                                COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Clements and Beales
Argued at Richmond, Virginia


TIMOTHY WAYNE MAWYER, A/K/A
 TIMOTHY WAYNE JASON LEE MAWYER
                                                               MEMORANDUM OPINION* BY
v.      Record No. 1609-05-2                                   JUDGE JAMES W. BENTON, JR.
                                                                   DECEMBER 12, 2006
COMMONWEALTH OF VIRGINIA


                     FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
                                James E. Kulp, Judge Designate

                  Michael J. Hallahan, II, for appellant.

                  Michael T. Judge, Senior Assistant Attorney General (Robert F.
                  McDonnell, Attorney General, on brief), for appellee.


        Timothy Wayne Mawyer appeals his convictions for abduction and for assault and battery

of a correctional officer. He argues that the trial judge erred by denying his motion for a mistrial

and refusing to instruct the jury on the incidental detention doctrine. We hold that Mawyer’s first

issue on appeal is procedurally barred. We further hold that the trial judge did not err in refusing to

instruct the jury on the incidental detention doctrine.

                                                    I.

        This appeal arises from attacks by inmates on two prison correction officers in Albemarle

County. The first officer, Harold Terry, entered the cellblock in order to remove blankets that

obstructed the view into two cells. As he started to remove a blanket, inmate Dudley surprised

him from behind and placed him in a headlock. Officer Terry testified that Dudley physically

forced him into “the cellblock six area,” where Mawyer and a third unidentified inmate grabbed

        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
his feet and helped Dudley handcuff him. After handcuffing him, Mawyer and the third inmate

held Officer Terry while two other inmates repeatedly punched him. The inmates bound Officer

Terry’s feet to his wrists and shoved him under a bed in a cell. One of the inmates crawled under

the bed to strike him further.

       The second corrections officer entered the area in order to return an inmate. Two inmates

attacked the second officer and bound his feet with a bed sheet. As the two officers were

captive, inmates attempted and failed to escape. After other officers and outside negotiators

arrived, the inmates released both officers. Officer Terry had three cracked vertebrae and a

broken neck.

       The grand jury indicted Mawyer, Dudley, and two other inmates for abduction and for

assault and battery of Officer Terry. On the morning before the jury trial began against the four

co-defendants, the trial judge granted Dudley’s motion for a continuance. After the prosecutor

rested its case against Mawyer and the remaining two inmates, the prosecutor informed the trial

judge of Mawyer’s intention to call Dudley as a witness. The prosecutor objected, indicating

Dudley would assert his Fifth Amendment right not to testify and this would be prejudicial if

done before the jury. Mawyer’s attorney proffered that at the preliminary hearing Dudley

commented that “Mawyer had nothing to do with this case.” The trial judge overruled the

prosecutor’s objection.

       Dudley took the witness stand outside the jury’s presence, but, on the advice of his

attorney, invoked his Fifth Amendment right against self-incrimination. The trial judge

reconsidered his earlier ruling and sustained the prosecutor’s objection. Mawyer’s attorney then

motioned to sever Mawyer’s trial, “in essence, ask[ing] the court to declare a mistrial today with

reference to Mr. Mawyer and to continue his case and have him tried jointly with Mr. Dudley or

to have his trial postponed until after Mr. Dudley’s trial.” The trial judge denied the motion.

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       Mawyer’s attorney made a motion to strike the evidence as to assault and battery. He

argued that all Mawyer did “was to hold [Officer Terry] while he was being cuffed and that

amount of touching is needed to commit the abduction.” Alternatively he made a motion to

strike the abduction charge, arguing that Mawyer “was assaulting the officer and . . . he didn’t do

anything to further the abduction.” He asked the judge to grant one of the motions because the

offenses were not “separate and apart from, and not merely incidental to, restraint employed in

commission of the other crime.” The prosecutor replied that three actions occurred which

produced assault and battery and an abduction:

               First, after he was put in the headlock by Dudley and walked down
               the hall, he encountered Mawyer and, at that point, struggled with
               Mawyer, and he indicated there was---there was struggling and
               fighting at that point. Secondly, Mawyer grabbed his legs which
               allowed the handcuffing by Dudley. Third, he testified that he was
               then bent over and the way he was bent over was by Mawyer on
               one side and the third person that he wasn’t able to identify on the
               other side pushing him down while [two other inmates] were
               hitting him to the face.

The trial judge denied Mawyer’s motions, ruling “the evidence is sufficient to go to the jury on

both charges . . . , though, the instruction on assault and battery must also include the element

that he’s a principal in the second degree.”

       At the conclusion of all the evidence, Mawyer’s attorney requested jury instructions on

the possible merger of the two charges of abduction and assault and battery. The trial judge

rejected both of the proposed jury instructions.

       The jury convicted Mawyer of both assault and battery and abduction.

                                                   II.

       Mawyer contends that the trial judge erred in not granting his motion for a mistrial

because his “case needed to be postponed until after Dudley’s trial so he could be compelled to

testify.” Mawyer’s brief contains a generalized statement that he “was stripped of his right to


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due process and . . . deprived [of] the right to a fair trial.” Mawyer failed, however, to cite any

principles of law or authority to support this argument in his brief. This omission violates Rule

5:20(e)’s requirement that an appellant’s opening brief contain “authorities relating to each

question presented.” We have repeatedly held that “[s]tatements unsupported by argument,

authority, or citations to the record do not merit appellate consideration.” Buchanan v.

Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992); see also Jeter v. Commonwealth, 44

Va. App. 733, 739-40, 607 S.E.2d 734, 738 (2005) (refusing to consider an issue raised on

appeal without supporting authority cited in the opening brief); Budnick v. Budnick, 42 Va. App.

823, 833, 595 S.E.2d 50, 55 (2004); Roberts v. Roberts, 41 Va. App. 513, 527, 586 S.E.2d 290,

297 (2003). Thus, we will not consider this issue on appeal.

                                                 III.

       Mawyer argues that the trial judge’s refusal of the offered jury instructions deprived the

jury of its obligation to determine “whether the abduction actually occurred, or whether it was

merely incidental to the battery.” The Commonwealth argues (1) that the incidental detention

doctrine prevents separate penalties for the same act, not separate convictions, (2) that whether

restraint is inherent in the underlying crime is a question of law and thus outside the jury’s

province, and (3) that the jury’s ability to reject evidence does not support the instructions.

       The Commonwealth frames the issue on appeal as a purely legal question involving the

constitutional prohibition against placing the defendant in double jeopardy and the trial judge’s

role in determining whether the evidence raises a jury issue. Mawyer does not argue that the trial

judge’s decision addressed a constitutional issue. Rather, Mawyer raises the state law issue the

Supreme Court addressed in Brown v. Commonwealth, 230 Va. 310, 337 S.E.2d 711 (1985).

See, e.g., Hoyt v. Commonwealth, 44 Va. App. 489, 492, 605 S.E.2d 755, 756 (2004) (stating




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that in Brown, “the Supreme Court determined that discussion of double jeopardy principles was

unnecessary” based on its interpretation of the state legislature’s intent).

       Applying Code § 18.2-47, the Supreme Court of Virginia has held “that detention is a

discrete species of abduction.” Brown, 230 Va. at 314, 337 S.E.2d at 713. The Court also held

that “the General Assembly did not intend to make the kind of restraint which is an intrinsic

element of crimes such as rape, robbery, and assault [to be] a criminal act, punishable as a

separate offense.” Id. Thus, the Court concluded 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 713-14.

       Mawyer argues that Hoyt, 44 Va. App. 489, 605 S.E.2d 755, supports his argument that

these matters are proper for a jury instruction. He contends the Court “devised [a] test” for the

jury to follow when determining whether an abduction was separate and apart from, and not

merely incidental to, another crime. He relies upon the Court’s identification of the following

four factors:

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

Id. at 494-95, 605 S.E.2d at 757-58 (quoting Gov’t of Virgin Islands v. Berry, 604 F.2d 221, 227

(3d. Cir. 1979)).




                                                 -5-
       None of our decisions or the Supreme Court’s decisions have expressly addressed

whether these matters must be submitted to a jury. Our decisions in Hoyt, 44 Va. App. 489, 605

S.E.2d 755, Wiggins v. Commonwealth, 47 Va. App. 173, 622 S.E.2d 774 (2005), and Walker v.

Commonwealth, 47 Va. App. 114, 622 S.E.2d 282 (2005), concern the standard to be applied

when reviewing the sufficiency of the evidence to support convictions. Hoyt expressly noted

that “whether an abduction is merely incidental to another crime is a question of law.” 44

Va. App. at 496 n.4, 605 S.E.2d at 758 n.4. Relying on that footnote, Wiggins held the same. 47

Va. App. at 183, 622 S.E.2d at 778. In Walker, we quoted from the following passage in Roger

D. Groot, Criminal Offenses & Defenses in Virginia 3 (5th ed. 2005):

               “When the accused is charged with abduction by detention and
               another crime that factually includes restraint of the victim (e.g.,
               rape or robbery), he cannot be convicted of both unless the
               abduction-detention is factually distinct from the restraint inherent
               in the other crime.”

Walker, 47 Va. App. at 123, 622 S.E.2d at 289.1 We asserted this proposition applies “as a

matter of law.” Id.

       “‘[I]t is the office of the judge to respond as to the law, and the jury as to the facts, and

few rules are more essential in the administration of justice.’” Fitzgerald v. Commonwealth, 249

Va. 299, 305, 455 S.E.2d 506, 510 (1995) (quoting Brown v. Commonwealth, 86 Va. 466, 471,

10 S.E. 745, 747 (1890)). In this case, the trial judge ruled the evidence was sufficient for the

jury to consider both the crime of abduction and the crime of assault and battery. This Court has

repeatedly held that the question whether an abduction was incidental to another crime is a




       1
         In Walker, we did not address whether “under Hoyt, Walker detained [the victim] in
excess of what would be inherent in the alleged robbery.” Id. at 124 n.9, 622 S.E.2d at 287 n.9.
The Supreme Court affirmed Walker and expressly declined to express an opinion on Hoyt.
Walker v. Commonwealth, ___ Va. ___, ___, ___ S.E.2d ___, ___ (Nov. 3, 2006).
                                              -6-
question of law. Thus, the trial judge acted in accordance with our decisions in Hoyt, Wiggins,

and Walker when he refused the proposed instructions.

       In view of our prior decisions, we hold that the trial judge did not err in refusing the

instructions. Accordingly, we affirm the convictions.

                                                                                     Affirmed.




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