Deborah Elkins//January 25, 2017
Deborah Elkins//January 25, 2017//
A defendant who participated in a robbery that started when a gunman grabbed a waitress who came outside to empty trash, and then moved inside the Hooters restaurant, forcing a cook to move to an office door, can be convicted of abduction; the Court of Appeals affirms defendant’s conspiracy and robbery convictions, as well as his abduction and firearm convictions, except for a conviction for abduction of an assistant manager.
Defendant concedes he abducted the waitress, but he argues he did not abduct the two assistant managers because their detention was not separate from the restraint used in committing the robbery.
We agree that the movement of the manager within the office was incidental to the robbery and does not prove the separate offense of abduction with intent to extort money.
However, one of the robbers “grabbed” a cook and moved him to an area just outside the office door. The forced movement of the cook constituted abduction. The evidence proves two convictions for abduction with intent to extort money.
Defendant also contends he should have been convicted of three counts of use of a firearm during the commission of a felony, rather than six. He argues the evidence proved only the robberies of the two assistant managers and the abduction of the waitress. We disagree.
Defendant maintains there was no robbery of the waitress because she did not have custodial or fiduciary responsibility for the restaurant’s money. Even if this claim were not procedurally barred, the evidence established that the waitress was robbed. The three employees – the two assistant managers and the waitress – were each subjected to violence and intimidation to accomplish the goal of obtaining the money from the safe. The evidence proved defendant committed three robberies as a principal in the second degree.
We reverse one conviction for abduction and the related conviction for use of a firearm, which the commonwealth concedes, and affirm the remaining convictions.
Affirmed in part and reversed and dismissed in part.
Harper v. Commonwealth (Bumgardner) No. 0319-16-1, Dec. 6, 2016; Norfolk Cir.Ct. (Jones) G. Anthony Yancey for appellant; Donald E. Jeffrey III, Sr. AAG, for appellee. VLW 016-7-298(UP), 5 pp.