                               COURT OF APPEALS OF VIRGINIA


Present: Judges Bumgardner, Humphreys and Senior Judge Hodges
Argued by teleconference


JOHN HENRY LEWIS
                                                              MEMORANDUM OPINION* BY
v.     Record No. 1770-03-2                                   JUDGE WILLIAM H. HODGES
                                                                    JUNE 29, 2004
COMMONWEALTH OF VIRGINIA


                  FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                               Margaret P. Spencer, Judge

                 William T. Linka (Richmond Criminal Law, on brief), for appellant.

                 Donald E. Jeffrey, III, Assistant Attorney General (Jerry W. Kilgore,
                 Attorney General, on brief), for appellee.


       John Henry Lewis, appellant, contends the trial court erred in refusing to give his proffered

jury instruction. We disagree and affirm the trial court.

                                          BACKGROUND

       Appellant was charged with three felonies committed against his wife, Sheila Lewis:

abduction, malicious wounding and grand larceny. At the time of the offenses, appellant and

Sheila were separated. Sheila had agreed to give appellant a ride to the hospital. Appellant met

Sheila at a nail salon. Sheila asked appellant to drive her car because her nails had just been

manicured.

       Sheila testified at trial that during the drive, appellant began berating her for having him

arrested and for allegedly having an affair. While they argued, appellant drove erratically on the

interstate, causing Sheila to become uncomfortable. Fearful of appellant, Sheila tried to get out


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
of the car after appellant exited the interstate and slowed down at a traffic signal. However,

appellant prevented her from doing so. Appellant grabbed Sheila’s hand and removed her

wedding band. According to Sheila, appellant then “took [her] finger and stuck it in his mouth.”

When Sheila eventually exited the car, she discovered that appellant had bitten off the tip of her

finger at the uppermost joint. Sheila ran in the opposite direction the car was heading, and

appellant “got out of the driver’s seat, came behind” her, grabbed her and ordered her to return to

her car.

       A bystander, Barbara Fajardo, heard Sheila scream and saw her jump out of the car and

run. Fajardo saw appellant chase Sheila, push her against a wall and place his hand over her

mouth. Appellant tried to force Sheila toward the car, but he eventually let her go and fled in

Sheila’s car.

       Appellant testified that “[t]he car was still rolling” when Sheila said she wanted to get

out, so he “grabbed her arm” and “tried to keep her from getting out of the [moving] car.” He

claimed it was traveling at 35 mph and testified:

                And then she pushed away trying to get out of the car, and her
                finger went in my mouth and cut my lip. Accidentally, I must have
                snapped down on it, and she snatched it out by the time I snapped
                down on it. . . . Then she ran out of the car.

Continuing, appellant testified: “Then I went and grabbed her, asked her what’s she doing.”

Regarding the finger, appellant stated, “She was trying to push to get away from me, and I

clamped down on her about the same time she snatched it out of my mouth.” Appellant denied

grabbing her hand and putting it in his mouth.

       At the conclusion of the presentation of evidence, appellant moved to strike the evidence.

As to the abduction charge, appellant argued:

                        Judge, there has to be a distinct crime of abduction and any
                other offense that is committed in the same presence, Judge. Here
                we have – the highest the Commonwealth’s evidence rises at this
                                                 -2-
                point, Judge, is we have this detention that’s taking place in close
                proximity and time to the alleged wounding of Ms. Lewis.
                        Judge, the Brown case at 230 Va. 310,1 Judge – and I have
                a copy for the Court – Judge, discusses a situation very similar to
                this, where a person is abducted and the car is taken away. The
                Virginia Supreme Court said that you can’t have a person be found
                guilty of abduction if it’s an incidental act of the predicate offense.
                        So I would suggest to the Court that the Commonwealth is
                saying that the abduction took place so that the wounding could
                take place, Judge. Then, at some point, we have no evidence
                before you that allows the Court to determine there are two
                distinctive offenses, and the abduction case must fall.

       The Commonwealth argued:

                         [T]he Commonwealth proved that the abduction was a
                separate and distinct crime [from] the malicious wounding. The
                evidence was that there were two abductions in this case. The first
                is the first struggle in the car that was previous to even the
                malicious wounding. The victim testified that she was trying to get
                out, he was trying to hold her into [sic] the car for a matter of
                moments, and there was a struggle there that ensued. Then the
                malicious wounding of her occurred.
                         Prior to the malicious wounding, the defendant struggled
                with her. He admitted he struggled with her for the express
                purpose of holding her in the car. And we would submit to the
                Court that was because he was angry and he wanted to continue to
                verbally assault her. At that time, the confrontation became more
                violent, which is when the malicious wounding happened.
                         Second, there’s another abduction that’s occurred after the
                car, after the victim was able to escape. She’s running down the
                highway and he is in close pursuit. At that time, he attaches
                himself to her body, detains her, says, get back in the car, get back
                in the car. He’s cursing her, threatening to kill her, and he’s doing
                this so that she cannot contact the police. This is a separate – two
                separate abductions, clearly distinct from the actual malicious
                wounding.

       The trial court denied the motion to strike the abduction charge, noting that the “issue of

credibility is for the jury.” The trial court found that the

                evidence is sufficient for the jury to find that there were two
                abductions, one that occurred in the car. Assuming the Court
                credits the defendant’s testimony that he only wanted to stop her
                from getting out of a car that was rolling, when she did get out, he

       1
           Brown v. Commonwealth, 230 Va. 310, 337 S.E.2d 711 (1985).
                                            -3-
                 chased her and tried to detain her . . . . So there is clearly evidence
                 of two abductions here.
                         There is no issue as to restraint. The Court has read Brown
                 v. Commonwealth, and the detention for either abduction – the
                 abduction in the car and the abduction outside the car – are
                 separate and apart from the restraint that would be employed for
                 any of the other offenses. The Court also notes that in Brown, one
                 of the offenses was rape, which actually requires force or
                 intimidation as an element of the offense.
                         So the motion is denied as to the abduction, because there
                 are two acts of the defendant, either of which would be sufficient
                 for the jury to find the defendant guilty of abduction. Again, the
                 defendant has testified and offered no explanation as to why he
                 didn’t let her get out of the car.

       The trial court granted Instruction 13, which defined the elements of abduction. It

tracked the language of Virginia Model Jury Instruction No. G4.100. Specifically, the

instruction required the Commonwealth to prove that appellant “by force did seize or detain

Sheila Lewis,” that he “did so with the intent to deprive [her] of her personal liberty,” and that

“[t]he defendant acted without legal justification or excuse.”

       Appellant proffered the following jury instruction:

                 If you find that the detention of Sheila Lewis is incidental to an
                 assault upon her, you may not find John Lewis guilty of abduction.

       The Commonwealth objected, arguing “it gives a presumption that there’s an assault, and

the charges are malicious wounding. So with the saying, incidental to assault, I think that

language clearly prejudices the Commonwealth. And secondly, Your Honor, it’s not a model

jury instruction from out of the model instruction book.”

       The trial court refused to give the instruction, finding it did not “accurately state the law,”

and if it did, “the Court would not have denied the motion to strike.” It also rejected the

instruction “for the reasons as stated by the Commonwealth.”

       The jury found appellant guilty of abduction, assault and battery and unauthorized use of

an automobile.


                                                  -4-
                                          DISCUSSION

       Upon review of jury instructions given or refused at trial, our responsibility is “to see that

the law has been clearly stated and that the instructions cover all issues which the evidence fairly

raises.” Swisher v. Swisher, 223 Va. 499, 503, 290 S.E.2d 856, 858 (1982). When reviewing a

trial judge’s decision refusing a proffered jury instruction, “‘the appropriate standard of review

requires that we view the evidence with respect to the refused instruction in the light most

favorable to [the proponent of the instruction].’” Hartigan v. Commonwealth, 31 Va. App. 243,

257, 522 S.E.2d 406, 412 (1999) (quoting Boone v. Commonwealth, 14 Va. App. 130, 131, 415

S.E.2d 250, 251 (1992)). Moreover, the proffered instruction “must be supported by more than a

mere scintilla of evidence.” Gibson v. Commonwealth, 216 Va. 412, 417, 219 S.E.2d 845, 849

(1975). An instruction that is not supported by the evidence, however, is properly refused. Frye

v. Commonwealth, 231 Va. 370, 388, 345 S.E.2d 267, 280 (1986). Moreover, “an otherwise

correct instruction, relating to a question to be decided by the jury, ‘shall not be withheld from

the jury solely for its non-conformance with model jury instructions.’” Davis v. Commonwealth,

17 Va. App. 666, 673, 440 S.E.2d 426, 431 (1994) (quoting Code § 19.2-263.2).

       In Brown, the defendant appealed his conviction of abduction with intent to defile

following his convictions for rape and forcible sodomy, arguing that any detention of the victim

arose out of the restraint necessary to commit the other crimes. He argued that he could not be

punished for both rape and abduction with intent to defile because “such conduct constitutes the

same offense . . . .” Brown, 230 Va. at 313, 337 S.E.2d at 713. The Supreme Court of Virginia

affirmed his conviction for abduction, holding:

               one accused of abduction . . . 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



                                                -5-
                 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 (emphasis added).

       We find no error in the trial court’s refusal of the instruction under the facts and

circumstances of this case. Assuming without deciding that an instruction was warranted as to

the abduction inside the vehicle, the evidence was nonetheless insufficient to support the

instruction as to the second abduction.

       Viewed in the light most favorable to appellant, see Hartigan, 31 Va. App. at 257, 522

S.E.2d at 412, the evidence proved that appellant followed Sheila after she fled from the car and

“grabbed her.” Clearly, the restraint appellant employed against Sheila after she exited the car to

flee from him was not incidental to the restraint used to bite off her finger. Because the

instruction was not “supported by more than a mere scintilla of evidence,” Gibson, 216 Va. at

417, 219 S.E.2d at 849, the trial court did not err in refusing it. See Frye, 231 Va. at 388, 345

S.E.2d at 280.

       Accordingly, the judgment of the trial court is affirmed.

                                                                                              Affirmed.




                                                -6-
