002)).

       Code § 18.2-47(A) states:

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

       “To prove that the defendant intended to deprive the victim of her personal liberty, the

Commonwealth must prove that the defendant intended to deny the victim her freedom from bodily

restraint.” Burton v. Commonwealth, 281 Va. 622, 627, 708 S.E.2d 892, 894 (2011). “‘Intent is a

state of mind that may be proved by an accused’s acts or by his statements and that may be

shown by circumstantial evidence.’” Wilson v. Commonwealth, 249 Va. 95, 101, 452 S.E.2d

669, 673-74 (1995) (quoting Wright v. Commonwealth, 245 Va. 177, 193, 427 S.E.2d 379, 390

(1993), vacated and remanded on other grounds, 512 U.S. 1217, aff’d on remand, 248 Va. 485,

450 S.E.2d 361 (1994)). “[W]hether the required intent exists is generally a question for the trier of

fact.” Nobles v. Commonwealth, 218 Va. 548, 551, 238 S.E.2d 808, 810 (1977). “A trial judge’s

factual findings will not be disturbed on appeal unless plainly wrong or without evidence to support

them.” Smith v. Commonwealth, 17 Va. App. 68, 71, 435 S.E.2d 414, 416 (1993) (citation

omitted).

       The defendant hit a neighbor, and then returned inside where he struck and kicked Wolfe.

He took her phone, which was her only means of communication. She called for help out the

window. When the police responded to a complaint of a domestic assault in progress, the defendant

told Wolfe not to allow the police inside. The defendant told the police that they could not come in

or he would shoot them. The defendant repeatedly told police that he had a weapon. He

barricaded the doors with Wolfe’s crutches so the police could not enter.



                                                -4-
       Taken as a whole, the defendant’s actions and statements prove that he had the intent to, and

did, detain Wolfe. She was not able to leave the house when she wanted to do so. He slapped and

kicked her, took her phone, blocked her way, and would not let the police in the house. For an hour

and a half, the police were unable to get the defendant to allow Wolfe out of the apartment. Indeed,

the defendant’s brief states the defendant “sat on the stairway, which prevented Wolfe . . . from

going downstairs.”

       The defendant prevented Wolfe from leaving the house by standing between her and the

door to her bedroom and blocking her attempt to go down the stairs. Wolfe could not walk and

could only move about the townhouse by crawling. The trial court found that Wolfe “was

physically limited in her ability to extricate herself from the circumstances, but the combination of

behavior of [the defendant] was the ultimate force that deprived her of her liberty.” The trial court

did not err in holding that the defendant detained Wolfe and intended to deprive her of her physical

liberty. As in Commonwealth v. Herring, __ Va. __, __, 758 S.E.2d 225, __ (2014), “it is possible

to ‘detain’ a victim by having the victim remain within a house.”

       The defendant asserts the he was legally justified in lawfully refusing entry to the police

because they did not have a search warrant or arrest warrant. As he concedes on brief, justification

is an affirmative defense and the burden was on him to present sufficient evidence to create a

reasonable doubt.

       The defendant testified that a police officer knocked on his door and threatened to kick the

door in if the defendant did not open it. The defendant asked the officer if he had an arrest warrant

or search warrant, and the officer said no. The defendant testified that he put one of Wolfe’s

crutches under the door to prevent the officer from kicking in the door. The defendant explained

that he had been drinking and did not want to let the police in his home. He denied striking Wolfe




                                                 -5-
and denied having a weapon. He explained that he simply did not open the door because he did not

want to be arrested for drunk in public.

        “The word ‘justification’ simply means ‘[a] lawful or sufficient reason for one’s acts or

omissions;’ it sometimes is referred to as the ‘justification defense’ or the ‘necessity defense.’”

Taylor v. Commonwealth, 260 Va. 683, 690, 537 S.E.2d 592, 596 (2000) (quoting Black’s Law

Dictionary 870 (7th ed. 1999)). “It is well established that the trier of fact ascertains a witness’

credibility, determines the weight to be given to their testimony, and has the discretion to accept

or reject any of the witness’ testimony.” Street v. Street, 25 Va. App. 380, 387, 488 S.E.2d 665,

668 (1997) (en banc) (citation omitted). The trial court had an opportunity to see and hear the

witnesses. It found the police and victim’s versions of the events to be more credible than the

defendant’s version.

        The Commonwealth’s evidence showed that the police had come to investigate a

domestic assault. Prior to the police’s arrival, the defendant hit a neighbor and then hit and kicked

Wolfe. Once the police arrived, the defendant refused to cooperate, and the situation escalated.

He threatened to shoot the police and repeatedly threatened that he had a gun. The police officer

spoke with Wolfe, and she said that she could not leave. The defendant sat on the stairs, blocking

Wolfe’s way to the front door.

        The defendant threatened the police and prevented the defendant from leaving the house.

Whatever reason the defendant may have had to keep the police outside, it could not justify his

keeping the victim inside. The defendant was not justified in his actions. The evidence supports

the findings that the defendant was guilty beyond a reasonable doubt of abduction and that he acted

without legal justification. Accordingly, we affirm.

                                                                                              Affirmed.




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