Kenneth Wayne Long v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Annunziata
Argued at Norfolk, Virginia
KENNETH WAYNE LONG
MEMORANDUM OPINION * BY
v. Record No. 0399-95-1 JUDGE LARRY G. ELDER
DECEMBER 5, 1995
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
A. Bonwill Shockley, Judge
Curtis T. Brown (Law Office of Curtis Brown, on
brief), for appellant.
Marla Lynn Graff Decker, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on brief),
for appellee.
Kenneth Wayne Long (appellant) appeals his convictions for
cruelty and injuries to children in violation of Code § 40.1-103
and abduction in violation of Code § 18.2-47. Appellant asserts
his convictions violated the double jeopardy bar of multiple
punishments for the same offense. We disagree and affirm the
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convictions for the following reasons.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
1
Appellant's ex-girlfriend, Mercedes Christina Russell (the
mother of the child), was convicted of identical charges in a
separate trial. Ms. Russell appealed her convictions to the
Court of Appeals, also arguing double jeopardy barred her
convictions for both offenses. Another panel of this Court heard
Ms. Russell's case. That panel affirmed Ms. Russell's
convictions, holding the two charges were separate offenses, each
requiring proof of additional facts to satisfy separate elements.
Russell v. Commonwealth, Case No. 1435-94-1 (October 10,
1995)(memorandum opinion).
Appellant lived with his girlfriend, Mercedes Russell and
Russell's daughter, four year old Melanie, from before September
1993 to January 1994. As a means of disciplining Melanie,
appellant constructed a device known as "the box" in the
apartment's master bedroom linen closet. The box was formed with
the aid of a wooden panel that slid up and down the frame of the
closet door, which allowed appellant to restrain Melanie within
the device without allowing her to escape. Appellant and/or
Mercedes Russell placed Melanie in the box on various occasions
for anywhere between five minutes and one hour. As another form
of punishment, appellant and/or Mercedes Russell forced Melanie
to stand in the corner of the master bedroom.
In a bench trial before the Honorable A. Bonwill Shockley,
Circuit Court of the City of Virginia Beach, appellant was
convicted of cruelty and injuries to children and abduction.
During the trial, appellant made appropriate motions to strike
the evidence, arguing the Commonwealth failed to prove facts
necessary to support the two separate charges. The trial court
overruled the motions, reasoning that:
In the abduction count I believe we could look at
depriving a person of personal liberty, and in the
neglect count we can look at a whole list of things
where it says or "cruelly treated"; and I think that if
we took the same set of facts that we had--irregardless
of whether it was a child or an adult--if somebody put
an adult in a box the relative size of the box that
that child was put in under those conditions, nobody
would think twice about it being cruel or about that
person being contained.
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Appellant was convicted of two separate statutory
violations.
Code § 40.1-103, Cruelty and injuries to children, states:
It shall be unlawful for any person employing or
having the custody of any child willfully or
negligently to cause or permit the life of such child
to be endangered or the health of such child to be
injured, or willfully or negligently to cause or permit
such child to be placed in a situation that its life,
health or morals may be endangered, or to cause or
permit such child to be overworked, tortured,
tormented, mutilated, or cruelly treated.
Code § 18.2-47, Abduction, states:
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 or to withhold or
conceal from him any person, authority or institution
lawfully entitled to his charge, shall be deemed guilty
of "abduction[.]"
Appellant argues the double jeopardy doctrine bars his
convictions for both offenses because each conviction relied on
an identical element, namely the act of placing Melanie in the
box.
In his constitutional argument, [appellant]
focuses upon the provision that no person "shall . . .
for the same offense . . . be twice put in jeopardy of
life or limb." U.S. Const., amend. V. [Appellant]
reiterates his view concerning the singularity of his
criminal act and emphasizes the sameness of the
evidence supporting his convictions. . . .
The constitutional provision concerning double
jeopardy embodies three guarantees: "(1) 'It protects
against a second prosecution for the same offense after
acquittal. [(2)] It protects against a second
prosecution for the same offense after conviction.
[(3)] And it protects against multiple punishments for
the same offense.'" Illinois v. Vitale, 447 U.S. 410,
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415 (1980), quoting North Carolina v. Pearce, 395 U.S.
711, 717 (1969). Because both . . . convictions
occurred in a single trial, only the third guarantee,
viz., that against multiple punishments, is pertinent
to the resolution of the present appeal. Turner v.
Commonwealth, 221 Va. 513, 529, 273 S.E.2d 36, 46-47
(1980)[subsequent history omitted].
In a single-trial setting, "the role of the
constitutional guarantee is limited to assuring that
the court does not exceed its legislative authorization
by imposing multiple punishments for the same offense."
Brown v. Ohio, 432 U.S. 161, 165 (1977). And, "the
question whether punishments imposed by a court after a
defendant's conviction upon criminal charges are
unconstitutionally multiple cannot be resolved without
determining what punishments the Legislative Branch has
authorized." Whalen v. United States, 445 U.S. 684,
688 (1980). . . .
The question resolves itself, therefore, into one
of legislative intent where the issue is whether "the
Legislative Branch" has provided that two offenses may
be punished cumulatively. In divining this intent, the
test to be applied is "whether each offense requires
proof of a fact which the other does not." Blockburger
v. United States, 284 U.S. 299, 304 (1932). And, in
applying this test, the two offenses are to be examined
in the abstract, rather than with reference to the
facts of the particular case under review. Whalen, 445
U.S at 694 n.8.
Blythe v. Commonwealth, 222 Va. 722, 725-26, 284 S.E.2d 796,
797-98 (1981); see also United States v. Dixon, 509 U.S. __, 113
S. Ct. 2849 (1993), overruling Grady v. Corbin, 495 U.S. 508
(1990)(reexamining the Blockburger doctrine); Brown v.
Commonwealth, 230 Va. 313, 314, 337 S.E.2d 711, 713
(1985)(stating courts must determine whether the legislature
intended to make each violation a separate offense); Sullivan v.
Commonwealth, 16 Va. App. 844, 846, 433 S.E.2d 508, 509-10
(1993)(en banc)(describing the three distinct protections of the
double jeopardy clause); Phoung v. Commonwealth, 15 Va. App. 457,
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461 n.1, 424 S.E.2d 712, 714 n.1 (1992)(same).
When viewing the two instant charges in the abstract, we
believe the legislature intended the charges to qualify as two
separate offenses within the meaning of the Blockburger test.
See Blythe, 222 Va. at 276, 284 S.E.2d at 796. The conviction of
cruelty to children required that appellant was the custodian of
Melanie and that he endangered the life or the health of Melanie
or did acts that tortured, tormented, beat, or cruelly treated
Melanie. Code § 40.1-103. The abduction conviction required
that appellant detained or secreted Melanie with intent to
deprive her of her personal liberty. Code § 18.2-47. Restraint
is not required for an offense of cruelty to children and abuse
is not required for an offense of abduction.
Because we find the two statutes require proof of additional
facts, and they therefore constitute two distinct offenses, the
double jeopardy clause is not offended. Accordingly, we affirm
the convictions.
Affirmed.
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