                   COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Clements and Senior Judge Coleman
Argued at Richmond, Virginia


TYRONE ERNEST JACKSON
                                          MEMORANDUM OPINION * BY
v.   Record No. 2994-99-2              JUDGE JEAN HARRISON CLEMENTS
                                                MAY 8, 2001
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                      Thomas N. Nance, Judge

          Patricia P. Nagel, Assistant Public Defender
          (David J. Johnson, Public Defender, on
          brief), for appellant.

          Robert H. Anderson, III, Senior Assistant
          Attorney General (Mark L. Earley, Attorney
          General, on brief), for appellee.


     Appellant Tyrone Ernest Jackson was convicted in a bench

trial of abduction in violation of Code § 18.2-47.     On appeal, he

contends the evidence was not sufficient to sustain the

conviction.   We disagree and affirm the conviction.

     As the parties are fully conversant with the record in this

case, and because this memorandum opinion carries no precedential

value, this opinion recites only those facts necessary to a

disposition of this appeal.

     When the sufficiency of the evidence is challenged on appeal,

we review the evidence "in the light most favorable to the


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Commonwealth, granting to it all reasonable inferences fairly

deducible therefrom."   Bright v. Commonwealth, 4 Va. App. 248,

250, 356 S.E.2d 443, 444 (1987).   We may not disturb the

conviction unless it is plainly wrong or unsupported by the

evidence.   Sutphin v. Commonwealth, 1 Va. App. 241, 243, 337

S.E.2d 897, 898 (1985).   We are further mindful that the

"credibility of a witness, the weight accorded the testimony, and

the inferences to be drawn from proven facts are matters solely

for the factfinder's determination."    Keyes v. City of Virginia

Beach, 16 Va. App. 198, 199, 428 S.E.2d 766, 767 (1993).

     Code § 18.2-47 provides in pertinent 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" . . . .

     Jackson first contends that the evidence was insufficient to

support his abduction conviction because any detention by him of

the victim, Byron Knight, was merely incidental to the restraint

inherent in the act of assault upon Knight, an offense arising out

of the same conduct and for which he had already been successfully

prosecuted. 1


     1
       The record before us does not contain the record or
transcript of the prior assault conviction. Knight and Jackson
both testified that Jackson was charged with assault and
battery. Upon inquiry by the trial court as to whether Jackson
had been convicted on the assault charge, the Commonwealth
conceded that he was found guilty of assault in the district
court.

                                - 2 -
        Assault, an offense at common law, "require[s] proof of an

attempt or offer to do bodily harm through an unlawful show of

force or violence."      Johnson v. Commonwealth, 13 Va. App. 515,

517, 412 S.E.2d 731, 732 (1992).      "Abduction, on the other hand,

require[s] proof of asportation or detention while assault [does]

not."    Id.

        However, in Brown v. Commonwealth, 230 Va. 310, 337 S.E.2d

711 (1985), the Supreme Court recognized that the legislature did

not intend, in enacting Code § 18.2-47, "to make the kind of

restraint which is an intrinsic element of crimes such as rape,

robbery, and assault a criminal act, punishable as a separate

offense."      Id. at 314, 337 S.E.2d at 713.   Accordingly, the Court

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.

Id. at 314, 337 S.E.2d at 713-14.

        In this case, the Commonwealth's evidence consisted solely of

the testimony of Byron Knight, the victim.      On July 6, 1999,

Knight, the program director of the Adult Rehabilitation Center at

the Salvation Army in Richmond, interviewed Jackson, who had

applied for admission into the long-term rehabilitation program.


                                   - 3 -
The interview was conducted in Knight's office.   Knight sat behind

his desk and Jackson, who earlier that day had completed the

Salvation Army's nine-page application for admission that

requested personal information about him and his family, sat in a

chair opposite Knight, next to the door.   The door was ajar about

twelve inches.   Knight interviewed Jackson for approximately ten

minutes and determined that Jackson was not appropriate for

admission into the program.

     When Knight told Jackson that he was not suitable for the

program, Jackson became agitated and demanded the admissions

papers and Knight's notes.    Knight refused Jackson's demand,

saying the papers belonged to the Salvation Army.   Knight then

became anxious because of the "personality change in Jackson" and

stood up to leave.

     However, as Knight attempted to leave, Jackson stood up,

closed the door, and put his foot against it.    When Knight grabbed

the doorknob to open the door, Jackson hit Knight's hand off the

knob and again demanded "his" papers.   Knight then went to the

other end of the office to telephone for help.    Jackson followed

Knight, wrapped his arms around him trying to grab the papers, and

put his finger on the button on the telephone to prevent Knight

from making a call.   The two made several trips back and forth

between the door and the telephone, each time Jackson preventing

Knight from leaving the office.   Finally, Jackson grabbed the

papers and left the office.

                                - 4 -
     Knight testified that he told Jackson he wanted to leave the

office.   He also yelled for help, he said, but no one responded.

Knight also testified that during the incident, in an effort to

calm Jackson, he tried to tear the papers up himself.      However,

Knight was able to leave the office only after Jackson had left.

Knight estimated that he was trapped in his office for

approximately five to ten minutes.       On cross-examination, Knight

testified that, while at one point in the tussle Jackson's hand

brushed the back of his head, Jackson did not hit him in the face

during the incident.

     Testifying in his own defense at trial, Jackson said that he

became frustrated and disappointed when Knight refused to admit

him into the program because he had been told in a telephone

interview before going to the rehabilitation center that he had

already been accepted into the program.      He demanded the papers

back, he said, because they contained his personal information,

which he felt belonged to him.    Jackson denied at trial that he

closed the door to Knight's office, blocked Knight's access to the

door, or prevented Knight from using the telephone.      According to

his testimony, all he did was grab the papers off Knight's desk

and leave the office.

     Officer Robert Rogers, testifying for the defense, said

Knight told him that Jackson struck Knight in the left side of the

face, grabbed the papers, and left the office.      Officer Rogers



                                 - 5 -
also testified, though, that Knight told him that Jackson would

not let him leave the office for approximately ten minutes.

     The trier of fact is not required to accept a party's

evidence in its entirety, but is free to believe or disbelieve in

part or in whole the testimony of any witness.   Rollston v.

Commonwealth, 11 Va. App. 535, 547, 399 S.E.2d 823, 830 (1991).

Thus, the trial court was not required to accept Jackson's version

of what occurred.   "In its role of judging witness credibility,

the fact finder is entitled to disbelieve the self-serving

testimony of the accused and to conclude that the accused is lying

to conceal his guilt."    Marable v. Commonwealth, 27 Va. App. 505,

509-10, 500 S.E.2d 233, 235 (1998).

     We hold that the trial court, as the trier of fact, could

have reasonably concluded from the evidence before it that Jackson

abducted, as well as assaulted, Knight and that the commission of

the abduction was complete when Jackson shut the door and put his

foot against it to keep Knight from leaving the room.   That

initial act of detention, we find, was not inherent in the later

acts of assault.    Had Knight surrendered the papers to Jackson at

that point, no assault would have occurred.   Only after that

initial, separate act of detention did Jackson's actions,

including his hitting Knight's hand off the doorknob and wrapping

his arms around Knight, constitute acts of assault involving

incidental acts of restraint.   We hold, therefore, that, because

it was based on different conduct than his earlier prosecution for

                                - 6 -
assault, Jackson's successive prosecution for abduction was not

barred.

       Jackson further contends that the evidence was insufficient

to support his abduction conviction because he thought the papers

containing his "personal, confidential" information belonged to

him.       He concludes, therefore, that his detention of Knight to get

them back was justified or excused.

       The bona fide claim of right defense that Jackson asserts

here has been applied in Virginia in the context of negating

criminal intent to commit a crime where the unlawful "taking" of

property is an element of the crime.       See, e.g., Butts v.

Commonwealth, 145 Va. 800, 133 S.E. 764 (1926).      Jackson, however,

readily admits in his brief on appeal that there is no authority

in Virginia for a defense of bona fide claim of right allowing the

abduction of an individual in order to recover property.         Nor do

we find such authority, and we decline Jackson's invitation to

adopt such a defense here. Furthermore, the record fully supports

the trial court's determination that the abduction was not legally

justified or excused. 2




       2
       Jackson also argues on appeal that the evidence was
insufficient to show that he intended to deprive the victim of
his liberty. However, this argument was never presented to the
trial court. Thus, it was not properly preserved, and Rule
5A:18 bars our consideration of it on appeal. Furthermore, we
find no reason in the record to invoke the "good cause" or "ends
of justice" exceptions.


                                   - 7 -
     We hold, therefore, that the evidence was sufficient to prove

beyond a reasonable doubt that Jackson committed the subject

abduction.   Additionally, we hold that the conviction is not

plainly wrong.   Accordingly, we affirm the conviction.

                                                          Affirmed.




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