Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and
Goodwyn, JJ., and Russell, S.J.
JAVIER AMILCAR VELASQUEZ OPINION BY
SENIOR JUSTICE CHARLES S. RUSSELL
v. Record No. 071787 June 6, 2008
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
This appeal presents the question whether the Court of
Appeals erred in affirming the circuit court's ruling in
granting an instruction telling the jury that an intent to
rape could be inferred from the defendant's unauthorized
presence in the complainant's home. 1
Javier Amilcar Velasquez was tried by a jury in the
Circuit Court of Fairfax County on a two-count indictment
charging (1) rape and (2) breaking and entering a dwelling
house with the intent to commit rape. He was convicted of
rape but found not guilty of the statutory burglary charge.
The court imposed a sentence of confinement for 20 years on
the rape conviction and the Court of Appeals affirmed the
conviction by an unpublished opinion. Velasquez v.
Commonwealth, Record No. 1648-06-4 (Aug. 21, 2007). We
awarded Velasquez an appeal.
1
Instruction 13, given by the court, reads: "In the
absence of evidence showing a contrary intent, you may infer
that a defendant's unauthorized presence in a building of
another was with the intent to commit rape."
The Court of Appeals, in affirming the rape conviction,
relied on our decision in Tompkins v. Commonwealth, 212 Va.
460, 184 S.E.2d 767 (1971). Tompkins was convicted of
breaking and entering a dwelling house in the nighttime with
intent to commit murder. In that case, the complainant
testified that the defendant, who knew her, had opened a
window, entered her home, gone to the bedroom in which she was
sleeping, choked her, and said "I am going to kill you." The
defendant admitted entering the home but insisted that his
only purpose was to "try to talk her into getting in the bed."
Id. at 460-61, 184 S.E.2d at 767-68. The issue before the
jury was whether the defendant had the requisite specific
intent to support a conviction of the charged burglary. We
approved an instruction given by the trial court that told the
Tompkins jury: "[W]hen the Commonwealth has proven beyond a
reasonable doubt that the defendant made an unlawful entry
into a dwelling house in the night time, the presumption is
that the entry was made for an unlawful purpose and the
purpose may be inferred from the surrounding facts and
circumstances." Id. at 461, 184 S.E.2d at 768. 2
2
The circuit court, in approving Instruction 13 in the
present case, relied on Virginia Model Jury Instruction
12.510. As the Court of Appeals noted in its opinion,
however, that instruction tells a jury that it "may infer that
a defendant's unauthorized presence in a building of another
2
In affirming the judgment in the present case, the Court
of Appeals quoted our statement in Tompkins:
We think it [is] a proper principle of law that when
an unlawful entry is made into a dwelling, the
presumption is that the entry was made for an
unlawful purpose. And we think it likewise correct
that the specific purpose, meaning specific intent,
with which such an entry is made may be inferred
from the surrounding facts and circumstances.
Id. The Court of Appeals cited three subsequent decisions of
this Court and three of its own decisions adopting the above-
quoted "proper principle of law" from Tompkins. 3 Velasquez,
Record No. 1648-06-4, slip op. at 5.
Tompkins, however, was a burglary case, as was each of
the subsequent cases on which the Court of Appeals relied.
Both statutory burglary and common-law burglary are specific-
intent crimes in which the Commonwealth has the burden of
proving, as an essential element of the crime, that the
defendant committed an unlawful entry with the requisite
intent. Taylor v. Commonwealth, 207 Va. 326, 333-34, 150
S.E.2d 135, 141 (1966); Clarke v. Commonwealth, 66 Va. (25
Gratt.) 908, 911 (1874). In such cases, it is appropriate to
was with the intent to commit larceny." (Emphasis in
original.) Velasquez, Record No. 1648-06-4, slip op. at 4.
3
One of the cited cases, Hucks v. Commonwealth, 33 Va.
App. 168, 531 S.E.2d 658 (2000), is given as the authority for
Virginia Model Jury Instruction 12.510, on which the circuit
court relied. 1 Virginia Model Jury Instructions - Criminal,
No. 12-510, at 12-48 (repl. ed. 2006).
3
instruct the jury as to the Commonwealth's burden to prove
intent as well as the ways in which intent may be established
by the evidence. We therefore continue to adhere to the
principle announced in Tompkins as it applies to prosecutions
for burglary.
Rape, however, is a general-intent crime in which the
Commonwealth has no burden of proving the defendant's specific
intent. The required general intent is established upon proof
that the accused knowingly and intentionally committed the
acts constituting the elements of rape. Commonwealth v.
Minor, 267 Va. 166, 173, 591 S.E.2d 61, 66 (2004). If the
evidence in such a case creates an issue whether the defendant
harbored any criminal intent whatsoever, the Commonwealth may
request an instruction that it is permissible to infer that
every person intends the natural and probable consequences of
his or her acts. See Schmitt v. Commonwealth, 262 Va. 127,
145, 547 S.E.2d 186, 198-99 (2001). Therefore, Instruction 13
was unnecessary and inapposite in Velasquez' trial on the rape
charge.
Because the rape and burglary counts were tried together,
Instruction 13, although undoubtedly given for the purpose of
explaining how an essential element of the burglary case might
be inferred from the evidence, necessarily had a collateral
4
effect on the rape case and in that connection amounted to an
improper comment on the evidence.
Further, we consider the instruction to embody an
incorrect statement of the law generally. As we said in
Tompkins, in a burglary case there is a presumption from an
unlawful entry that the entry was made for an unlawful
purpose, and the specific intent with which it was done may be
inferred from the surrounding facts and circumstances. 212
Va. at 461, 184 S.E.2d at 768. The nature of that specific
intent, however, is a matter for determination by the fact-
finder alone, based upon the evidence. It is not the function
of the court to suggest to the jury what conclusion it should
draw from the facts in evidence. See Tyler v. C&O R.R. Co.,
88 Va. 389, 394-95, 13 S.E. 975, 976-77 (1891) (error to grant
instruction that invades province of jury). Instructions
based on the above-quoted principles expressed in Tompkins,
leaving to the jury the determination of the nature of the
defendant's specific intent, are sufficient. For these
reasons, the circuit court erred in granting Instruction 13
over the defendant's objection. To the extent the decision of
the Court of Appeals in Hucks v. Commonwealth, 33 Va. App.
5
168, 531 S.E.2d 658 (2000), is in conflict with views we
express here, we expressly overrule that decision. 4
Although we do not agree with the Court of Appeals'
analysis, we nevertheless conclude that the error of granting
the instruction was harmless because of the overwhelming
evidence of the defendant's guilt. The victim testified that
a Hispanic man entered her apartment through a sliding glass
door at night, raped her, and left immediately afterward. The
perpetrator had been wearing gloves of a distinctive
appearance, one of which remained at the scene and was
recovered by the police. The victim later identified
Velasquez as her assailant. DNA testing of evidence recovered
from the victim and the defendant effectively eliminated the
possibility that any other person in the world's population
was the perpetrator. When shown the glove recovered by the
police, the defendant gave a lengthy confession of all
elements of the crime, expressing remorse and explaining that
he had been drinking and using drugs. He later wrote a letter
of apology in Spanish to the victim, asking her forgiveness
for what he had done. A translation of the letter was
admitted in evidence.
4
It follows that the language from Virginia Model Jury
Instruction 12.510 utilized by the trial judge, which was
framed in reliance upon the decision in Hucks, was an
incorrect statement of the law.
6
In light of the evidence heard by the jury, we are of
opinion that the circuit court's error in granting Instruction
13 was harmless and that the result would not be different if
the instruction had been refused. 5 Accordingly, the judgment
of the Court of Appeals will be
Affirmed.
5
We apply the standard of Kotteakos v. United States, 328
U.S. 750 (1946), and Code § 8.01-678 as the test for non-
constitutional harmless error. Clay v. Commonwealth, 262 Va.
253, 259-61, 546 S.E.2d 728, 731-32 (2001).
7