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Abduction in Virginia

Anyone who has practiced criminal law in Virginia knows about charge stacking There are two types: "same charge stacking" and "interlocking charge stacking".

To go forward from this point let's assume a robbery of a grocery store. The masked, pistol carrying robber orders the three cashiers to go to their cash registers and give him the money. Then he leaves; all of it takes less than five minutes.

Same Charge Stacking: This is when the same charge is charged multiple times. An example of this in the scenario above would be three robbery charges, one for each cashier. The only limit to this seems to be the "single larceny doctrine" which keeps the prosecution from charging a larceny for every key on a stolen key chain or every item in a snatched purse. The appellate courts of Virginia have zealously guarded against even the tiniest further infringement upon the prosecutors' ability to do same charge stacking.

Interlocking Charge Stacking: This is when multiple violations are charged for a set of interlaced actions. An example of this in the scenario above would be charges of wearing a mask, abduction, robbery and use a firearm in a felony.1

As far as stacking goes interlocking stacked charges tend to bother me a lot less than same charge stacking. However, there is one glaring problem that is seen over and over in interlocking charges: the redundant charging of abduction.

Abduction is either asportation or detention by force, threat or deception; by statute it includes all that was under common law kidnapping and abduction. If you think about it a little bit many, if not all, of the truly serious felonies include one of those two activities. Therefore, it is a charge stacked in with a lot of serious felonies.

The Virginia Supreme Court has clearly stated that this is not viable. See Johnson v. Commonwealth, 221 Va. 872 (1981) and Brown v. Commonwealth, 230 Va. 310 (1986). However, in practice these rulings are given a very, very narrow interpretation. The problem is that in affirming abduction conviction after abduction conviction the appellate courts have never actually laid out what the standard is in this area.

Comes now the Virginia Court of Appeals and makes a valiant effort to set out a test in Hoyt v. Commonwealth, Record No: 3042-03-1 (07 Dec 04). Actually, the Court reviews a few of the more prominent cases in this area and then seems to adopt a test from the 3d Federal Circuit.

The factors to consider 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.

The Court then goes through a series of Virginia appellate cases which it claims support its adoption of this test. The first few fit well but as the list gets toward the end they start to get pretty iffy. The last just doesn't work: Coram v. Commonwealth, 3 Va. App. 623 (1987)(moving someone 20 feet to seclusion as part of a rape). However, the Court salvages the opinion by listing one final test not from the 3d Federal Circuit:

{5} Does the evidence support an inference that the detention or asportation occurred in order to avoid detection of the crime?

[comment] When I first glanced over this I was really impressed. I thought the Court of Appeals had put an end to charging abduction for things such as ordering parties to go into a different room. It hasn't. This is inferred, though not actually stated, toward the end of the opinion when the court rejects the government's attempt to make the charge cover a second person who was made to lay down on the floor. It does so not on the grounds that it was not an abduction but that it was not in the indictment charged.

Therefore, this decision applies to only a very limited class of cases - those in which there is absolutely no movement (or restraint) more than the bare minimum necessary to carry out a crime. Basically, this decision only applies to a very short walk to the cash register or a similar exceedingly minor exercise of control.

Rules (3) and {5} are the exceptions which swallow the rule. The vast majority of the stacked abduction charges can be "squeezed" into these massive exceptions. For instance a charge can be pressed for every single person in the store when they are ordered to lie on the ground or freeze in place (not an absolute necessity in a robbery). It can also be charged when people are told to turn around, or stay here, or go into that room so that the robber can run away (done in order to avoid detection for some period of time).

I’m not very impressed by this part of the law. What it basically does is allow the prosecutor at least one charge for every person in the building (customers, stockboys, janitors, &cetera) other than the cashier and probably the cashier as well when she is told to lay on the floor or turn around after the robbery. The threat recognized in this decision and others it cites that "abduction statutes would overrun other crimes, such as robbery, rape, and assault" is not alleviated in any major way by this decision.

Announcing a good technical rule but allowing broad exceptions which come close to invalidating it is not atypical in criminal law. However, the allowing of abduction charges to stand for very minor asportations or detentions combined with the minimalist application of this rule is disturbing. Whether there should be greater punishment based upon the number of people present during a robbery is a decision for the Legislature, not the courts or the executive. By interpreting the law as it has the Court allows the prosecutor to punish in accord with the number of people present; it unbalances the system by placing a mighty power in the hands of the prosecutor without the Legislature’s approval.

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1In reality most of the time the two types are mixed. The scenario given might lead to 3 X wearing a mask in a felony, 3 X abductions, 3 X robberies, and 6 X use of a firearm while committing a felony (9 if you can make a case for charging it with the mask charges). Prosecutors love the firearm charges because the first carries a 3 year mandatory sentence, every subsequent conviction carries a mandatory 5 year sentence, and the Virginia appellate courts have ruled that even if they are closely temporally tied and tried at the same time the second firearm count is a subsequent conviction when it is announced ten seconds after the first.