Richard Alan Swezey v. Commonwealth of Virginia ( 2023 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Fulton, Friedman and Raphael
PUBLISHED
Argued at Lexington, Virginia
RICHARD ALAN SWEZEY
OPINION BY
v. Record No. 0490-22-3 JUDGE STUART A. RAPHAEL
JUNE 13, 2023
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CAMPBELL COUNTY
John T. Cook, Judge
Matthew L. Pack (M. Pack Law, PLLC, on brief), for appellant.
Ken J. Baldassari, Assistant Attorney General (Jason S. Miyares,
Attorney General, on brief), for appellee.
Following a jury trial, the trial court convicted Richard Alan Swezey of statutory burglary,
abduction, using a firearm in the commission of a felony, assault, and two counts of brandishing a
firearm. Swezey claims that the trial court abused its discretion in refusing to strike the abduction
charge, arguing that his detention of the victim was incidental to the assault and to one of the
brandishing offenses. We find, however, that the detention was not incidental to those offenses
because those crimes were completed before Swezey detained the victim. And Swezey forfeited his
other argument that the trial court denied him due process at sentencing by penalizing him for
electing a jury trial. We thus affirm the judgment, but we remand the case to the trial court to
correct a clerical error in the sentencing order.
BACKGROUND
On appeal, we recite the facts “in the ‘light most favorable’ to the Commonwealth, the
prevailing party in the trial court.” Hammer v. Commonwealth, 74 Va. App. 225, 231 (2022)
(quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). Doing so requires that we “discard”
the defendant’s evidence when it conflicts with Commonwealth’s evidence, “regard as true all
the credible evidence favorable to the Commonwealth,” and read “all fair inferences” in the
Commonwealth’s favor. Cady, 300 Va. at 329 (quoting Commonwealth v. Perkins, 295 Va. 323,
323-24 (2018)).
After 29 years of marriage, Swezey and his wife, C.S. (“wife”), separated in May 2019,
and wife moved to Campbell County. They had no contact for nine months. But in March 2020,
wife emailed Swezey that she wanted a divorce. She filed for divorce that September.
On November 6, 2020, wife and her co-worker, M.G., went to wife’s townhouse, as M.G.
was interested in buying some of wife’s furniture. After entering her home and greeting her two
dogs, wife turned to see Swezey standing in the foyer. Wife was shocked to see him, as he
appeared unannounced and uninvited. Swezey looked angry as he said, “[W]e need to talk.” But
wife refused to speak with him alone and asked M.G. to go outside with her. Outside, wife asked
M.G. not to leave her alone with Swezey. M.G. agreed, and the two women went back inside.
After wife mentioned her sale of furniture to M.G., Swezey offered to put the items in
M.G.’s van if M.G. would then leave, but M.G. refused. Wife then agreed to talk to Swezey in
the kitchen. M.G. stayed in the living room as wife and Swezey moved to the kitchen. Swezey
repeated his demand to talk to wife alone; wife refused and suggested inviting over Swezey’s
brother. Swezey then accused wife of taking everything from him, including his children and his
money. He repeated that M.G. needed to leave so they could talk alone; wife again refused.
Swezey then pulled out a handgun and pointed it at wife. When wife asked if he was
there to kill her, he nodded slowly and said “yes, but I’m not going to go down for this.” Wife
ran around the kitchen table and tried to open the back sliding door, but she fumbled with the
handle and could not escape. Unable to get away, she dropped to the floor. Swezey then stood
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over her, pointing the gun to her head; wife screamed and pleaded with him not to kill her. Wife
was in shock and believed she was going to die.
Hearing wife’s screams, M.G. entered the kitchen. M.G. saw Swezey holding wife down
with one hand while pointing the gun to her head with the other. M.G. called 911 and told
Swezey “to get off” wife. Swezey then pointed the gun at her, ordering that she end the 911 call
and leave. As Swezey lowered his gun, saying that he just wanted to talk, M.G. ran out the front
door, remaining on the call with the 911 operator.
Hoping to persuade Swezey to leave, wife slowly stood up, saying she would talk to him.
Swezey then locked the front door. Wife said she would speak with him if he handed her the
gun. Swezey gave her the magazine but retained the gun itself. When Swezey repeated that he
was “not going to go to jail for this,” wife promised to send the police away if they arrived. She
went outside to tell M.G. that everything was “fine.” Wife also told the police on M.G.’s phone
that she did not need their help. She then went back inside.
Returning to the kitchen, Wife found Swezey scrolling through her phone. He made her
repeat her promise to send the police away if they arrived. But then wife’s neighbor, who was a
police officer, knocked on the front door. When wife opened the door, the neighbor said he
heard that something was going on and that a gun was involved. Wife told him that everything
was “fine” and that she had the gun’s magazine in her pocket. But the neighbor noticed that wife
was shaking and nervous, and he refused to let her go back inside. The police arrived soon after
and arrested Swezey.
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When the officers discovered a bullet in Swezey’s left-front pocket, he responded, “Oh
shit, that must have been the one in the chamber.” About ten days later, wife found another
magazine for Swezey’s pistol hidden under a mattress in an upstairs bedroom.1
Swezey testified at trial that he was surprised by wife’s decision to divorce him. He said
that he went to her home to discuss private matters and offer financial support and that he
brought the gun because he was carrying a lot of cash. Swezey said he regretted pointing the gun
but did so out of frustration with wife’s refusals to be alone with him. He claimed that after wife
dropped to the floor, he reached down to help her up. He denied pointing the gun at M.G. when
she entered the kitchen.
The jury found Swezey guilty of statutory burglary, abduction, assault, using a firearm in
the commission of a felony, and two counts of brandishing a firearm (one for wife and the other
for M.G.). At his sentencing hearing, Swezey requested that the court “check the box” on the
sentencing-guidelines form to reduce the low end of the guidelines because he had expressed
remorse. The court commented that “when you plead not guilty and you go through a full jury
trial, I just can’t check the box that he accepted responsibility.” The court sentenced Swezey to
33 years and 36 months of incarceration, with 27 years and 36 months suspended. This appeal
followed.
ANALYSIS
A. Swezey’s detention of wife was not incidental to the assault and brandishing offenses.
Swezey first argues that the trial court should have dismissed the abduction charge
because wife’s detention was incidental to his crimes of brandishing a gun and assaulting her.
When a defendant is “accused of abduction by detention and another crime involving restraint of
1
Swezey admitted at trial that when wife walked outside, he went to the bedroom and put
the spare magazine under the mattress.
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the victim, both growing out of a continuing course of conduct,” the defendant may be convicted
of “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.” Brown v. Commonwealth, 230 Va. 310, 314 (1985). “[W]hether the detention
established by the evidence is ‘the kind of restraint which is an intrinsic element of crimes such
as rape, robbery, and assault,’ is a question of law to be determined by the court.” Lawlor v.
Commonwealth, 285 Va. 187, 229 (2013) (quoting Brown, 230 Va. at 314).
Swezey claims that the trial court should have analyzed this issue by applying the “four
factors” set out in Hoyt v. Commonwealth, 44 Va. App. 489, 494 (2004).
Those factors are: (1) the duration of the detention or asportation;
(2) whether the detention or asportation occurred during the
commission of a separate offense; (3) whether the detention or
asportation which occurred is inherent in the separate offense; and
(4) whether the asportation or detention created a significant
danger to the victim independent of that posed by the separate
offense.
Id. (quoting Government of Virgin Islands v. Berry, 604 F.2d 221, 227 (3d Cir. 1979)).
Hoyt’s four-factor test, however, is in tension with the Supreme Court’s later decision in
Lawlor, which “express[ed] no opinion on the Hoyt factors.” Lawlor, 285 Va. at 227 n.14. The
Court there declined to apply Hoyt’s four-factor test to decide whether the victim’s abduction
was incidental to her murder and rape. The Court “disagree[d] that Hoyt” applied. Id. at 225. It
instead reduced the inquiry to a single question: “The only issue when abduction is charged
alongside an offense for which detention is an intrinsic element is whether any detention
exceeded the minimum necessary to complete the required elements of the other offense.” Id.
(emphasis added).
Since then, our jurisprudence has reflected the tension between Lawlor and Hoyt. In one
published decision, we cited only Lawlor’s test, without mentioning Hoyt’s four factors. See
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Epps v. Commonwealth, 66 Va. App. 393, 403 (2016), aff’d on other grounds, 293 Va. 403(2017). In another, we cited both tests and said that Lawlor did not overrule Hoyt, but we did not
systematically apply the Hoyt factors in concluding that the abduction there “was not merely
incidental to the” appellant’s other crimes. See Vay v. Commonwealth, 67 Va. App. 236, 251
(2017). Our subsequent unpublished2 opinions have sometimes added, after citing the Lawlor
test, that “[i]n making this determination, [the] four factors [from Hoyt] are relevant.” Garay-
Amaya v. Commonwealth, No. 0417-22-4, slip op. at 7, 2023 WL 2655500, at *4 (Va. Ct. App.
Mar. 28, 2023); Raven v. Commonwealth, No. 1108-21-1, slip op. at 6, 2022 WL 3588377, at *3
(Va. Ct. App. Aug. 23, 2022) (“relevant”). Sometimes we have cited both tests but noted that
“the central question” is the one presented by Lawlor. Holmes v. Commonwealth, No.
0951-21-2, slip op. at 8, 2022 WL 2026807, at *4 (Va. Ct. App. June 7, 2022); Conyers v.
Commonwealth, No. 1635-15-2, slip op. at 8 n.2, 2016 WL 7364797, at *4 n.2 (Va. Ct. App.
Dec. 20, 2016) (noting that the Hoyt “factors are essentially guideposts in addressing the ultimate
issue” under Lawlor). Other times we have noted the tension more explicitly. See Montgomery
v. Commonwealth, No. 1283-21-1, slip op. at 7, 2022 WL 4073444, at *4 (Va. Ct. App. Sept. 6,
2022) (citing Lawlor’s “only issue” test and noting that Lawlor “declin[ed] to apply the four-
factor test outlined in Hoyt to determine this issue”).3
These rulings can be harmonized. Our jurisprudence reflects that when a court
determines whether the detention at issue is an intrinsic element of another crime, the Lawlor test
is mandatory and consideration of the Hoyt factors is permissive. Under Lawlor, we must
2
“Although not binding precedent, unpublished opinions can be cited and considered for
their persuasive value. Rule 5A:1(f).” Otey v. Commonwealth, 61 Va. App. 346, 350 n.3 (2012).
3
We have also paraphrased the four factors without mentioning their origin in Hoyt.
E.g., Lydon v. Commonwealth, No. 1436-18-4, slip op. at 4, 2020 WL 4110660, at *2
(Va. Ct. App. July 21, 2020) (paraphrasing the four factors stated in Wiggins v. Commonwealth,
47 Va. App. 173, 183 (2005), which simply quoted Hoyt, 44 Va. App. at 494).
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determine “whether any detention exceeded the minimum necessary to complete the required
elements of the other offense.” 285 Va. at 225. But because Lawlor did not overrule Hoyt, the
Hoyt factors may be considered when helpful.
Applying that analysis here, we reject Swezey’s claim that detaining his wife on the floor
while pointing a loaded gun to her head was intrinsic in the crimes of brandishing and assault.
Swezey’s counsel acknowledged at oral argument that Swezey’s detention of wife was separate
and apart from his earlier act of brandishing the pistol. After Swezey pulled out his gun and
pointed it at her, wife tried unsuccessfully to escape. Only afterward did she drop to the floor
where she was detained at gunpoint. We therefore need consider only whether Swezey’s
detention of wife was incidental to the crime of assaulting her.
Swezey’s argument that detaining his wife was inherent in the assault stumbles at the
outset on a discrepancy in the sentencing order that will require correction on remand. The
original charge below was for misdemeanor assault and battery of a family member under Code
§ 18.2-57.2. Without objection, the prosecutor amended that charge at trial to simple assault
under Code § 18.2-57. The jury was instructed on simple assault and found Swezey guilty of
that offense.4 The sentencing order, however, erroneously said that Swezey was found guilty of
assault on a family member under Code § 18.2-57.2. The Commonwealth agreed at oral
argument here that the sentencing order requires correction on remand. See Code § 8.01-428(B).
4
Common-law assault “occurs when an assailant engages in an overt act intended to
inflict bodily harm and has the present ability to inflict such harm or engages in an overt act
intended to place the victim in fear or apprehension of bodily harm and creates such reasonable
fear or apprehension in the victim.” Carter v. Commonwealth, 269 Va. 44, 47 (2005).
Consistent with that understanding, the jury here was instructed “that an assault is an overt act
intended to place a person in fear or apprehension of bodily harm that creates such a reasonable
fear or apprehension in that person.” Accord Model Jury Instrs.—Crim. No. 37-350.
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Yet Swezey briefed this assignment of error as if the conviction had been for assault and
battery on a family member, rather than simple assault. Since Swezey battered wife by holding
her down on the floor, he argued on brief, the battery was intrinsic to the abduction.
Refocusing instead on simple assault as the relevant offense, the evidence in this case
proved an assault that was “separate and apart” from the abduction. Lawlor, 285 Va. at 225-26.
A person commits an assault when “he ‘menacingly points at another with a gun, apparently
loaded,’” if “a well-founded apprehension was created.” Carter v. Commonwealth, 269 Va. 44,
47 (2005) (quoting Lynch v. Commonwealth, 131 Va. 769, 774 (1921)). That is what happened
here. Swezey pulled out his gun, pointed it at wife, and told her “yes” when she asked if he was
going to kill her. Wife was terrified and believed she was about to die. The assault was thereby
complete. It was only after that when, unable to escape through the door, wife dropped to the
floor and was detained there by Swezey. Swezey’s restraint of wife therefore “exceeded the
minimum necessary to complete the required elements of the other offense,” Lawlor, 285 Va. at
225—the assault—thus establishing the separate crime of abduction.5
Applying the Hoyt factors would lead to the same conclusion. The detention occurred
after the assault, not “during” it (factor two); the detention was not “inherent in” the earlier
assault (factor three); and the detention at gunpoint surely “created a significant danger to the
victim independent of that posed by” the earlier assault (factor four). Hoyt, 44 Va. App. at 494.
The remaining factor—the “duration of the detention” (factor one), id.—does not salvage
5
A person is guilty of abduction if he, “by force, intimidation or deception, and without
legal justification or excuse, seizes, takes, transports, detains or secretes another person with the
intent to deprive such other person of his personal liberty . . . .” Code § 18.2-47(A). Swezey
does not contest that he detained wife. Accord Walker v. Commonwealth, 74 Va. App. 475, 491-
92 (2022) (holding that evidence sufficed to establish abduction because the defendant’s actions
“caused [victim] to go to the ground and remain there for the duration of the bank robbery”),
aff’d on other grounds, ___ Va. ___ (June 1, 2023).
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Swezey’s argument. True, the detention was short. But it lasted long enough to keep terrorizing
wife and to coerce her into agreeing to speak with Swezey alone.
In sum, we find as a matter of law that Swezey’s assault on wife and his brandishing of
the pistol were separate and apart from—not incidental to—her later abduction.
B. Swezey failed to preserve his sentencing argument.
At sentencing, Swezey requested that the trial court “check the box” on the sentencing-
guidelines form to reduce the low end of the guidelines to credit him for expressing remorse.
The trial court declined to do so because Swezey had pleaded not guilty and sought a jury trial.
Swezey argues on appeal that the court denied him due process by allegedly penalizing him for
electing to be tried by a jury.
Because Swezey failed to raise that claim below, however, he has forfeited it here. “No
ruling of the trial court . . . will be considered as a basis for reversal unless an objection was
stated with reasonable certainty at the time of the ruling, except for good cause shown or to
enable this Court to attain the ends of justice.” Rule 5A:18. “Specificity and timeliness
undergird the contemporaneous-objection rule, animate its highly practical purpose, and allow
the rule to resonate with simplicity.” Bethea v. Commonwealth, 297 Va. 730, 743 (2019). “Not
just any objection will do. It must be both specific and timely—so that the trial judge would
know the particular point being made in time to do something about it.” Id. (quoting Dickerson
v. Commonwealth, 58 Va. App. 351, 356 (2011)). If a party fails to timely and specifically
object, he waives his argument on appeal. Arrington v. Commonwealth, 53 Va. App. 635, 641-
42 (2009); Crawford v. Commonwealth, 35 Va. App. 438, 439 (2001). Because Swezey did not
raise his due-process argument below, we do not consider it here.6
6
Swezey does not invoke the good-cause or ends-of-justice exceptions to Rule 5A:18,
and the Court will not apply those exceptions sua sponte. Edwards v. Commonwealth, 41
Va. App. 752, 761 (2003) (en banc).
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CONCLUSION
We find no error in the trial court’s refusal to strike the abduction charge or in its exercise
of sentencing judgment. We affirm the trial court’s rulings but remand this case for the trial
court to correct the clerical error in the sentencing order, changing the conviction for
misdemeanor assault on a family member under Code § 18.2-57.2 (CR21000201-03) to
misdemeanor assault under Code § 18.2-57.
Affirmed and remanded.
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