Brown v. Commonwealth

74 Va.App. 721

872 S.E.2d 204

Joseph E. BROWN

v.COMMONWEALTH of Virginia

Record No. 0598-21-2

Court of Appeals of Virginia.

MAY 10, 2022

Wayne Orrell, for appellant.

Matthew J. Beyrau, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Present: Judges Huff, Athey and Fulton

OPINION BY JUDGE GLEN A. HUFF

Following a bench trial in the Charles City County Circuit Court (the "trial court"), Joseph Brown ("appellant") was convicted of abduction in violation of Code § 18.2-47. He now appeals, first arguing the evidence was insufficient to support his conviction. Second, he contends the trial court erred in denying his motion to disqualify the prosecutor for an alleged conflict of interest with the victim in this case. Third, he argues that even if he abducted the victim, Code § 19.2-59 provided him a legal justification for doing so. Finally, he claims the prosecutor violated his due process rights by choosing to prosecute this case as a felony after appellant rejected a misdemeanor plea offer. Because the first three arguments lack merit and the last is waived, this Court affirms appellant's conviction.

I. BACKGROUND

This Court "consider[s] the evidence and all reasonable inferences flowing from that evidence in the light most favorable to the Commonwealth, the prevailing party [below]." Williams v. Commonwealth , 49 Va. App. 439, 442, 642 S.E.2d 295 (2007) (en banc ) (quoting Jackson v. Commonwealth , 267 Va. 666, 672, 594 S.E.2d 595 (2004) ). Viewed through this lens, the evidence is as follows:

The Confrontation

On July 10, 2020, Rhonda Russell, Charles City County's Community Development Director and Assistant County Administrator, drove to appellant's home to check whether appellant remedied a previous ordinance violation regarding an excess of inoperable vehicles that sat in his yard. Russell "drove in[to appellant's driveway] enough to see ... significantly fewer cars" than there were at the time of the violation. Russell then drove to her next site down the street from appellant's house.

After parking her car in the next site's driveway, Russell sat in the car and took notes. While doing so, appellant approached her vehicle and tapped on her window. Russell rolled down her window, and appellant told her he was "tired of the county messing with [him]" and asked her why she was on his property a few minutes before. In response, Russell gave appellant her business card and told him to call her office to speak with her about his citation. Appellant then became irritable, cursed at Russell, and said, "[Y]ou're going to talk about this right now." Russell told appellant that she did not want to talk about the issue because appellant was upset.

Russell then put her car in reverse and attempted to leave the scene but noticed appellant's car was blocking her egress from the driveway. Russell asked appellant to move his car, but appellant refused, saying, "I'm not going to move the car. You're going to stay here and you're going to tell me what you're doing here." At this point, Russell felt she "did not" have the freedom to leave the scene and experienced her "anxiety ... going through the roof" with her "heart ... beating fast"—notwithstanding the fact that she was generally "not an anxious or very emotional person."

Russell told appellant she would call the police if appellant did not move his car, to which appellant responded that he would also call the police. Russell then tried to contact the sheriff's department, but her calls initially did not go through because she was in a rural area with poor cell service. After numerous attempts, Russell eventually got in contact with the sheriff's department and requested immediate assistance. During this call, appellant was "outside of the car[,] ... [was] very agitated and irritable, [and was] flailing his arms."

After Russell's call, appellant also called the police, asked them to come to the scene to resolve the issue, and told the 911 dispatcher that he "got [Russell] blocked in." While appellant was talking with the dispatcher, Russell looked for a way out of the situation and ultimately escaped by driving her vehicle through the grass and a drainage ditch. She then parked on the street adjacent to the site, and from there, both appellant and Russell waited at the scene for the police to arrive and take their statements.

Appellant's Motion to Disqualify the Commonwealth's Attorney

Before trial, appellant moved to disqualify the entire Office of the Charles City County Commonwealth's Attorney from prosecuting the case, alleging a financial conflict of interest between Russell and that office. In his motion, appellant cited the fact that the County Administrator's office—where Russell worked—created the budget for the Commonwealth's Attorney's office.

At the hearing on appellant's motion, Russell testified that although she worked in the County Administrator's office and "prepares the Community Development department's budget for review," she had no hand in creating or working on the budget for the Commonwealth's Attorney's office. Additionally, Russell testified that on the date of this incident, she was acting in her role as the Community Development Director, not the Assistant County Administrator, as she worked two jobs within Charles City County Government.

The Commonwealth's Attorney—who happened to be the individual prosecutor in this case—represented that even though the County Administrator's office prepared the budget for his office, it was the Charles City County Board of Supervisors¹ who approved the budget, not the County Administrator's office.

The trial court found no conflict of interest and denied appellant's disqualification motion. Appellant renewed his motion at trial, but the trial court denied that motion as well.

Appellant's Trial

At the close of the Commonwealth's case, appellant moved to strike the evidence. Among other things, he argued that Code § 19.2-59² provided him a legal justification for detaining Russell. He specifically argued that the statute applied to Russell because she was a government agent who intruded onto his private property and searched for violations without a warrant. The trial court disagreed, ruling that Code § 19.2-59 did not apply to Russell and did not provide a legal justification for appellant's detention of Russell.

Appellant testified in his defense. He claimed he did not intend to abduct Russell, highlighted he made no physical contact with her, and relayed that he had suffered from seven strokes prior to his encounter with her.

The trial court found appellant guilty of abduction and sentenced him to three years’ incarceration with all time suspended. At the sentencing hearing, appellant's counsel revealed that the felony abduction charge was initially dismissed in general district court and that the prosecutor then obtained a true bill from a grand jury for the charge. The prosecutor responded that he offered appellant a plea deal where appellant would plead guilty to misdemeanor disorderly conduct in exchange for the Commonwealth dropping the felony abduction charge, but appellant refused.

Appellant's counsel argued the prosecutor's decision to prosecute this case as a felony after the plea negotiation stage was "horribly abusive" and remarked that appellant "exercis[ed] his [c]onstitutional right and because he did that he was punished severely."³ Appellant's counsel did not accompany these statements with a motion to dismiss the case for prosecutorial vindictiveness.

This appeal followed.

II. ANALYSIS

Sufficiency of the Evidence

A. Standard of Review

Appellant's first assignment of error challenges the sufficiency of the evidence to support his conviction for abduction. "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 (2008). The issue in these kinds of challenges is whether "upon review of the evidence in the light most favorable to the prosecution ... ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ " Pijor v. Commonwealth , 294 Va. 502, 512, 808 S.E.2d 408 (2017) (quoting Dietz v. Commonwealth , 294 Va. 123, 132, 804 S.E.2d 309 (2017) ). "If there is evidence to support the conviction[ ], the reviewing court is not permitted to substitute its own judgment, even if its opinion might differ from the conclusions reached by the finder of fact at the trial." Synan v. Commonwealth , 67 Va. App. 173, 185, 795 S.E.2d 464 (2017) (quoting Courtney v. Commonwealth , 281 Va. 363, 366, 706 S.E.2d 344 (2011) ). This Court conducts a de novo review when interpreting a statute. Commonwealth v. Herring , 288 Va. 59, 66, 758 S.E.2d 225 (2014).

B. The Evidence Was Sufficient to Support Appellant's Conviction for Abduction

Appellant contends the evidence was insufficient to support his conviction for abduction. His argument primarily rests on two facts: (1) that he did not have any physical contact with Russell during their encounter and (2) that Russell eventually maneuvered around his car.⁴

A person is guilty of abduction if, "by force, intimidation or deception, and without legal justification or excuse, [he or she] seizes, takes, transports, detains or secretes another person with the intent to deprive such other person of his personal liberty." Code § 18.2-47(A). Put simply, the actus reus of the crime is a taking, transporting, or detention of another, while the mens rea of the crime is a specific intent to deprive another of her liberty. Walker v. Commonwealth , 47 Va. App. 114, 120, 622 S.E.2d 282 (2005) ("[A] conviction under [the abduction statute] requires only a showing of physical detention of a person, with the intent to deprive him of his personal liberty, by force, intimidation, or deception, without more." (citations and internal...