Wiggins v. Commonwealth

I find no fault with the majority’s application of Hoyt v. Commonwealth, 44 Va.App. 489, 605 S.E.2d 755 (2004). My disagreement is rather with Hoyt itself.

Virginia has historically treated the incidental detention issue as one of fact for the jury, subject to the deferential review of Code § 8.01-680. Analyzing the issue under the heading “Sufficiency of the Evidence,” the Virginia Supreme Court in Powell v. Commonwealth, 261 Va. 512, 540-41, 552 S.E.2d 344, 360 (2001), found “sufficient evidence to support the finding of the jury that Powell used greater restraint than was necessary to…