Brown v. Com.Annotate this Case
337 S.E.2d 711 (1985)
Bernard William Scott BROWN v. COMMONWEALTH of Virginia.
Record No. 841210.
Supreme Court of Virginia.
November 27, 1985.
*712 Jeffrey M. Gleason (Deborah C. Wyatt, Martin & Martin, Gordon & Wyatt, Charlottesville, on briefs), for appellant.
Lucy H. Allen, Asst. Atty. Gen. (William G. Broaddus, Atty. Gen., on brief), for appellee.
Present: All the Justices.
We granted this appeal to consider whether prosecuting a charge of abduction with intent to defile, following convictions for rape and forcible sodomy at a prior trial, constitutes double jeopardy when the charges arise out of the same criminal episode.
In a voluntary statement made to the police following his arrest, defendant Bernard William Brown admitted all the relevant facts as detailed by the victim at trial. On December 10, 1983, the victim was in a parking lot in the City of Charlottesville preparing to enter her car. Brown approached the car and asked her for a ride to the bus station. She refused, entered her car, and started the engine. Brown opened the driver's door, struck the victim on the side of her head, forced her to move into the passenger's seat, and sat down beside her. The victim testified that Brown "put his hand in his pocket and he said don't try anything, don't go for the door, I'll cut you." The defendant then drove out of the city and parked at a spot in Albemarle County where he raped and sodomized the victim and forced her to sodomize him.
A Charlottesville grand jury returned an indictment for abduction (later amended to abduction with intent to defile), and an Albemarle County grand jury indicted Brown for rape and forcible sodomy. At the Commonwealth's request, the Albemarle General District Court conducted a single preliminary hearing on all three charges. Brown then moved the Circuit Court of the City of Charlottesville to change the venue on the abduction charge to Albemarle County so that the three charges could be tried jointly. The Commonwealth objected, and the court denied the motion.
On April 30, 1984, an Albemarle County petit jury convicted Brown of rape and forcible sodomy. Confirming the jury verdict, the court imposed a sentence of 40 years for rape and 60 years for forcible sodomy, with the sentences to run consecutively.
Brown then moved the Charlottesville court to dismiss the abduction indictment on double jeopardy grounds. The trial court denied the motion, arraigned the accused, and empanelled a jury. Presented with substantially the same evidence adduced at the Albemarle County trial, the Charlottesville jury convicted Brown of abduction with intent to defile and fixed his penalty at 20 years in the penitentiary. Brown appeals from the final judgment imposing that penalty.
The double jeopardy clause of the Fifth Amendment provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb...." *713 It is now well recognized that this clause affords an accused three distinct constitutional guarantees. "It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 2076, 23 L. Ed. 2d 656 (1969). Brown's challenge on this appeal invokes the second and third guarantees. We consider first whether imposition of the penalty on the abduction conviction violates the guarantee against multiple punishments.
Brown argues that he cannot be punished for both rape and abduction with intent to defile arising out of a continuing criminal enterprise because such conduct constitutes the same offense under the test articulated in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932). "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 which the other does not." Id. at 304, 52 S. Ct. at 182.
In Scott v. Commonwealth, 228 Va. 519, 526, 323 S.E.2d 572, 576 (1984), we held that the abduction statute, Code § 18.2-47, changed the common-law rule requiring proof of asportation so that proof of mere detention is sufficient. Relying upon Scott, Brown contends that, because every rape involves some form of detention, abduction with intent to defile is necessarily a part of the crime of rape and that a "stacking" of separate charges, even though prosecuted in a single trial, violates the double jeopardy guarantee against multiple punishments for the same offense.
We anticipated this argument but found it unnecessary to adjudicate the question in Scott. "[I]n 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." 228 Va. at 526, 323 S.E.2d at 576.
The issue is squarely before us now. We do not agree that resolution of the question is controlled by the Blockburger test. The Supreme Court has decided that this test need not be applied when the intent of the legislature can be gleaned from a reading of the relevant statutes. Garrett v. United States, ___ U.S. ___, 105 S. Ct. 2407, 2412, 85 L. Ed. 2d 764 (1985). "Where the same conduct violates two statutory provisions, the first step in the double jeopardy analysis is to determine whether the legislature... intended that each violation be a separate offense." Id. at ___, 105 S. Ct. at 2411. See also Missouri v. Hunter, 459 U.S. 359, 368, 103 S. Ct. 673, 679, 74 L. Ed. 2d 535 (1983); Albernaz v. United States, 450 U.S. 333, 340, 101 S. Ct. 1137, 1142, 67 L. Ed. 2d 275 (1981); Whalen v. United States, 445 U.S. 684, 691-92, 100 S. Ct. 1432, 1437-38, 63 L. Ed. 2d 715 (1980).
We adhere to our decision in Scott that detention is a discrete species of abduction. We are of opinion, however, that in the enactment of the abduction statute the General Assembly did not intend to make the kind of restraint which is an intrinsic element of crimes such as rape, robbery, and assault a criminal act, punishable as a separate offense. The Supreme Court of North Carolina, construing the kidnapping and sex-offense statutes in that state, reached the same conclusion. State v. Fulcher, 294 N.C. 503, 243 S.E.2d 338 (1978).
We hold, therefore, that one 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 *714 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. Other courts follow a similar rule. See Iowa v. Folck, 325 N.W.2d 368 (Iowa 1982); Bass v. State, 380 So. 2d 1181 (Fla. App.1980).
The evidence in the record before us shows that the detention underlying the abduction conviction was not the kind of restraint that is inherent in the act of rape. Abduction was established as a fact once the Commonwealth proved that Brown had deprived his victim of her liberty by physical assaults and threats of violence. It is true that the abduction was prolonged by asportation, but the initial offense was remote in terms of time and distance from the sexual assault and, in terms of quality and quantity, the acts of force and intimidation employed in the abduction were separate and apart from the restraint inherent in the commission of the rape.
Applying the rule we have announced, we hold that the abduction and the rape were different offenses and that the several penalties imposed do not offend the double jeopardy guarantee against multiple punishments.
This holding does not end our inquiry. We must consider now whether the double jeopardy guarantee against successive prosecutions applies here. Brown argues on brief that the Supreme Court has fashioned "a more flexible test than the rigid Blockburger test that will operate to block a successive prosecution after conviction, even when the Blockburger test is not satisfied." The flexible test, he continues, "looks at the evidence actually relied on in the initial prosecution and ... [if] the same evidence will be relied on in a subsequent prosecution ... double jeopardy will bar the second prosecution." We believe Brown misstates the rule he invokes.
Brown refers us to a footnote in an opinion where the Supreme Court said that "successive prosecutions will be barred in some circumstances where the second prosecution requires the relitigation of factual issues already resolved by the first." Brown v. Ohio, 432 U.S. 161, 166 n.6, 97 S. Ct. 2221, 2226 n.6, 53 L. Ed. 2d 187 (1977). By way of example, the Brown Court cited Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 1189 (1970), and In re Nielsen, 131 U.S. 176, 9 S. Ct. 672, 33 L. Ed. 118 (1889). In Ashe, the defendant had been acquitted of robbing one of a group of poker players. Applying collateral-estoppel principles, the Court held that a second prosecution for robbery of other members of the group was barred because the factual question of his presence at the robbery had been litigated and resolved in his favor by the verdict in the first prosecution. In Nielsen, the defendant had been convicted of unlawful cohabitation with two wives and then tried and convicted in a second trial of adultery with one of the women. The Court ruled that because unlawful cohabitation was "a crime which has various incidents included in it, [the defendant] cannot be a second time tried for one of those incidents". In re Nielsen at 188, 9 S. Ct. at 676. The proper test is not whether the prosecution presented the same evidence in both trials, but whether "the evidence required to support a conviction upon one of [the charges] would have been sufficient to warrant a conviction upon the other." Id., quoting Morey v. Commonwealth, 108 Mass. 433, 434 (1871).
As another example of circumstances which he believes justifies application of the same-evidence rule, Brown cites Jordan v. Commonwealth of Virginia, 653 F.2d 870 (4th Cir.1980). There, Jordan was convicted of the misdemeanor of obtaining a controlled drug by using a forged prescription and, in a second trial, of felonious possession of the same substance. The Court reversed the second conviction on double jeopardy grounds because "the evidence necessarily used by the government in prosecuting the earlier misdemeanor charge would totally have sufficed to sustain the later felony conviction." 653 F.2d at 874.
*715 As we have said, Brown's position is that when the evidence relied upon in the second trial is the same as "the evidence actually relied on in the initial prosecution [emphasis added]", the second prosecution is constitutionally barred. But, as the cases we have discussed plainly teach, the double-jeopardy guarantee against successive prosecutions applies only when the evidence necessary to support the second conviction was "necessarily used" or "required" to prove the first offense or "where the second prosecution requires the relitigation of factual issues already resolved by the first."
True, the Commonwealth introduced evidence of Brown's conduct in the parking lot in both trials. While that evidence was necessary to convict in the abduction trial, it was not required for a conviction in the earlier rape trial. The victim testified that Brown parked her car in Albemarle County "out in the middle of nowhere", told her to undress, and "grabbed [her] hair and started pulling [her] head way back and kept, with his voice, getting more and more violent". "[H]is hand came up to my throat," she said, and "all of his weight was coming down on me and ... I could hardly breathe."
Entirely aside from the proof of Brown's conduct in the parking lot, this testimony and the uncontradicted evidence of penetration was sufficient to establish that Brown had "sexual intercourse with a female ... against her will, by force, threat or intimidation". Code § 18.2-61.
Some overlap in evidence is inevitable when separate offenses arising out of the same criminal episode are prosecuted in separate trials. This, without more, does not constitute double jeopardy. Because it is clear that the evidence necessary to support Brown's conviction in the abduction trial was not required to prove the crime of rape in the first trial, we reject the defendant's constitutional challenge, and we will affirm the judgment entered below.
 For the sake of clarity, we refer to the Albemarle County charges in the singular.
 Brown concedes that abduction with intent to defile is not lesser-included in the offense of rape, because the minimum penalty for the former is greater than that for the latter.