                     COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Lemons and Senior Judge Cole
Argued at Richmond, Virginia


ENDDY OMAR CATEDRAL
                                           MEMORANDUM OPINION * BY
v.           Record No. 2441-97-2          JUDGE DONALD W. LEMONS
                                              FEBRUARY 9, 1999
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                      John F. Daffron, Jr., Judge
             David B. Hargett (Joseph D. Morrissey;
             Morrissey, Hershner & Jacobs, on brief), for
             appellant.

             Ruth Morken McKeaney, Assistant Attorney
             General (Mark L. Earley, Attorney General, on
             brief), for appellee.



     Enddy Omar Catedral was convicted of robbery, use of a

firearm in the commission of a robbery, five counts of abduction,

and three counts of use of a firearm in the commission of

abduction.    On appeal, Catedral argues that the trial court erred

in refusing to give his proposed jury instruction on abduction

and in denying his motion to voir dire a juror following the

verdict.   Because we hold that the trial court committed no

error, we affirm.
                              BACKGROUND

     On April 16, 1996, at approximately 10:30 p.m., Edward Lee

Parker, Jr., an employee of Arby's restaurant in the County of

Chesterfield, was emptying trash behind the building.       Parker
     *
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
heard footsteps behind him and felt a gun being placed in the

middle of his back.    He heard a voice, identified as Enddy Omar

Catedral, appellant, ask "How many people are inside?"    Parker

stated that Catedral then placed the gun at the back of his head.

Parker replied that there were three employees and a manager.

Catedral told him to turn around, and Parker saw a second person,

identified as Michael Sandy, carrying a shotgun.    Both men were

dressed in dark clothing with their faces covered.
        Catedral held the gun to Parker's head as Parker opened the

door, and the men walked into the back of the restaurant behind

him.    Once inside, Catedral went to the manager's office and

pointed the gun at the manager, Phil Gammon.    Gammon stated that

he was "counting the money for the night" when he saw Parker

enter the building with a person holding a pistol to Parker's

head.    Gammon walked to the door of his office, and Catedral

pointed the pistol at Gammon's head, told him to look at the

floor, and to sit back at the desk.     Catedral tossed a black bag

onto a table in the office and told Gammon to put the money into

it.

        Sandy walked around the restaurant confronting the other

employees.    Sandy stopped Monica Moore in the front of the store

and Vanessa Mavilla while she was working on the back line

slicer.    Sandy approached Melissa Watson as she cleaned the

floor.    Sandy gathered Moore, Mavilla, Watson, and Parker outside

of Gammon's office.    Catedral and Sandy ordered the four




                                  -2-
employees into a walk-in refrigerator at gunpoint.    A few moments

later, when Gammon was finished putting the money in the bag,

Catedral emptied the safe and took money from inside the desk.

Catedral then ordered Gammon into the walk-in refrigerator.      As

he walked in, Catedral remarked to Sandy "make sure he doesn't

get out."   The door, while not locked, was closed behind the

employees and the manager.    The employees and Gammon waited in

the back room of the refrigerator for about five minutes before

exiting into an empty store.
     On July 15, 1996, Catedral was indicted on five counts of

abduction, one count of robbery, one count of using a firearm in

the commission of a robbery and five counts of use of a firearm

in the commission of abduction.    On October 31, 1996, he was

convicted in a jury trial of all charges, except two counts of

using of a firearm in the commission of abduction.    Catedral

appeals, arguing that the trial court erred in refusing his

proffered jury instruction on abduction and in failing to voir

dire a juror following the verdict.

                           JURY INSTRUCTION

     Upon review of jury instructions given or refused at trial,

an appellate court is charged with seeing that "the law has been

clearly stated and the instructions cover all issues which the

evidence fairly raises."     Darnell v. Commonwealth, 6 Va. App.

485, 488, 370 S.E.2d 717, 719 (1988) (citations omitted).    The

evidence relied upon to support a proffered instruction must



                                  -3-
amount to "more than a scintilla."    Morse v. Commonwealth, 17 Va.

App. 627, 633, 440 S.E.2d 145, 149 (1994) (citations omitted).

"An instruction that is not supported by the evidence, however,

is properly refused."   Lea v. Commonwealth, 16 Va. App. 300, 304,

429 S.E.2d 477, 479-80 (1993) (citations omitted).

     A proper jury instruction is one which "informs the jury as

to the essential elements of the offense."    Darnell, 6 Va. App.

at 488-89, 370 S.E.2d at 719 (citations omitted).    Where more

than one jury instruction correctly defines the law, the trial

court is not in error for refusing multiple jury instructions

that touch upon the same legal principle.    See Cirios v.

Commonwealth, 7 Va. App. 292, 303-04, 373 S.E.2d 164, 170 (1988)

(citing Tuggle v. Commonwealth, 228 Va. 493, 508, 323 S.E.2d 539,

548 (1984), vacated on other grounds, 471 U.S. 1096 (1985)).       An

appellate court must review a trial court's refusal to give an

instruction "in the light most favorable" to the defendant.

Brandau v. Commonwealth, 16 Va. App. 408, 412, 430 S.E.2d 563,

565 (1993).

     On appeal, Catedral states that the acts of abduction were

extremely close in time and distance to the robbery.   He also

contends that the "force and intimidation employed in the

abduction were not separate and apart from the restraint inherent

in the commission of the robbery."    Therefore, Catedral argues

that the jury could have reasonably found that he was not guilty

of any acts of abduction which were not inherent in the



                                -4-
commission of the robbery.   Catedral contends that when there is

a robbery of numerous persons in a large space, it is necessary

to gather the persons present into one area where they can easily

be watched.

     Catedral requested that the jury be instructed:
          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.

     The trial court instead offered the following instruction

for each abduction charge:
          The defendant is charged with the crime of
          abduction. Abduction and kidnapping are the
          same crime. The Commonwealth must prove
          beyond a reasonable doubt each of the
          following elements of the crime: Number 1,
          that the defendant by force or intimidation
          did seize or detain [the five persons
          allegedly placed inside the walk-in
          refrigerator]. And Number 2, that the
          defendant did so with the intent to deprive
          [the five persons placed inside the walk-in
          refrigerator] of [his or her] personal
          liberty. And Number 3, that the defendant
          acted without legal justification or excuse.


     The sole issue on appeal with respect to the jury

instruction is whether more than a "mere scintilla" of evidence

existed to support a jury finding that the act of placing the

employees in the walk-in refrigerator was incidental to the

robbery of Arby's restaurant, and not separate and apart from the




                                -5-
restraint necessary to commit the robbery.

     "[T]o constitute [an] abduction, separate and apart from a

robbery, the victim's detention must be greater than the

restraint that is intrinsic in a robbery."     Cardwell v.

Commonwealth, 248 Va. 501, 511, 450 S.E.2d 146, 152 (1994).     Even

if the purpose of the abduction is in furtherance of the robbery

in allowing the defendant to make an effective escape, an act of

abduction is not considered inherent in the crime of robbery.
See Phoung v. Commonwealth, 15 Va. App. 457, 462, 424 S.E.2d 712,

715 (1992).

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

(1985), 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 . . . ."   Id. 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




                                -6-
            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 Brown, the defendant approached a woman in a parking lot

and asked for a ride.   She refused, and entered her car.   The

defendant opened her car door, hit her on the head, and pushed

her into the passenger seat as he entered the car.   The defendant

threatened that he would "cut" her if she attempted to get out of

the car, and he drove to a remote area where he raped her and

commited acts of sodomy.    See id. at 312, 337 S.E.2d at 712.    The

defendant argued that the act of driving her to the remote area

was inherent in the commission of the rape and sodomy and that it

was not punishable as a separate offense.   The Court disagreed

and held,
            [t]he evidence in the record before us shows
            that the detention underlying the abduction
            conviction was not the kind of restraint that
            is inherent in the act of rape. Abduction
            was established as a fact once the
            Commonwealth proved that Brown had deprived
            his victim of her liberty by physical
            assaults and threats of violence.
Id. at 314, 337 S.E.2d at 713.


     In Phoung, 15 Va. App. 457, 424 S.E.2d 712, the defendant

was convicted of statutory burglary, two counts of abduction, two

counts of robbery, and two counts of using a firearm while



                                 -7-
committing robbery.    He appealed, arguing in part that his

convictions for abduction and robbery violated the double

jeopardy prohibition against multiple punishments for the same

offense.

     In Phoung, the defendant and three codefendants entered the

victim’s house, held a gun to her head, tied her up and told her

to remain silent.   Two of the men went upstairs and bound her

daughter to her bed.   While the victims were tied up, the men

stole various items of personal property.    On appeal, Phoung

argued that “the detention of the victims merely assisted in the

completion of the robbery and was not separate and apart from the

restraint inherent in the act of robbery” and that he may not be

punished for both offenses.    Id. at 461, 424 S.E.2d at 714.

     We affirmed the defendant's two convictions for abduction,

holding that "[t]he evidence established that the detention of

the victims was separate and distinct from the restraint inherent

in the act of robbery."    Id. at 462, 424 S.E.2d at 715.    In

looking at the elements of each offense, we reasoned, "[s]imply

stated, the asportation of a victim from one room to another and

the binding of another victim's hands and feet together are not

acts inherent in the crime of robbery."     Id.

     In the case now before us, Catedral argues that the act of

placing five employees in a walk-in refrigerator was inherent in

the commission of the robbery.   We disagree.     Each act of placing

the five people in a walk-in refrigerator was not inherent in the




                                 -8-
commission of the robbery.

     In refusing Catedral's instruction, the trial judge stated,
          Well, I think if it is subject to
          interpretation and turns on a factual
          determination, then it does become an issue
          for the jury, but in this case, the only
          evidence, at least at this point, is that the
          employees were directed against their will
          into another area where they were confined.
          That on the face of it is abduction. . . .

             But I think when they're transported to
             another area or they are seized, then I don’t
             think that under the testimony that it’s a
             factual issue and I think that's the
             threshold determination; could the jury under
             the evidence that they have heard determine
             that this was part of the same offense. . . .
             They were taken to another area and locked in
             there. I think that's seizure and abduction.
                  *     *     *     *     *     *     *
             [T]hey were taken against their will,
             intimidation and a show of force, namely
             weapons, and said, go into that area. I
             think that is a sufficient factual basis
               for the court to rule, and I make that
                 ruling as a matter of law that it's not
             susceptible to interpretation by the jury,
             the fact finders . . . .


     The court's instruction on abduction clearly stated the law

related to that offense.    Because we agree with the trial court

that the act of placing the employees into the walk-in

refrigerator was not incidental to the robbery and that not even

a scintilla of evidence tended to prove otherwise, we hold that

it was not error for the court to refuse Catedral's instruction.

     POLLING OF THE JUROR

     Following the jury verdict, Catedral requested that the jury

be polled.    During the court's poll of the jury, one of the



                                  -9-
jurors 1 expressed that she "had doubts" with the other jurors'

decision.    The following colloquoy took place:
            THE COURT:   Well, what you need to tell me
            is if you've reached a decision in the
            verdict that you found the defendant guilty
            beyond a reasonable doubt in each of the ten
            verdicts that I read that were guilty
            verdicts.

            JUROR:   Each of the ten?

            THE COURT:   Yes. You've returned 12
            verdicts. On ten of them, the defendant was
            found guilty. On two [use of a firearm]
            charges, the verdict was not guilty . . . .
            So the question that I ask you, . . . are
            these ten guilty verdicts, is this among
            others your decision on each of the ten?
            JUROR:   Except for one.

            THE COURT:   So these are not all unanimous
            verdicts? Well, that's an awkward matter,
            but I need to know whether or not the
            verdicts were unanimous. Now, what you're
            telling me is they were not all unanimous.
            You didn't vote for a finding of guilt in
            each of the ten guilty verdicts?

            JUROR:   I voted in the end.   Yes.

            THE COURT:   All right. Well, was your
            decision, your thought process, that you
            found under the evidence that the
            Commonwealth had proved to you the guilt of
            the accused in these ten cases?

            JUROR:   I just have reservation on one part,
            but I went along. I said yes.

            THE COURT:   I read you an instruction.

            JUROR:   Yes, I know.

     1
      The court finds it unnecessary to identify this juror by
name, as the identity of the juror is readily available to both
parties and their attorneys through a review of the record.



                                -10-
          THE COURT:   The instruction said it's not
          guilt beyond all doubt. It's guilt beyond
          all reasonable doubt. Now, the question that
          I asked you is do you have a reasonable doubt
          as to the guilt of the accused in any of the
          ten convictions.

          JUROR:    I don't have any doubt.

          THE COURT:    Ma'am?

          JUROR:    I don't have any doubt.

          THE COURT:   So it is your statement now that
          individually, not that you went along with
          it, but that individually you had determined
          that the Commonwealth has proved to your
          reasonable satisfaction the guilt of the
          accused beyond a reasonable doubt?
          JUROR:    Yes.


     After the other eleven jurors each stated that these were

his or her verdicts, Catedral's counsel asked the court to voir

dire the juror who had expressed concerns.    Catedral's counsel

requested that this additional questioning take place outside the

presence of the other jurors.    The court refused his request, but

allowed counsel to tell the court what questions he would like to

ask the juror.   Catedral's counsel requested that the court ask

whether the juror "felt pressured into giving a guilty verdict"

and whether the juror felt pressured to give the answer in front

of the other jurors.   The court conducted the following

additional colloquoy with the juror:
          THE COURT:   Frequently Courts will give
          instructions, advise all the jurors something
          like this, that if you can do so, it’s your
          duty to reach a decision. Now, that's a
          practical response because if there is not a
          unanimous verdict, then one possibility is
          that the case will have to be retried, which



                                 -11-
means we'll get 12 others to come in and sit
on the jury. Now, we're not going to get a
wiser, more thoughtful, more insightful jury
than those of you sitting here now. So
that's why I read what the law is and
practically should be.

If you can reach a verdict, it's your duty to
do so if you can do so without giving up any
firmly held beliefs. You do not make a
decision just to go along. You do not make a
decision just because you were pressured.
I'm sure it's awkward for you to make your
comments that you have now, and you shouldn't
be pressured in the jury room or in the
courtroom. You should not give up your
honest opinion as to the evidence solely
because of the opinions of your fellow jurors
or simply for the purpose of returning a
verdict.
     . . . [I]f there's a difference in
opinion . . . then it's appropriate to
re-examine your views . . . and if you choose
to reconsider your decision, then that's your
right to do so.

I emphasize foremost that you don't make a
decision just to go along. But it's proper
and appropriate to listen to the other
jurors, consider their points of view,
consider whether or not you need to make a
different response.

Now, I've said a couple of times you should
not be pressured in the jury room. You
should not be pressured in the courtroom to
make a decision. Now, I think I need to ask
you for the court record just one more time
if you agree with all the verdicts. . . . I'm
neither trying to get you to go along nor
trying to change your mind. I'm trying to
ask you a question so it will be clear on the
court what your decision is. And the
question again is do you agree on each of the
ten guilty verdicts that the evidence has
proved to you beyond a reasonable doubt the
guilt of the accused?

JUROR:   I agree.




                    -12-
           THE COURT:     You agree with that?

           JUROR:   Yes.


     "A trial court has discretionary authority to ask

appropriate neutral questions to clarify matters of confusion in

a juror's response to a poll."     Carver v. Commonwealth, 17 Va.

App. 7, 10, 434 S.E.2d 916, 918 (1993) (citations omitted).        In

Carver, defendant was convicted of grand larceny.      Following his

conviction, defendant's counsel asked to poll the jury.        During

the poll, one juror stated that his belief was contrary to the

verdict rendered and "indicated a clear disregard of the court's

preliminary instructions and an improper basis for her vote of

guilty."   Id. at 10, 434 S.E.2d at 918.     We reversed the

defendant's conviction and remanded for a new trial, holding that

the juror's responses were not based upon confusion of the jury

process, but rather, on the juror's stated belief that the

defendant was innocent.     See id. at 10, 434 S.E.2d at 918.

     In the case before us, the juror's responses in the initial

poll and the court's subsequent communication with her did not

indicate that she believed that Catedral was innocent.     Here, the

juror's responses revealed a full understanding of both the

court's preliminary instructions and the standard of proof that

the Commonwealth was required to meet.     A review of this record

reveals that the juror affirmed her verdicts eight times in

response to the court's questions.      The court did not err in

refusing to allow Catedral's counsel to conduct an individual



                                 -13-
voir dire outside the presence of the jury.

                           CONCLUSION

     Based upon the foregoing, we hold that the trial court

neither erred in refusing Catedral's proffered instruction on

abduction, nor in refusing to allow Catedral's counsel to voir

dire a juror outside the presence of the other jurors after the

jury had returned its verdicts.   Therefore, we affirm his

convictions.
                                                         Affirmed.




                              -14-
