                        COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Annunziata and Agee
Argued at Alexandria, Virginia


DAVID RALPH HARTNETT
                                            MEMORANDUM OPINION * BY
v.   Record No. 1507-00-2                 JUDGE ROSEMARIE ANNUNZIATA
                                                 JUNE 19, 2001
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG
                       John W. Scott, Jr., Judge

             Christopher D. Small, Assistant Public
             Defender, for appellant.

             Shelly R. James, Assistant Attorney General
             (Mark L. Earley, Attorney General, on brief),
             for appellee.



     The appellant, David Ralph Hartnett, appeals his conviction

for abduction, in violation of Code § 18.2-47.        Hartnett

contends:     (1) the evidence was insufficient to prove the

specific intent necessary to convict him of abduction; and

(2) his conviction for battery arising out of the same incident

barred his conviction for abduction under the Double Jeopardy

Clause.    Because we find the evidence was insufficient to prove

specific intent, we reverse Hartnett's conviction and dismiss

the indictment.



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                              BACKGROUND

     On appeal, we view the evidence and all inferences

reasonably deducible therefrom, in the light most favorable to

the Commonwealth.   Higginbotham v. Commonwealth, 216 Va. 349,

352, 218 S.E.2d 534, 537 (1975).    On the evening of June 21,

2000, D.S., a seventeen-year-old high school student, and a

friend, H.B., were visiting the Rappahannock Regional Library in

the City of Fredericksburg.    While they were reading on the

second floor of the library, they observed Hartnett standing

near a bookshelf about fifteen feet away, watching them from

behind a book that he was holding in front of his face.

     As the girls discussed their plans to leave, Hartnett ran

up behind D.S. and grabbed her around the waist.   He started

"thrusting" his pelvic area into her buttocks and continued to

hold her for several seconds as she tried to remove his arms.

When D.S. started to scream, Hartnett released her and ran out

of the library.   D.S. testified that the restraint and the

thrusting motion began and ended at the same time and that both

lasted "about five seconds."

     Deputy Sheriff Scott Sullivan stopped Hartnett

approximately four blocks from the library, five to ten minutes

after Sullivan was dispatched to the area.   Hartnett denied

visiting the library that evening, a denial he recanted at trial

when he affirmed seeing the girls there.   He further testified

that D.S. gestured to him "in sort of an erotic sort of way."

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He admitted he touched her breast but denied any "rubbing and

grabbing."

     Hartnett was charged with assault and battery, in violation

of Code § 18.2-57, and abduction, in violation of Code

§ 18.2-47.    Hartnett was tried on the former in the Juvenile and

Domestic Relations District Court.      He appealed his conviction

for misdemeanor assault and battery to the circuit court, but

withdrew the appeal before the trial on the abduction charge.

At the close of the Commonwealth's evidence on the abduction

charge, Hartnett moved to dismiss the charge.     The court denied

his motion and found him guilty of abduction.

                              ANALYSIS

     In order to prove Hartnett abducted D.S., the Commonwealth

had to prove he seized or detained D.S. "with the intent to

deprive [her] of [her] personal liberty . . . ."     Code

§ 18.2-47.    Hartnett contends the evidence only proves he

committed assault and battery, but fails to prove he seized D.S.

with the specific intent to deprive her of her personal liberty.

We find that this case is controlled by Johnson v. Johnson, 221

Va. 872, 275 S.E.2d 592 (1981), and reverse Hartnett's

conviction.

     In Johnson, the defendant knocked on the victim's apartment

door and asked her for a drink of water.     When the victim turned

to get the glass of water, the defendant came up behind the

victim and grabbed her.   The defendant held the victim for ten

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to fifteen seconds while "rub[bing] his hips back and forth on

[her] rear end."     The Virginia Supreme Court held:

             When [the defendant] put his arms around
             [the victim] and held her tightly this was
             done in furtherance of his sexual advances
             and not with the intent to deprive her of
             her personal liberty, although such
             deprivation did occur momentarily.

Id. at 879, 275 S.E.2d at 597.     Accordingly, the Supreme Court

held the evidence was insufficient to support a conviction for

abduction.     Id.

     The facts of this case are virtually indistinguishable from

those of Johnson.     Hartnett approached the victim, wrapped his

arms around her waist and thrust up against her.    The restraint

and the thrusting motion were simultaneous and continued for

five seconds.    As in Johnson, no evidence established that

Hartnett held the victim with the specific intent to deprive her

of her liberty.

     Accordingly, we reverse Hartnett's conviction for abduction

and dismiss the indictment. 1



                                           Reversed and dismissed.




     1
       Because we reverse on the ground the evidence was
insufficient to prove abduction, we need not address Hartnett's
contention that the abduction conviction constituted a violation
of the Double Jeopardy Clause.

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