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FEBRUARY 20, 2001

Record No. 1050-00-1

Present: Judges Benton, Agee and Senior Judge

Argued at Chesapeake, Virginia





A. Bonwill Shockley, Judge


Shawn R. Salyer (Louis W. Kershner &
Associates, P.C., on brief), for appellant.

Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief), for appellee.

The sole issue presented by this appeal is
whether the evidence was sufficient for the trial judge to
convict Edgar Barfield of abduction in violation of Code
? 18.2-47. We affirm the conviction.


"Where the sufficiency of the evidence is
challenged after conviction, it is our duty to consider it in the
light most favorable to the Commonwealth and give it all
reasonable inferences fairly deducible therefrom." Higginbotham
v. Commonwealth
, 216 Va. 349, 352, 218 S.E.2d 534, 537
(1975). So viewed the Commonwealth’s evidence proved that a boy,
who was eight years old, was fighting Barfield’s son, who was six
years old, when Barfield arrived. After Barfield got out of his
car to make an inquiry, the boy ran. Barfield chased and caught
the boy and loudly asked why he had taken Barfield’s son’s
knives. When the boy denied taking the knives, Barfield said he
intended to take the boy home to his parents. The boy said
"No" and held onto a fence to resist being taken.
Barfield then grabbed the boy by the waist and forcefully pulled
him from the fence. He then carried the boy to his car.

At the car, the boy freed himself and moved to
the middle of the street. Barfield again grabbed the boy and held
him to the ground. One witness testified that Barfield "held
[the boy] on the ground" such that the boy "was on his
belly, and . . . Barfield took both of his hands and
set them on the [boy’s] back and just held them there."
Barfield held the boy in this manner "for about a
minute." Another witness "saw a child being hurt and
being held down by an adult." She testified that Barfield
was holding the boy who had moved into a fetal position. A
witness testified that Barfield told his son to kick the boy’s
head and held the boy while his son kicked him. Barfield then
released the boy, ran to his vehicle, and drove away.

Barfield later told the police that when he
arrived from work, his son was crying and complaining that the
boy, who was the son’s friend, had stolen knives from their
house. Barfield said he tried to take the boy home to his parents
but the boy refused to go. Barfield then related the following

I had him by one arm; and I said [to my son],
slap him. He was getting on a bicycle, and [my son] pushed him
off. I said, If you were my boy, I would whip your ass. [My son] might have kicked him. I continued to talk to him for a little
bit, and then . . . [my son] may have slapped him, and he fell to
the ground, and he may have kicked him. I never held him down. I
just had him by one arm and that was just to keep him from
kicking and stabbing me with a fork. . . . There was a
thirteen-year-old boy. He may have kicked him upside down and
shook him.

At the conclusion of the evidence, the trial
judge convicted Barfield of abduction. This appeal followed.


In pertinent part, Code ? 18.2-47
provides as follows:

Any person, who, by force, intimidation or
deception, and without legal justification or excuse, seizes,
takes, transports, detains or secretes the person of another,
with the intent to deprive such other person of his personal
liberty . . . shall be deemed guilty of "abduction" . .
. .

Citing Brown v. Commonwealth, 230 Va.
310, 337 S.E.2d 711 (1985), Barfield contends that the evidence
was insufficient to convict him of abduction because the amount
of force he used was incidental to an assault. The holding in Brown
is not germane to the resolution of this appeal. The issue in Brown
concerned whether the conviction for abduction constituted double

where the accused was convicted of both
abduction and rape. See id. at 312-13, 337 S.E.2d
at 713. The Court held as follows:

[O]ne accused of abduction by detention and
another crime involving restraint of the victim, both growing out
of a continuing course of conduct, is subject upon conviction to
separate penalties for separate offenses only when the detention
committed in the act of abduction is separate and apart from, and
not merely incidental to, the restraint employed in the
commission of the other crime.

Id. at 314, 337 S.E.2d at 714. Here,
however, Barfield was charged with and convicted of only the
offense of abduction. We only need to determine whether the
evidence was sufficient to prove abduction as defined in Code
? 18.2-47.

Construing Code ? 18.2-47, the Supreme
Court held as follows:

Code ? 18.2-47 supersedes the common law.
We shall construe it according to its plain meaning and evident
intent. Because it casts its several prohibited acts in the
disjunctive, each is independently sufficient to support a
conviction. Accordingly, the physical detention of a person, with
the intent to deprive him of his personal liberty, by force,
intimidation, or deception, without any asportation of the victim
from one place to another, is sufficient. . . .

We recognize . . . that in rape, robbery, and
assault cases there is usually some detention, and often a
seizure, of the victim. The constitutional problems which may be
created by such an overlapping of crimes are, however, not before
us for decision in this case.

Scott v. Commonwealth, 228 Va. 519, 526,
323 S.E.2d 572, 576 (1984).

Several witnesses testified that Barfield
restrained the boy on the ground while his son kicked the boy.
One of the witnesses heard Barfield tell his son to kick the boy
and testified that Barfield’s son kicked the boy’s head for
approximately a minute while Barfield held the boy. Barfield’s
own statement to the police, while denying that he restrained the
boy on the ground, relates that Barfield held the boy and told
his son to slap him. This evidence was sufficient for the trial
judge to find beyond a reasonable doubt both that Barfield
detained the boy and that he did so with the intent to deprive
the boy of his personal liberty while his son, at Barfield’s
direction, assaulted the boy.

Barfield argues that Johnson v. Commonwealth,
221 Va. 872, 275 S.E.2d 592 (1981), requires that we reverse his
conviction. In that case, the Supreme Court reversed a conviction
for abduction because an intruder held a woman "in
furtherance of his sexual advances and not with the intent to
deprive her of her personal liberty, although such a deprivation
did occur momentarily." Id. at 879, 275 S.E.2d at
597. The intruder, as shown by his actions, had no intention of
detaining because he released her when she resisted. In this
case, Barfield not only detained the boy, but he had the
requisite intent to make that detention a crime. He held the boy
on the ground while ordering his son to kick him. This action
satisfies the requirements of Code ? 18.2-47.

Accordingly, we affirm the conviction.



[1] Pursuant to Code ? 17.1-413, this opinion is not
designated for publication.