                                              COURT OF APPEALS OF VIRGINIA


              Present: Chief Judge Felton, Judges Kelsey and Petty
UNPUBLISHED


              Argued at Richmond, Virginia


              EARL DON MANNING, JR.
                                                                          MEMORANDUM OPINION* BY
              v.      Record No. 1231-13-2                              CHIEF JUDGE WALTER S. FELTON, JR.
                                                                                  APRIL 8, 2014
              COMMONWEALTH OF VIRGINIA


                            FROM THE CIRCUIT COURT OF THE CITY OF COLONIAL HEIGHTS
                                              Herbert C. Gill, Jr., Judge

                                Stephen K. Armstrong (Reed|Armstrong LLP, on briefs), for
                                appellant.

                                Susan Mozley Harris, Assistant Attorney General (Kenneth T.
                                Cuccinelli, II, Attorney General, on brief), for appellee.


                      Earl Don Manning, Jr. (“appellant”) appeals his conviction of abduction with intent to

              defile, in violation of Code § 18.2-48, following a bench trial in the Circuit Court of the City of

              Colonial Heights (“trial court”). He asserts the evidence was insufficient to prove beyond a

              reasonable doubt that he abducted K.F., a seven-year-old child. He further contends the evidence

              was insufficient to prove beyond a reasonable doubt that he abducted K.F. with the intent to

              sexually molest her.

                                                        I. BACKGROUND

                      “On appeal, ‘we review the evidence in the light most favorable to the Commonwealth,

              granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth,

              26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App.

              438, 443, 358 S.E.2d 415, 418 (1987)). So viewed, the evidence presented at trial proved that on

                      *
                          Pursuant to Code § 17.1-413, this opinion is not designated for publication.
March 28, 2012, at about 7:30 p.m., Stephanie Stole was inside a house on Bermuda Avenue

when she heard her seven-year-old niece, K.F., screaming from the front yard. In response, Stole

rushed into the yard. She saw appellant straddling a bicycle as he pulled K.F. toward him,

holding onto her wrist. Stole heard appellant say to K.F., “Let’s go. Let’s go for a ride.” Stole

said appellant did not release K.F. until Stole intentionally fell on his arm with her upper body,

forcing him to let go of K.F.’s wrist. Stole then screamed for her sister, Sheila Sochol, because

she thought she should have “back-up.”

        Sheila Sochol testified that K.F., who was her daughter, and K.F.’s five-year-old

playmate, C.S., were playing in the front yard when she heard both K.F. and Stole yelling for

help. Sochol hurried outside and saw that appellant was “acting crazy” and was “just acting

weird.” When appellant finally released K.F., Sochol saw a mark on K.F.’s arm. Sochol and

Stole told appellant to leave the Bermuda Avenue yard and he “finally went on.”

        Colonial Heights Patrol Officer Simmons was dispatched to the house on Bermuda

Avenue after Stole telephoned police for help. Officer Simmons encountered appellant on his

bicycle a few minutes later, not far from Bermuda Avenue. Officer Simmons pulled over and

asked appellant to stop. When appellant continued riding his bicycle, Officer Simmons

“removed” him from his bicycle. Officer Simmons detected a “strong odor of alcohol on

[appellant’s] breath,” and placed appellant in custody for being “drunk in public.” Appellant

admitted to Officer Simmons that he had been drinking.

        After Officer Simmons was dispatched to Bermuda Avenue, Detective Kelley was also

dispatched to the same location. At trial, Detective Kelley testified that K.F. was “upset” when

he talked to her that evening and that he noticed an appearance of “redness of the skin” on her

right wrist.




                                                -2-
       Detective Kelley interviewed appellant at the police station. Appellant told Detective

Kelley that he “didn’t know what was going on, that he was riding down the street, [and that he]

had stopped by his friend Bubba and Stacy’s house to see them.” He further told Detective

Kelley that Bubba and Stacy were not at home and “then he was riding down the street and some

people started yelling and screaming at him.” At that point, appellant said “[h]e went around the

corner, where he was knocked to the ground and taken into custody.” Appellant told Detective

Kelley he did not go into the yard at all and “didn’t see anybody at the residence in the yard.”

       K.F. testified that she did not know appellant and that he was a stranger to her. She said

he pulled her by the arm and said, “Come on, get on my bike. I’m not coming back.” K.F. said

appellant would not let her go and that she escaped by “jerk[ing] my arm and [running].” K.F.

said her aunt had also helped to “pull[] [her] away.”

       Appellant testified on his behalf. He denied grabbing K.F. He stated that he did not

know K.F. and had “never seen [her] before in my life.” Appellant told the trial court that he

knew K.F.’s five-year-old playmate, C.S., and that C.S. had asked him to “push her on the

bicycle.” Appellant testified that Stacy Sochol was Bubba’s wife and that it was Stacy and

Bubba’s house he had intended to visit that evening.1

       Testifying in rebuttal, Detective Kelley told the trial court that appellant never mentioned

that C.S. had asked him for a ride on his bicycle. Moreover, Detective Kelley testified that

appellant told him no one was in the front yard when he passed by that area, but later said the

only conversation he had with the two girls concerned whether “Bubba and Stacy” were home.

       Finally, Stacy Sochol testified on appellant’s behalf. She testified that her husband’s

name was Bubba, that their house was two doors down from Sheila Sochol’s house, and that C.S.

was her five-year-old daughter. Stacy Sochol said she had known appellant since junior high


       1
           On cross-examination, appellant admitted he had a felony conviction.
                                               -3-
school and that they were friends. Sochol said that she was not related to Sheila Sochol and that

Sheila Sochol was Bubba’s ex-wife.

        The trial court found appellant guilty of abduction of K.F. with intent to defile, in

violation of Code § 18.2-48. The trial court sentenced appellant to twenty-five years of

incarceration with the Department of Corrections, with twelve of those years suspended for a

period of twenty years.

                                            II. ANALYSIS

        Appellant contends the evidence presented at trial was insufficient to prove beyond a

reasonable doubt that he abducted K.F. and that the evidence was insufficient to prove beyond a

reasonable doubt that he abducted K.F. with the intent to defile her.

        “When reviewing the sufficiency of the evidence to support a conviction, the Court will

affirm the judgment unless the judgment is plainly wrong or without evidence to support it.”

Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008). In considering

appellant’s sufficiency claim, “‘we view the evidence in the light most favorable to the

Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.’” Baylor v.

Commonwealth, 55 Va. App. 82, 84, 683 S.E.2d 843, 844 (2009) (quoting Sandoval v.

Commonwealth, 20 Va. App. 133, 135, 455 S.E.2d 730, 731 (1995)). If there is evidence to sustain

the trial court’s verdict, this Court may not overrule it and substitute its own judgment, even if it

differs from that of the trial court. George v. Commonwealth, 242 Va. 264, 278, 411 S.E.2d 12, 20

(1991). “Practically speaking, this means [the trial court’s] decision cannot be disturbed on appeal

unless no ‘rational trier of fact’ could have come to the conclusion it did.” Seaton v.

Commonwealth, 42 Va. App. 739, 746, 595 S.E.2d 9, 13 (2004) (emphasis added) (quoting Kelly v.

Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc)).




                                                  -4-
                                              A. Abduction

        To sustain appellant’s underlying conviction of abduction, the Commonwealth was required

to prove beyond a reasonable doubt that appellant “by force, intimidation or deception, and without

legal justification or excuse,” seized, took, transported, detained, or secreted K.F. with intent to

deprive her of her personal liberty or to withhold or conceal her “from any person, authority or

institution lawfully entitled to [her] charge.” Code § 18.2-47.

        Here, the evidence presented showed that appellant, who was noticeably intoxicated,

grabbed the wrist of K.F., a seven year old whom he did not know, pulled her toward his bicycle,

told her they were going to take a ride, and informed her that he was “not coming back.” He

refused to release K.F.’s wrist until her aunt physically pushed him away. When questioned by

Detective Kelley, appellant initially stated that no one was in the front yard when he passed by, but

later stated he spoke to K.F. and C.S. regarding whether Bubba and Stacy were home. At trial,

appellant admitted to speaking with C.S., but denied having any contact with K.F. However, “[i]n

its role of judging witness credibility,” the trial court as fact finder “[was] entitled to disbelieve the

self-serving testimony of the accused and to conclude that the accused [was] lying to conceal his

guilt.” Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998).

        The evidence at trial, including the testimony of the child victim and her adult relatives, was

sufficient to prove that appellant, by force, seized K.F. with the intent to deprive her of her personal

liberty. Accordingly, we conclude the trial court did not err by finding that the evidence was

sufficient to prove beyond a reasonable doubt that appellant committed the underlying offense of

abduction of K.F.

                                            B. Intent to Defile

                [I]n order for the Commonwealth to prove that the abduction was
                with the intent to defile, it had to prove that the appellant abducted
                the child with the specific intent to sexually molest her. Simms v.
                Commonwealth, 2 Va. App. 614, 617, 346 S.E.2d 734, 735 (1986).
                                                   -5-
               “Intent is the purpose formed in a person’s mind which may, and
               often must, be inferred from the facts and circumstances in a
               particular case.” David v. Commonwealth, 2 Va. App. 1, 3, 340
               S.E.2d 576, 577 (1986) (quoting Ridley v. Commonwealth, 219 Va.
               834, 836, 252 S.E.2d 313, 314 (1979)). The state of mind of an
               accused may be shown by his conduct and by his statements. Long
               v. Commonwealth, 8 Va. App. 194, 198, 379 S.E.2d 473, 476
               (1989). However, where an offense consists of an act combined with
               a particular intent, the intent must be established as a matter of fact,
               and “surmise and speculation as to the existence of the intent are not
               sufficient.” Dixon v. Commonwealth, 197 Va. 380, 382, 89 S.E.2d
               344, 345 (1955).

                       “The question of [appellant’s] intent must be determined
               from the outward manifestation of his actions leading to usual and
               natural results, under the peculiar facts and circumstances disclosed.
               This determination presents a factual question which lies peculiarly
               within the province of the [fact finder].” Ingram v. Commonwealth,
               192 Va. 794, 801-02, 66 S.E.2d 846, 849 (1951). “[T]he [fact finder]
               may consider the conduct of the person involved and all the
               circumstances revealed by the evidence.” Wynn v. Commonwealth,
               5 Va. App. 283, 292, 362 S.E.2d 193, 198 (1987). Indeed, “the
               specific intent in the person’s mind may, and often must, be inferred
               from that person’s conduct and statements.” Martin v.
               Commonwealth, 13 Va. App. 524, 527, 414 S.E.2d 401, 402 (1992)
               (citing Hargrave v. Commonwealth, 214 Va. 436, 437, 201 S.E.2d
               597, 598 (1974)).

Hughes v. Commonwealth, 18 Va. App. 510, 519-20, 446 S.E.2d 451, 457 (1994) (en banc).

       In Wagstaff v. Commonwealth, No. 1040-95-2 (Va. Ct. App. July 2, 1996), this Court

found that evidence that the defendant’s pants were unzipped and his hand was on his groin

supported an inference that he intended to sexually molest the victim, and was sufficient to

sustain his conviction of attempted abduction with intent to defile.2 Similarly, in Ellis v.

Commonwealth, No. 2700-10-2 (Va. Ct. App. Mar. 27, 2012), aff’d by unpublished order,

No. 120701 (Va. Mar. 15, 2013), this Court affirmed appellant’s conviction of abduction with

intent to defile where the circumstantial evidence was sufficient to prove his intent beyond a


       2
          “Although not binding precedent, unpublished opinions can be cited and considered for
their persuasive value.” Otey v. Commonwealth, 61 Va. App. 346, 350 n.3, 735 S.E.2d 255, 257
n.3 (2012) (citing Rule 5A:1(f)).
                                              -6-
reasonable doubt. In Ellis, the defendant repeatedly asked the victim to engage in consensual sex

with him, embraced the victim despite her refusal to engage in sexual acts with him, and

acknowledged to law enforcement that he had been attempting to perform sexual acts with the

victim.

          Here, unlike in Wagstaff and Ellis, there was no evidence presented at trial establishing

that appellant intended to engage in sexual acts with K.F. Appellant grabbed K.F. by the wrist,

refused to release her, and told her they were going for a ride. However, there was no evidence

presented at trial that appellant made any statements or gestures suggesting his intent to engage

in sexual acts with her. Even appellant’s self-serving testimony that he did not have any contact

with K.F. was insufficient to support a reasonable inference by the fact finder that he intended to

abduct K.F. for the purpose of having sexual contact with her. See, e.g., Barnes v.

Commonwealth, 47 Va. App. 105, 110 n.1, 622 S.E.2d 278, 280 n.1 (2005) (the rational fact

finder standard of review on appeal “gives full play to the responsibility of the trier of fact fairly

to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences

from basic facts to ultimate facts” (emphasis added) (citation omitted)). To sustain a conviction

under Code § 18.2-48, the Commonwealth was required to prove beyond a reasonable doubt that

appellant harbored an intent to have sexual contact with K.F. We cannot say from our review of

the record on appeal that the evidence was sufficient to prove beyond a reasonable doubt that

appellant harbored the requisite intent to defile K.F.

                                          III. CONCLUSION

          For the foregoing reasons, we conclude that the trial court erred by convicting appellant of

abduction with intent to defile, in violation of Code § 18.2-48. Accordingly, we reverse the




                                                   -7-
judgment of the trial court, vacate appellant’s conviction, and remand to the trial court for further

proceedings consistent with this opinion.

                                                                              Reversed and remanded.




                                                  -8-
