Mercedes Christina Russell v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
MERCEDES CHRISTINA RUSSELL
v. Record No. 1435-94-1 MEMORANDUM OPINION * BY
JUDGE NELSON T. OVERTON
COMMONWEALTH OF VIRGINIA OCTOBER 10, 1995
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Frederick B. Lowe, Judge
Richard C. Clark, Assistant Public Defender
(Office of the Public Defender, on brief), for
appellant.
Robert B. Beasley, Jr., Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Appellant was convicted of cruelty and injuries to children,
Code § 40.1-103, and abduction, Code § 18.2-47. At the bench
trial, she was sentenced to five years for each offense, to run
concurrently, with two and one half years suspended. Appellant
contends that the conviction of both offenses constitutes a
violation of the double jeopardy clause. We disagree, and affirm
the convictions.
At trial, witnesses testified to instances in which
appellant mistreated her children, including, inter alia, placing
her daughter in a box in the closet as punishment. Based on this
testimony, the court convicted her of both cruelty and abduction.
Appellant asserts that the restraint upon her child was
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
incidental to the cruelty charge and does not support the
abduction conviction. Using a Blockburger analysis, we find the
two charges to be separate offenses, the evidence supporting
each.
The test set forth in Blockburger is whether each offense
requires proof of an additional fact which the other does not.
Blockburger v. United States, 284 U.S. 299, 304 (1932). A single
act may violate two separate statutes. Id. The conviction of
cruelty to children required that the appellant was the custodian
of the child and that she endangered the life or the health of
the child or did acts that tortured, tormented, beat, or cruelly
treated the child. Code § 40.1-103. The abduction conviction
required that appellant detained or secreted the child with
intent to deprive her of her personal liberty. Code § 18.2-47.
Restraint is not required for an offense of cruelty to children;
no sort of abuse is required for an offense of abduction.
Because we find the two statutes to require proof of
additional facts, and therefore to be two distinct offenses, the
double jeopardy clause is not offended. The convictions are
affirmed.
Affirmed.
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