                  COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Agee and Senior Judge Hodges
Argued at Chesapeake, Virginia


EDGAR ROLAND BARFIELD
                                            MEMORANDUM OPINION * BY
v.   Record No. 1050-00-1                 JUDGE JAMES W. BENTON, JR.
                                               FEBRUARY 20, 2001
COMMONWEALTH OF VIRGINIA


       FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                    A. Bonwill Shockley, Judge

          Shawn R. Salyer (Louis W. Kershner &
          Associates, P.C., on brief), for appellant.

          Leah A. Darron, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     The sole issue presented by this appeal is whether the

evidence was sufficient for the trial judge to convict Edgar

Barfield of abduction in violation of Code § 18.2-47.    We affirm

the conviction.

                                I.

     "Where the sufficiency of the evidence is challenged after

conviction, it is our duty to consider it in the light most

favorable to the Commonwealth and give it all reasonable

inferences fairly deducible therefrom."    Higginbotham v.

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).    So


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
viewed the Commonwealth's evidence proved that a boy, who was

eight years old, was fighting Barfield's son, who was six years

old, when Barfield arrived.    After Barfield got out of his car to

make an inquiry, the boy ran.    Barfield chased and caught the boy

and loudly asked why he had taken Barfield's son's knives.   When

the boy denied taking the knives, Barfield said he intended to

take the boy home to his parents.    The boy said "No" and held onto

a fence to resist being taken.    Barfield then grabbed the boy by

the waist and forcefully pulled him from the fence.    He then

carried the boy to his car.

     At the car, the boy freed himself and moved to the middle of

the street.   Barfield again grabbed the boy and held him to the

ground.   One witness testified that Barfield "held [the boy] on

the ground" such that the boy "was on his belly, and . . .

Barfield took both of his hands and set them on the [boy's] back

and just held them there."    Barfield held the boy in this manner

"for about a minute."   Another witness "saw a child being hurt and

being held down by an adult."    She testified that Barfield was

holding the boy who had moved into a fetal position.   A witness

testified that Barfield told his son to kick the boy's head and

held the boy while his son kicked him.   Barfield then released the

boy, ran to his vehicle, and drove away.

     Barfield later told the police that when he arrived from

work, his son was crying and complaining that the boy, who was the

son's friend, had stolen knives from their house.   Barfield said

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he tried to take the boy home to his parents but the boy refused

to go.   Barfield then related the following events:

           I had him by one arm; and I said [to my
           son], slap him. He was getting on a
           bicycle, and [my son] pushed him off. I
           said, If you were my boy, I would whip your
           ass. [My son] might have kicked him. I
           continued to talk to him for a little bit,
           and then . . . [my son] may have slapped
           him, and he fell to the ground, and he may
           have kicked him. I never held him down. I
           just had him by one arm and that was just to
           keep him from kicking and stabbing me with a
           fork. . . . There was a thirteen-year-old
           boy. He may have kicked him upside down and
           shook him.

     At the conclusion of the evidence, the trial judge

convicted Barfield of abduction.    This appeal followed.

                                II.

     In pertinent part, Code § 18.2-47 provides as follows:

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

     Citing Brown v. Commonwealth, 230 Va. 310, 337 S.E.2d 711

(1985), Barfield contends that the evidence was insufficient to

convict him of abduction because the amount of force he used was

incidental to an assault.   The holding in Brown is not germane

to the resolution of this appeal.     The issue in Brown concerned

whether the conviction for abduction constituted double jeopardy




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where the accused was convicted of both abduction and rape.       See

id. at 312-13, 337 S.E.2d at 713.    The Court held as follows:

           [O]ne 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 714.    Here, however, Barfield was

charged with and convicted of only the offense of abduction.      We

only need to determine whether the evidence was sufficient to

prove abduction as defined in Code § 18.2-47.

     Construing Code § 18.2-47, the Supreme Court held as

follows:

           Code § 18.2-47 supersedes the common law.
           We shall construe it according to its plain
           meaning and evident intent. Because it
           casts its several prohibited acts in the
           disjunctive, each is independently
           sufficient to support a conviction.
           Accordingly, the physical detention of a
           person, with the intent to deprive him of
           his personal liberty, by force,
           intimidation, or deception, without any
           asportation of the victim from one place to
           another, is sufficient. . . .

              We recognize . . . that in rape, robbery,
           and assault cases there is usually some
           detention, and often a seizure, of the
           victim. The constitutional problems which
           may be created by such an overlapping of
           crimes are, however, not before us for
           decision in this case.




                                 - 4 -
Scott v. Commonwealth, 228 Va. 519, 526, 323 S.E.2d 572, 576

(1984).

     Several witnesses testified that Barfield restrained the

boy on the ground while his son kicked the boy.    One of the

witnesses heard Barfield tell his son to kick the boy and

testified that Barfield's son kicked the boy's head for

approximately a minute while Barfield held the boy.    Barfield's

own statement to the police, while denying that he restrained

the boy on the ground, relates that Barfield held the boy and

told his son to slap him.   This evidence was sufficient for the

trial judge to find beyond a reasonable doubt both that Barfield

detained the boy and that he did so with the intent to deprive

the boy of his personal liberty while his son, at Barfield's

direction, assaulted the boy.

     Barfield argues that Johnson v. Commonwealth, 221 Va. 872,

275 S.E.2d 592 (1981), requires that we reverse his conviction.

In that case, the Supreme Court reversed a conviction for

abduction because an intruder held a woman "in furtherance of

his sexual advances and not with the intent to deprive her of

her personal liberty, although such a deprivation did occur

momentarily."   Id. at 879, 275 S.E.2d at 597.    The intruder, as

shown by his actions, had no intention of detaining because he

released her when she resisted.   In this case, Barfield not only

detained the boy, but he had the requisite intent to make that

detention a crime.   He held the boy on the ground while ordering

                                - 5 -
his son to kick him.   This action satisfies the requirements of

Code § 18.2-47.

     Accordingly, we affirm the conviction.

                                                        Affirmed.




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