                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Frank, Humphreys and Huff
UNPUBLISHED


              Argued at Richmond, Virginia


              JAVAUGHN MARQUEL BRELAND
                                                                              MEMORANDUM OPINION * BY
              v.     Record No. 2207-11-2                                    JUDGE ROBERT J. HUMPHREYS
                                                                                   OCTOBER 2, 2012
              COMMONWEALTH OF VIRGINIA


                                FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                                         Theodore J. Markow, Judge Designate

                               (Ashley L. Slone; Englisby, Vaughn & Slone, on brief), for
                               appellant. Appellant submitting on brief.

                               Benjamin H. Katz, Assistant Attorney General (Kenneth T.
                               Cuccinelli, II, Attorney General, on brief), for appellee.


                     Javaugh Marquel Breland (“Breland”) was convicted in the Circuit Court of the County

              of Chesterfield (“trial court”) of abduction in violation of Code § 18.2-47, assault and battery in

              violation of Code § 18.2-57, and petit larceny in violation of Code § 18.2-96. On appeal,

              Breland contends that the trial court erred in “denying [his] motion to strike the abduction charge

              because the detention underlying that charge was merely incidental to the assault and battery.”

              For the reasons that follow, we affirm.

                                                         I. Background

                     On December 24, 2010, Zachary Nobles (“Nobles”) drove to the WaWa gas station on

              Jefferson Davis Highway in Chesterfield County. As he pulled his car into the parking lot,

              Breland was in a car that was exiting, and the two cars almost collided. Nobles directed his

              middle finger at the driver of the other vehicle before parking and entering the store.

                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       While Nobles was in line to check out, Breland entered the store and tapped him on the

shoulder. Breland asked if Nobles had flipped him off, and Nobles said yes because Breland had

almost crashed into him. Breland asked if Nobles wanted to “settle this outside.” Nobles was

baffled by the invitation and asked if Breland was serious. Breland then walked back outside.

       Nobles finished checking out and then proceeded to the men’s restroom. As he was

facing the toilet, he turned around and noticed that Breland had entered the restroom and was

standing up against the door, facing him. Nobles tried to leave the restroom, but Breland was

“blocking the door” and “wouldn’t let [Nobles] get out.” The door was the only way out of the

restroom. While he was blocking the door, Breland continued asking why Nobles flipped him

off. As this was happening, someone attempted to come into the bathroom, and Breland let that

person in. After Breland let the person in, Nobles tried to leave again, but he testified that “it

wasn’t happening.”

       At that point, Nobles “came up really close to [Breland], and [Breland] just started

punching [Nobles] in the face.” Breland punched Nobles four or five times, which knocked

Nobles down. While Nobles was on the ground, Breland repeatedly kicked him in the face and

ribs. Breland then grabbed Nobles’ hat, which had fallen off during the scuffle, and left.

       Breland was charged with malicious wounding, abduction, and grand larceny. Breland

was tried by a bench trial, and the trial court found him guilty of the abduction charge and the

lesser-included offenses of assault and battery and petit larceny. Breland then noted this appeal.

                                            II. Analysis

       On appeal, Breland argues that the trial court should have struck his abduction charge,

because it was merely incidental to the assault and battery. In analyzing this issue, we note our

standard of review: “[w]hether an abduction is merely incidental to another crime is a question

of law. However, because no two crimes are exactly alike, determining whether an abduction is


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incidental necessarily requires consideration of the historical facts of each case.” Hoyt v.

Commonwealth, 44 Va. App. 489, 496 n.4, 605 S.E.2d 755, 758 n.4 (2004). Therefore, “[w]e

defer to the trial court’s findings of historical fact, but we review de novo the trial court’s

application of those facts to the law.” Id.

       The rule Breland relies upon, which has been referred to as the incidental detention

doctrine, draws its origin in the Commonwealth from our Supreme Court’s holding in Brown v.

Commonwealth, 230 Va. 310, 337 S.E.2d 711 (1985). In that case, the Supreme 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. 1

Id. at 314, 337 S.E.2d at 713-14. This rule “focuses not on whether the restraint was merely

useful to perpetrating a detention-plus crime -- but whether the restraint was ‘intrinsic’ to or

‘inherent’ in the detention-plus crime.” Pryor v. Commonwealth, 48 Va. App. 1, 6, 628 S.E.2d

47, 49 (2006) (internal citations omitted).

       In Hoyt v. Commonwealth, 44 Va. App. 489, 605 S.E.2d 755 (2004), we discussed how

courts in the Commonwealth and other states have historically applied the rule. We explained

that, while there was no universal test, there are four main factors that courts use to determine

whether an abduction is incidental to another offense.

               Those factors are: (1) the duration of the detention or asportation;
               (2) whether the detention or asportation occurred during the
               commission of a separate offense; (3) whether the detention or
               asportation which occurred is inherent in the separate offense; and

       1
         The Supreme Court clarified that this ruling “only applies when a defendant is
convicted of two or more crimes arising out of the same factual episode and, thus, the guarantee
of double jeopardy may be implicated.” Walker v. Commonwealth, 272 Va. 511, 516, 636
S.E.2d 476, 479 (2006). Since the trial court convicted Breland of assault and battery in addition
to abduction in connection to the same factual episode, the rule is applicable in this case.

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                (4) whether the asportation or detention created a significant
                danger to the victim independent of that posed by the separate
                offense.

Id. at 494, 605 S.E.2d at 757 (quoting Gov’t of Virgin Islands v. Berry, 604 F.2d 221, 226 (3d

Cir. 1979)).

         When you apply this test to the facts of this case, it is clear that the abduction was

separate and apart from, and not merely incidental to, the restraint used in the assault and battery.

Brown, 230 Va. at 314, 337 S.E.2d at 713-14. While the record does not provide an exact

duration of Breland’s detention of Nobles, the facts and nature of this case suggest that the

detention did not last long. Additionally, there is no indication that the detention created any

significant danger to the victim independent of the impending assault and battery. Nevertheless,

all of the elements of the abduction occurred entirely before the assault and battery began. 2

Breland could have committed the assault and battery without first detaining Breland in the

bathroom. Instead, he blocked the only exit from the bathroom while he questioned Nobles.

Furthermore, while some form of detention may be inherent in an assault and battery, such as

pinning the victim down or putting the victim in a head lock, the detention that occurred here

was not of that type.

         Given the facts of this case, we hold that the abduction was separate and apart from, and

not merely incidental to, the restraint used in the assault and battery, and therefore, the trial court

did not err in denying Breland’s motion to strike. Thus, we affirm the judgment of the trial court

below.

                                                                                               Affirmed.


         2
           Abduction under Code § 18.2-47(a) states in relevant part that “[a]ny person who, by
. . . intimidation . . . , and without legal justification or excuse, . . . detains . . . another person
with the intent to deprive such other person of his personal liberty . . . shall be deemed guilty of
‘abduction.’” It is clear from the record that Breland’s acts satisfied the elements of the offense
before the assault and battery occurred.
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