                        COURT OF APPEALS OF VIRGINIA


Present:   Judges Bray, Bumgardner and Clements


WALLY NATHANIEL BOONE
                                           MEMORANDUM OPINION * BY
v.   Record No. 1677-01-1               JUDGE JEAN HARRISON CLEMENTS
                                                AUGUST 20, 2002
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                    Lydia Calvert Taylor, Judge

           (B. Cullen Gibson, on brief), for appellant.
           Appellant submitting on brief.

           (Jerry W. Kilgore, Attorney General; Eugene
           Murphy, Assistant Attorney General, on
           brief), for appellee. Appellee submitting on
           brief.


     Wally Nathaniel Boone was convicted in a bench trial of

abduction for pecuniary benefit in violation of Code § 18.2-48 and

use of a firearm while committing abduction in violation of Code

§ 18.2-53.1. On appeal, he contends the trial court erred in

ruling that the evidence was sufficient to convict him of

abduction and its attendant charge of use of a firearm in the

commission of abduction because the detention of the victim was

inherent in the commission of the robbery.    Finding no error, we

affirm the convictions.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     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 and incidents of the

proceedings as necessary to the parties' understanding of the

disposition of this appeal.

     Boone argues that taking money from the three cash registers

in the front of the Blockbuster Video store and then proceeding to

the back room and taking money from the safe there was one

continuous robbery.   He contends he needed an employee to open the

safe; consequently, ordering the victim to go from the cash

registers in the front of the store to the safe in the back of

store was restraint necessary to complete the robbery.   Thus, he

concludes, the trial court erred in finding the evidence

sufficient to convict him of abduction.

     When the sufficiency of the evidence is challenged on appeal,

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

Commonwealth, granting to it all reasonable inferences fairly

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

250, 356 S.E.2d 443, 444 (1997).   We will not disturb a 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).

     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

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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.

     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.   See Jones v.

Commonwealth, 13 Va. App. 566, 572, 414 S.E.2d 193, 196 (1992).      A

defendant may be convicted of abduction in addition to robbery if

the victim's detention is "greater than the restraint that is

intrinsic in a robbery."    Cardwell v. Commonwealth, 248 Va. 501,

511, 450 S.E.2d 146, 152 (1994).    Moreover, we have held that

asportation to facilitate the commission or completion of a

robbery is not an element inherent in, or necessary to, the

robbery.   See Phoung v. Commonwealth, 15 Va. App. 457, 462, 424

S.E.2d 712, 715 (1992).    Likewise, we have held that

"asportation to decrease the likelihood of detection is not an

act inherent in or necessary to the restraint required in the




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commission of" the related crime.        Coram v. Commonwealth, 3 Va.

App. 623, 626, 352 S.E.2d 532, 534 (1987).

     Here, the evidence proved that Boone entered the

Blockbuster Video store, pulled out a gun, and ordered King

Solomon Williams and Yolanda Holtz to remove the money from the

three registers in the front of the store and place it in a blue

and white Blockbuster bag.    Holtz, the store manager and only

person who could open the registers, did as she was ordered, as

did Williams.    Four customers were in the rear section of the

store.    Boone asked Holtz "if there was anyone else in the

back."    When Holtz said no, Boone said, "Let's walk to the

back."

         Once they were in the office at the back of the store,

Boone ordered Williams to rip the phone cord out of the wall and

sit down.    Boone told Holtz to open a safe that was in the

office and remove the cash.    Holtz did so, placing the money

from the safe into the same Blockbuster bag that contained the

other money from the front registers.       Boone told Holtz to give

him the store's surveillance tape.       He put the tape in the bag,

told the two employees to "have a nice night," and walked out of

the store.

     Upon seeing on the store's security screen that Boone had

left the store, Holtz ran out of the office to the front of the

store.    She told the customers the store had been robbed and



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asked them to leave.   She reported the crime to a security guard

who was walking past the front of the store.

     The trial court concluded that the robbery of Holtz was

complete when she surrendered the money from the three cash

registers to Boone.    Boone, the court found, did not know about

the safe in the back office and was not looking for a safe when

he ordered Holtz into the back of the store.   Rather, the court

reasoned, because there were customers in the store, Boone

ordered Holtz and Williams "from the front to the back of the

store to keep them from alerting the customers that a robbery

was in progress."   The court also observed that Boone's ordering

Williams to rip the phone cord out of the wall and directing

Holtz to surrender the incriminating surveillance tape were

consistent with his desire to prevent the employees from

alerting the customers or the police about the robbery and from

identifying him as the robber.

     Based upon our review of the record, we cannot say that the

trial court's judgment was plainly wrong or without credible

evidence to support it.   Because there is no evidence in the

record to show that Boone was aware that there was a safe in the

back of the store, the trial court could properly find from the

evidence presented that Boone's detention and asportation of

Holtz to the back of the store facilitated the commission or

completion of the robbery.   The trial court was also entitled to

find that Boone's detention and asportation of Holtz, like his

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having the phone ripped from the wall and his retrieval of the

surveillance tape, decreased the likelihood of his detection.

Based on these findings, the trial court could then reasonably

conclude that Boone's abduction of Holtz was "separate and apart

from, and not merely incidental to" the restraint employed in

the crime of robbery.   Brown, 230 Va. at 314, 337 S.E.2d at

713-14.   We hold, therefore, that the evidence presented at

trial was sufficient to prove beyond a reasonable doubt that

Boone abducted Holtz.   Thus, the trial court did not err in

convicting Boone of abduction and its attendant charge of use of

a firearm in the commission of abduction.

      Accordingly, we affirm Boone's convictions.

                                                        Affirmed.




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