                   COURT OF APPEALS OF VIRGINIA


Present:   Judges Coleman, Willis and Bray


SEAN A. BOONE

v.         Record No. 1473-94-1        MEMORANDUM OPINION *
                                   BY JUDGE SAM W. COLEMAN III
COMMONWEALTH OF VIRGINIA                  JULY 5, 1995


           FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
                      Nelson T. Overton, Judge

           (Kevin P. Shea, on brief, for appellant.)
           Appellant submitting on brief.
           (James S. Gilmore, III, Attorney General;
           Thomas C. Daniel, Assistant Attorney General,
           on brief, for appellee.) Appellee submitting
           on brief.



     Sean A. Boone was convicted of carjacking, abduction of

Casey Mesic, use of a firearm in the abduction of Casey Mesic,

and use of a firearm (second offense) in the robbery of Cynthia

Mesic.   He contends that the abduction of Casey Mesic was

incidental to the carjacking of Cynthia Mesic's automobile and,

therefore, not a separate offense for which he could be

convicted; that the trial court erred by finding him guilty of

the use or display of a firearm in a robbery when he was not

prosecuted for robbery, but rather, was prosecuted for

carjacking; and that identity evidence was unduly suggestive and

did not support his convictions.   For the following reasons, we

affirm the decisions of the trial court.

     *
       Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
     At 9:30 p.m., Cynthia Mesic and her two daughters were

returning home in their car.   They stopped by a cluster of

mailboxes so that Casey Mesic, age ten, could retrieve the

family's mail.   As Casey was returning to the car, Sean Boone,

the appellant, grabbed Casey, put his hand over her mouth, and

placed a gun to her temple.    Cynthia Mesic thought that Boone

"was going to run with her" daughter.   Boone was directing Casey

to tell her mother to get out of the car.   Cynthia Mesic and her

daughter, Megan, age seven, got out of the car and ran to where

Boone was directing them to go by pointing his gun.   Boone then

released Casey and drove off in the Mesic car.
     Approximately a week later, a Portsmouth police officer saw

Sean Boone driving the Mesic car, but the car was bearing Florida

license plates registered to another car.   Boone told the officer

that he had gotten the car earlier in the day from James Bowen.

Later, Boone told the officer the car came from Willie Bowen.

Boone had the car's registration in a small black book, which

also contained his driver's license, and he had the keys to the

vehicle on his key chain.

     Cynthia Mesic and Casey Mesic positively identified Sean

Boone at trial as the person who forcibly grabbed Casey at

gunpoint.   The description of Boone that Cynthia gave the

officers after the carjacking was strikingly similar to Boone's

actual physical characteristics.   The incident took place in a

well-lit location of the housing complex, and Boone was as close



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as five feet to Cynthia Mesic.

     Boone testified that an acquaintance by the name of DeShawn

(last name unknown) had stolen the car and that he was just

borrowing it.

                                 I.

     Boone contends that he cannot be prosecuted for the

abduction of Casey Mesic and carjacking because of the

constitutional protection against double jeopardy.   He contends

that the element of detention necessary for abduction was

incidental to the carjacking and that the same act cannot

constitute two crimes.
     "The applicable rule is that where the same act or

transaction constitutes a violation of two distinct statutory

provisions, the test to be applied to determine whether there are

two offenses or only one is whether each provision requires proof

of a fact that the other does not."    Blockburger v. U.S., 284

U.S. 299, 304 (1932).    "The Supreme Court later stated that 'if

each [offense] requires proof of a fact that the other does not,

the Blockburger test is satisfied notwithstanding any substantial
overlap in the proof offered to establish the crimes.'"     Hill v.

Commonwealth, 2 Va. App. 683, 706, 347 S.E.2d 913, 926 (1986)

(quoting Iannelli v. U.S., 420 U.S. 770, 785 n.17 (1975)).

     The abduction of Casey Mesic was a separate and distinct

act, apart from the seizure of Cynthia Mesic's automobile.     See
Brown v. Commonwealth, 230 Va. 310, 337 S.E.2d 711 (1985).



                                 -3-
Abduction of Casey Mesic and carjacking were two separate crimes

without common elements.   The crime of carjacking requires the

prosecution to prove facts and elements different from those

necessary to prove abduction, and vice versa.   Boone was properly

charged with and convicted of both offenses.    See Blyth v.

Commonwealth, 222 Va. 722, 726, 284 S.E.2d 796, 798 (1981)

(citing Whalen v. U.S., 445 U.S. 684, 694 n.8 (1980)).

                                 II.
     The appellant next contends that he was improperly convicted

of the use or display of a firearm in a threatening manner while

committing robbery because the Commonwealth did not charge or

convict him of the predicate offense of robbery.

     Under Code § 18.2-53.1, proof of the underlying predicate

felony is a distinct element that must be proven beyond a

reasonable doubt.   See Jones v. Commonwealth, 218 Va. 18, 22, 235

S.E.2d 313, 315 (1977).    Use of a firearm in the commission of a

robbery and robbery are separate and independent crimes.       See
Morris v. Commonwealth, 228 Va. 484, 492, 323 S.E.2d 567, 572

(1984).   "There is no language in the statute which suggests that

the legislature intended that an accused must be charged and

prosecuted for the underlying felony.   That decision is left to

the Commonwealth's attorney in whom discretion is vested."       Davis

v. Commonwealth, 4 Va. App. 27, 30, 353 S.E.2d 905, 907 (1987).

To obtain a conviction for a violation of Code § 18.2-53.1, the

Commonwealth is not required to separately indict and prosecute


                                 -4-
the defendant for the underlying predicate felony.    Id. at 31,

353 S.E.2d at 907.   Although Boone was charged and convicted of

carjacking, the evidence was sufficient to prove beyond a

reasonable doubt the crime of robbery.   Accordingly, the trial

court did not err in finding Boone guilty of use of a firearm in

the commission of robbery in violation of Code § 18.2-53.1.

                               III.

     Boone next contends that the Commonwealth's witnesses

improperly identified him as the carjacker due to an unduly

suggestive identification process.    Boone argues that several

weeks after the carjacking, a friend of the victims mailed them a

picture of him from a local newspaper and that because they had

seen the picture, they were able to identify him from the

photograph when he entered the courtroom for his preliminary

hearing.
     To determine the reliability of a victim's eyewitness

identification and to evaluate the likelihood of

misidentification due to any suggestive factor, a trial court

shall consider
          the opportunity of the witness to view the
          criminal at the time of the crime, the
          witness' degree of attention, the accuracy of
          the witness' prior description of the
          criminal, the level of certainty demonstrated
          by the witness at the confrontation, and the
          length of time between the crime and the
          confrontation.

Townes v. Commonwealth, 234 Va. 307, 331, 362 S.E.2d 650, 663

(1987), cert. denied, 485 U.S. 971 (1988).    In this case, the


                                -5-
area where the crime was committed was well-lit; the assailant

was within five feet of Cynthia Mesic at the time of the

carjacking; and her attention was focused entirely on the

assailant during the attack because he was holding her daughter.

Both victims, Casey Mesic and Cynthia Mesic, positively

identified Boone at trial as the carjacker.   The description of

her assailant that Cynthia Mesic gave to police was nearly

identical to the actual physical characteristics of Sean Boone.

The victims' identifications are reliable.
     We, therefore, affirm.

                                                           Affirmed.




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