COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Frank and Clements
Argued at Alexandria, Virginia
BOBBY JOE LEONARD
OPINION BY
v. Record No. 2858-00-4 JUDGE JEAN HARRISON CLEMENTS
NOVEMBER 5, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Stanley P. Klein, Judge
James G. Connell, III (Devine & Connell,
P.L.C., on briefs), for appellant.
Stephen R. McCullough, Assistant Attorney
General (Randolph A. Beales, Attorney
General, on brief), for appellee.
Bobby Joe Leonard was indicted, tried, and convicted in a
jury trial of rape, in violation of Code § 18.2-61, abduction
with intent to defile, in violation of Code § 18.2-48, and
attempted murder, in violation of Code §§ 18.2-26 and 18.2-32.
On appeal, Leonard contends the trial court erred (1) in
refusing to dismiss his indictment for attempted murder because
the Commonwealth vindictively obtained that indictment after he
refused to accept a plea bargain and plead guilty to the rape
and abduction charges, 1 (2) in admitting evidence of his attempt
to escape from jail because he was not charged with attempted
1
The Honorable Henry E. Hudson presided over the
proceedings involving Leonard's motion to dismiss the indictment
for attempted murder.
murder at the time of the attempted escape and was being held on
two additional charges unrelated to the crimes for which he was
tried in this case, and (3) in permitting a sexual assault nurse
examiner to offer expert medical testimony regarding the
causation of the victim's sexual injuries. For the reasons that
follow, we affirm Leonard's convictions.
I. BACKGROUND
On August 17, 1999, Leonard was arrested and charged with
the rape and abduction with intent to defile of S.T. On
September 9, 1999, while incarcerated on those and two other
unrelated charges—unauthorized use of a vehicle and violation of
the terms of his parole—Leonard and another inmate attempted to
escape from jail.
Prior to the preliminary hearing in this case, Leonard and
the prosecutor engaged in plea negotiations, which failed when
Leonard rejected the Commonwealth's offer. On November 9, 1999,
after conducting a preliminary hearing, the general district
court certified the charges to the grand jury. On November 15,
1999, the grand jury indicted Leonard for rape and abduction
with intent to defile.
The case was set for trial on December 21, 1999, and
subsequently continued, on the Commonwealth's motion, to January
31, 2000. The Commonwealth indicated at the time that it
intended to amend the charges and seek the mandatory life
sentence for second-time violent sex offenders provided for in
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Code § 18.2-67.5:3. Leading up to the January 31, 2000
scheduled trial date, the Commonwealth and Leonard conducted
plea negotiations focusing on the possibility of an indictment
under Code § 18.2-67.5:3. However, because the facts regarding
Leonard's prior conviction revealed that Leonard did not qualify
for the enhanced penalty, the Commonwealth did not pursue such a
course of action.
On January 21, 2000, the Commonwealth and Leonard again
exchanged offers for a possible plea agreement, but those
negotiations also proved unsuccessful. On January 27, 2000,
Leonard obtained a continuance of the trial to March 1, 2000.
On February 16, 2000, the Commonwealth informed Leonard it
would return to the grand jury to seek an indictment for
attempted murder if a plea agreement could not be reached. 2
2
At the subsequent pretrial hearing on Leonard's motion to
dismiss the attempted murder indictment, the prosecutor
described this occurrence as follows:
During this time, counsel [for Leonard]
and I engaged in some plea negotiations,
which obviously did not bear fruit for
either side. During these times, I told her
I was intending to indict [Leonard] for
attempted murder if we were not going to be
able to come to some sort of agreement.
* * * * * * *
. . . Because our negotiations did not
bear fruit, I had indicated to counsel that
I was going to attempt or probably go
forward with the attempted murder
[indictment].
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Leonard chose not to plead guilty. Accordingly, on February 22,
2000, the Commonwealth obtained from the first available grand
jury an indictment charging Leonard with attempted murder.
Leonard does not dispute that the indictment for attempted
murder was fully justified by the evidence or that the
Commonwealth was in possession of such evidence at the time it
obtained the original rape and abduction indictments.
Similarly, the Commonwealth does not dispute that Leonard's
refusal to plead guilty to the original charges was the reason
it sought the indictment for attempted murder.
On February 25, 2000, the trial court, in scheduling the
trial on the attempted murder charge, granted Leonard's request
to have the trial on the rape and abduction charges continued so
that all three charges could be tried together. Trial on the
three charges was set for April 5, 2000.
On March 10, 2000, the trial court denied Leonard's motion
to dismiss the indictment for attempted murder on the ground of
prosecutorial vindictiveness. Finding the Commonwealth's
actions were "a free exercise of prosecutorial discretion," the
trial court concluded the circumstances of the case did not
"rise to the level of a due process violation."
On April 4, 2000, the day before trial was set to commence,
the Commonwealth learned that S.T., previously thought to be an
adult, was in fact a juvenile. In light of that information,
the parties agreed that the rape and abduction with intent to
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defile charges were improperly certified from the general
district court and that, as a result, the trial court lacked
jurisdiction over those charges. Accordingly, the Commonwealth,
by agreement of the parties, "nolle prossed" the original rape
and abduction with intent to defile charges and obtained new
indictments on those charges on April 17, 2000.
On April 28, 2000, the trial court conducted a hearing on
Leonard's pretrial motions in limine to exclude (1) evidence of
his attempt to escape from jail on September 9, 1999, and (2)
expert testimony by the sexual assault nurse examiner on the
causation of the victim's sexually related injuries. Denying
Leonard's motions, the trial court ruled that such evidence and
testimony were properly admissible at trial. Leonard renewed
these motions at trial, and, following argument and, in the case
of the nurse examiner's testimony, voir dire of the nurse
examiner, the trial court again denied the motions.
On July 19, 2000, the trial court granted the motion of
Leonard's appointed counsel to withdraw. Leonard, at his own
request, proceeded to trial pro se. The court appointed an
advisory counsel to assist him at trial, which commenced on July
24, 2000.
At trial, Diane Burkart, the sexual assault nurse examiner
who had examined S.T. at the hospital, qualified as an expert
witness in the field of "sexual assault nurse examination." She
testified that, to a reasonable degree of medical certainty, the
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bruises she observed around S.T.'s vaginal opening were caused
by "blunt trauma." She would not expect to see, she further
testified, the degree of injury she observed to S.T. "in an
[in]experienced consensual intercourse situation."
Testifying on his own behalf at trial, Leonard denied he
raped, abducted, or attempted to murder S.T. On
cross-examination, he testified, in response to questioning by
the prosecutor, that he did attempt to escape from jail while
being held on the rape and abduction charges, because jail "is a
horrible place to be" and he was "homesick."
At the close of the evidence at trial, the court instructed
the jury, inter alia, that
if a person leaves the place where a crime
was committed, or flees to avoid detection,
apprehension or arrest this creates no
presumption that the person is guilty of
having committed the crime. However, it is
a circumstance which you may consider along
with the other evidence.
Following argument and instruction by the court, the jury
found Leonard guilty of the three charged crimes. The jury
recommended a sentence of life in prison for the rape, twenty
years for the abduction with intent to defile, and ten years for
the attempted murder. By orders entered November 13, 2000, the
trial court imposed sentence in accord with the jury's
recommendations. This appeal followed.
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II. PROSECUTORIAL VINDICTIVENESS
Leonard contends the trial court erred in denying his
motion to dismiss the indictment for attempted murder because
that indictment was impermissibly obtained by the Commonwealth
in retaliation for his decision to go to trial rather than
accept the prosecutor's proposed plea bargain and plead guilty
to the rape and abduction charges. The Commonwealth's decision
to bring the additional charge, Leonard maintains, was motivated
by actual vindictiveness, as evidenced by the prosecutor's
threat to obtain the indictment for attempted murder if a plea
agreement could not be reached and the prosecutor's timing in
making that threat and obtaining the additional indictment.
Accordingly, Leonard concludes, the Commonwealth violated his
due process rights in obtaining the indictment for attempted
murder and the trial court erred in refusing to dismiss it. We
disagree.
"In our system [of justice], so long as the prosecutor has
probable cause to believe that the accused committed an offense
defined by statute, the decision whether or not to prosecute,
and what charge to file or bring before a grand jury, generally
rests entirely in his discretion." Bordenkircher v. Hayes, 434
U.S. 357, 364 (1978). Such discretion is not unlimited,
however. For example, a prosecutor may not punish a defendant
for doing "what the law plainly allows him to do" or retaliate
against him for relying on his legal rights. Id. at 363. Such
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punishment or retaliation constitutes "a due process violation
of the most basic sort." Id. "But in the 'give-and-take' of
plea bargaining, there is no such element of punishment or
retaliation so long as the accused is free to accept or reject
the prosecution's offer." Id.
In Bordenkircher, the prosecutor, acting on a threat he
made during plea negotiations, obtained an indictment for a
crime carrying a mandatory life sentence after the defendant
refused to accept the prosecutor's proposed plea bargain and
plead guilty to the original charge, which carried a maximum
sentence of ten years and was based on the same conduct as the
additional charge. Id. at 358-59. Although the prosecutor
admitted the purpose of his threat to reindict the defendant on
the new, more serious charge was to discourage the defendant
from exercising his right to a trial, the United States Supreme
Court concluded there was no prosecutorial vindictiveness and,
thus, no due process violation. Id. at 365.
In reaching that conclusion, the Supreme Court noted that,
"by tolerating and encouraging the negotiation of pleas, this
Court has necessarily accepted as constitutionally legitimate
the simple reality that the prosecutor's interest at the
bargaining table is to persuade the defendant to forgo his right
to plead not guilty." Id. at 364. The Supreme Court further
noted, in distinguishing the conduct of the prosecutor in the
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case before it from that conduct in other cases where
prosecutorial vindictiveness was found to have occurred, that
[w]hile the prosecutor did not actually
obtain the [additional] indictment until
after the plea conferences had ended, his
intention to do so was clearly expressed at
the outset of the plea negotiations. [The
defendant] was thus fully informed of the
true terms of the offer when he made his
decision to plead not guilty. This is not a
situation, therefore, where the prosecutor
without notice brought an additional and
more serious charge after plea negotiations
relating only to the original indictment had
ended with the defendant's insistence on
pleading not guilty.
Id. at 360.
Later, in explaining the decision it reached in
Bordenkircher, the United States Supreme Court stated as
follows:
The outcome in Bordenkircher was
mandated by this Court's acceptance of plea
negotiation as a legitimate process. In
declining to apply a presumption of
vindictiveness, the Court recognized that
"additional" charges obtained by a
prosecutor could not necessarily be
characterized as an impermissible "penalty."
Since charges brought in an original
indictment may be abandoned by the
prosecutor in the course of plea
negotiation—in often what is clearly a
"benefit" to the defendant—changes in the
charging decision that occur in the context
of plea negotiation are an inaccurate
measure of improper prosecutorial
"vindictiveness." An initial indictment—
from which the prosecutor embarks on a
course of plea negotiation—does not
necessarily define the extent of the
legitimate interest in prosecution. For
just as a prosecutor may forgo legitimate
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charges already brought in an effort to save
the time and expense of trial, a prosecutor
may file additional charges if an initial
expectation that a defendant would plead
guilty to lesser charges proves unfounded.
* * * * * * *
. . . A prosecutor should remain free
before trial to exercise the broad
discretion entrusted to him to determine the
extent of the societal interest in
prosecution. An initial decision should not
freeze future conduct. As we made clear in
Bordenkircher, the initial charges filed by
a prosecutor may not reflect the extent to
which an individual is legitimately subject
to prosecution.
United States v. Goodwin, 457 U.S. 368, 378-82 (1982) (footnotes
omitted).
Bordenkircher and Goodwin make clear, then, "that a
prosecutor, in the context of plea negotiations, [may] threaten
to bring a more severe indictment against a defendant to
pressure him into pleading guilty . . . ." United States v.
Williams, 47 F.3d 658, 662 (4th Cir. 1995). Accordingly, "[i]f
a prosecutor brings additional charges after a defendant refuses
to accept a plea bargain, a court [may not] presume that the
additional charges are an impermissible penalty for the
defendant's refusal." Id. at 661. The defendant "must show
that a prosecutor's decision was motivated by actual
vindictiveness." Id. at 662. "A prosecutor's threat to bring a
more severe indictment if the defendant refuses to cooperate
does not amount to vindictiveness as long as the defendant,
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should he refuse to cooperate, is not treated worse than he
would have been if no plea bargain had been offered." Id.
Here, Leonard made no showing that the Commonwealth's
decision to obtain the indictment for attempted murder was
motivated by actual vindictiveness. Indeed, the relevant
circumstances in this case are nearly identical to those in
Bordenkircher. After obtaining indictments against Leonard for
rape and abduction with intent to defile, the Commonwealth
informed Leonard, in the course of ongoing pretrial plea
negotiations, that it was going to seek an additional indictment
against him for attempted murder if a plea agreement could not
be reached. When Leonard refused to accept the Commonwealth's
proposed plea bargain and plead guilty to the charges of rape
and abduction with intent to defile, the Commonwealth obtained
an indictment for attempted murder prior to trial.
It is undisputed that Leonard was legitimately subject to
prosecution on the attempted murder charge. Thus, the
Commonwealth could have obtained an indictment on that charge
when it obtained the earlier indictments for rape and abduction
with intent to defile. Hence, in obtaining the attempted murder
indictment after its initial expectation that Leonard would
plead guilty to the rape and abduction charges proved unfounded,
the Commonwealth treated Leonard no worse than he would have
undoubtedly been treated had no plea bargain been offered.
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Furthermore, although, as Leonard points out, the
prosecution's intention to seek an additional indictment was not
announced at the start of the plea negotiations in this case, as
it had been in Bordenkircher, the Commonwealth did inform
Leonard in the course of ongoing pretrial plea negotiations on
the rape and abduction charges of its intention to do so. Thus,
as in Bordenkircher, this was not a situation "where the
prosecutor without notice brought an additional . . . charge
after plea negotiations relating only to the original indictment
had ended with the defendant's insistence on pleading not
guilty." Bordenkircher, 434 U.S. at 360. Leonard "was thus
fully informed of the true terms" of the Commonwealth's plea
offer and was free to accept or reject that offer "when he made
his decision to plead not guilty." Id.
Leonard further points to the fact the Commonwealth waited
until a week before the trial on the rape and abduction charges
was scheduled to start to obtain the attempted murder indictment
as evidence of the Commonwealth's actual vindictiveness. The
Commonwealth's timing, he argues, "forced" him to ask for a
continuance of that trial and thus extended his stay in jail
3
awaiting the resolution of the rape and abduction charges.
We agree with the trial court's determination that the
circumstances of this case "do not rise to the level of a due
3
The initial rape and abduction charges that are the
subject of this claim were, we note, later nolle prossed, by
agreement of the parties, because they had been improperly
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process violation." The record reveals the Commonwealth and
Leonard engaged in ongoing plea negotiations in this case over
the course of several months. Those negotiations commenced
prior to the preliminary hearing held on November 9, 1999.
Following Leonard's indictment on November 15, 1999, for rape
and abduction with intent to defile, the trial court set a trial
date of December 21, 1999. Prior to that trial date, the
Commonwealth sought and obtained a continuance of the trial to
January 31, 2000. The Commonwealth indicated at the time that
it intended to seek an additional indictment against Leonard as
a second-time violent sexual offender under Code § 18.2-67.5:3,
which carries a mandatory life sentence. Plea negotiations over
the next several weeks focused on that possible course of
action. Upon subsequently learning, however, that Leonard's
prior convictions did not warrant the enhanced penalty provided
for in Code § 18.2-67.5:3, the Commonwealth indicated it would
not pursue such an indictment.
Following further unsuccessful negotiation, Leonard
obtained a continuance of the trial to March 1, 2000. On
February 16, 2000, the Commonwealth informed Leonard of its
intention to seek an indictment against him for attempted murder
if the parties could not reach a plea agreement. When Leonard
informed the Commonwealth he would not plead guilty, the
Commonwealth proceeded to obtain an attempted murder indictment
certified to the grand jury by the general district court.
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from the first available grand jury on February 22, 2000. On
February 25, 2000, Leonard sought and obtained a continuance of
the trial on the rape and abduction charges so that all three
charges could be tried together.
We observe nothing in these circumstances, reflecting as
they do the unexceptional ebbs and flows of a continuing plea
negotiation, that warrants the conclusion that the
Commonwealth's timing in obtaining the indictment for attempted
murder a week before the trial on the rape and abduction charges
was set to commence constituted actual vindictiveness. Not only
did the Commonwealth inform Leonard well before the trial on the
rape and abduction charges was scheduled to start of its
intention to obtain the indictment for attempted murder if plea
negotiations failed, it obtained that indictment a week before
the trial's scheduled start from the first available grand jury
following the failure of the parties' final plea negotiations.
Furthermore, the trial court was clearly prepared to set the
attempted murder charge for a separate trial and thus allow the
trial on the rape and abduction charges to go forward as
scheduled, had that been Leonard's preference. Instead,
preferring to have all three charges tried together, Leonard
requested the trial on the rape and abduction charges be
continued, thus resulting in his continued incarceration on those
charges. Accordingly, the trial court properly rejected
Leonard's claim on such grounds. See Manns v. Commonwealth, 13
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Va. App. 677, 680, 414 S.E.2d 613, 615 (1992) (holding that a
party may not take advantage of a situation he invited).
We conclude, therefore, that the Commonwealth's conduct in
this case, which, like the prosecution's conduct in
Bordenkircher, "no more than openly presented the defendant with
the unpleasant alternatives of forgoing trial or facing [an
additional] charge[] on which he was plainly subject to
prosecution," did not constitute actual prosecutorial
vindictiveness. Bordenkircher, 434 U.S. at 365. Thus, we hold
the trial court did not err in refusing to dismiss the
indictment for attempted murder.
III. EVIDENCE OF ATTEMPTED ESCAPE
Leonard next contends the trial court erred in allowing the
Commonwealth to cross-examine him about his attempt to escape
from jail. Because he was being held at the time of the escape
attempt on multiple charges, some of which were unrelated to
this case, and was not charged with attempted murder, it could
not be shown, he argues, that he attempted to escape to avoid
prosecution on the rape, abduction with intent to defile, and
attempted murder charges. Thus, he concludes, the evidence of
his escape attempt was not relevant to show his consciousness of
guilt as to those charges and was therefore inadmissible. We
disagree.
"The admissibility of evidence is within the broad
discretion of the trial court, and a ruling will not be
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disturbed on appeal in the absence of an abuse of discretion."
Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842
(1998). "[A] trial court 'by definition abuses its discretion
when it makes an error of law.'" Shooltz v. Shooltz, 27
Va. App. 264, 271, 498 S.E.2d 437, 441 (1998) (quoting Koon v.
United States, 518 U.S. 81, 100 (1996)). In determining whether
the trial court made an error of law, "we review the trial
court's . . . legal conclusions de novo." Timbers v.
Commonwealth, 28 Va. App. 187, 193, 503 S.E.2d 233, 236 (1998).
"As a general rule, only under limited circumstances may
evidence of other offenses by an accused be admitted to prove
the offense at bar." Langhorne v. Commonwealth, 13 Va. App. 97,
101, 409 S.E.2d 476, 479 (1991). However, "[a]lthough flight to
avoid prosecution is evidence of another crime, it is
nevertheless admissible to show a consciousness of guilt." Id.
at 102, 409 S.E.2d at 479. Indeed, "'it is today universally
conceded that the fact of an accused's flight, escape from
custody, resistance to arrest, concealment, assumption of a
false name, and related conduct, are admissible as evidence of
consciousness of guilt, and thus of guilt itself.'" Id. at 102,
409 S.E.2d at 480 (quoting United States v. Ballard, 423 F.2d
127, 133 (5th Cir. 1970)).
Moreover, evidence of an accused's attempt to escape from
jail before trial is relevant to prove flight to avoid
prosecution on the charge for which the accused was
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incarcerated, and is thus admissible to show a consciousness of
guilt. See Anderson v. Commonwealth, 100 Va. 860, 862-63, 42
S.E. 865, 865 (1902) (holding that the trial court did not err
"in permitting the introduction of evidence showing that
[defendant], six weeks after the homicide with which he [was]
charged, and twelve days before the term of the court at which
he was tried began, attempted to break jail and escape"),
overruled on other grounds by Kelley v. Commonwealth, 140 Va. 522,
125 S.E. 437 (1924). As the Supreme Court of Virginia explained
in Anderson:
When a suspected person attempts to escape
or evade a threatened prosecution, it may be
argued that he does so from consciousness of
guilt; and though the inference is by no
means strong enough by itself to warrant a
conviction, yet it may become one of a
series of circumstances from which guilt may
be inferred. An attempt to escape or evade
prosecution is not to be regarded as a part
of the res gestae, but only as a
circumstance to be considered by the jury
along with the other facts and circumstances
tending to establish the guilt of the
accused. The nearer, however, to the
commission of the crime committed, the more
cogent would the circumstance that the
suspected person attempted to escape, or to
evade prosecution, but it should be
cautiously considered, because it may be
attributable to a number of other reasons,
than consciousness of guilt.
Id. at 863, 42 S.E. at 865.
In Anderson, the defendant was being held in jail at the
time of the escape attempt on a single charge of murder and was
subsequently prosecuted at trial on that charge alone. Id. at
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862-63, 42 S.E. at 865. Thus, the inferential connection
between the defendant's escape attempt and his consciousness of
guilt as to the murder charge was readily apparent.
Here, however, the connection between Leonard's escape
attempt and the charges on which he was tried is not quite as
obvious. At the time of the attempted escape, Leonard was being
held on the instant rape and abduction with intent to defile
charges, as well as on charges of unauthorized use of a vehicle
and violation of the terms of his parole. Leonard was not on
trial in this case on the latter two charges. In addition,
Leonard had not yet been charged with attempted murder when he
attempted to escape.
Leonard argues that, in light of these circumstances, it is
impossible to reasonably infer that his attempted escape was
necessarily related to the rape, abduction, and attempted murder
charges. It cannot be concluded, he asserts, that, in
attempting to escape from jail, he sought to avoid prosecution
on the rape and abduction charges, rather than on the
unauthorized use of a vehicle and parole violation charges.
Furthermore, he continues, it cannot be concluded that he
attempted to escape to avoid prosecution on the attempted murder
charge because he had not yet even been charged with that crime
when he made the attempt.
"'A court will generally scrutinize the facts of each case
to determine whether the jury should be given the opportunity to
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draw [an] inference of guilt from the defendant's flight.'"
Langhorne, 13 Va. App. at 102-03, 409 S.E.2d at 480 (quoting
United States v. Martinez, 681 F.2d 1248, 1257 (10th Cir.
1982)).
In Langhorne, the defendant objected to the admission of
evidence showing that he attempted to flee when the police
stopped the car in which he was riding. Id. at 100, 409 S.E.2d
at 478. The defendant argued that such evidence was
inadmissible to show his consciousness of guilt because it was
not necessarily related to the distributing heroin and
conspiring to distribute heroin charges for which he was on
trial. Id. Given that he had multiple charges pending against
him and was on "Richmond's top ten most wanted list" when he
fled, the jury could not reasonably infer, he argued, that he
fled to avoid arrest on the heroin and conspiracy charges,
rather than the other pending charges. Id. Finding the
evidence of the defendant's flight was properly admitted, we
observed the defendant could not "avoid the inferences which the
fact finder may draw from his actions because other charges were
pending against him and he may have also been evading those
charges." Id. at 103, 409 S.E.2d at 480.
Scrutinizing the facts of the present case, we cannot say
the trial court abused its discretion in allowing the jury to
consider the evidence of Leonard's attempt to escape from jail
as evidence of his consciousness of guilt as to the rape and
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abduction with intent to defile charges, even though he was also
incarcerated at the time of the attempted escape on two other
charges. The offenses of rape and abduction with intent to
defile both carry a maximum sentence of life imprisonment. See
Code § 18.2-61; Code § 18.2-48 and Code § 18.2-10. Thus, in
light of the seriousness of those charges, it defies logic to
suggest, as Leonard does, that the jury could not reasonably
infer he attempted to escape from jail to avoid prosecution on
those charges simply because he was also charged with two lesser
offenses at the time.
Likewise, we cannot say the trial court abused its
discretion in allowing the jury to consider the evidence of
Leonard's attempted escape as evidence of his consciousness of
guilt as to the attempted murder charge. Attempted murder
carries a maximum sentence of ten years. See Code §§ 18.2-32,
18.2-26, and 18.2-10. Although he was not yet charged with that
offense when he attempted to escape from jail, Leonard clearly
was aware, at the time, that the police had information
connecting him to that crime and that he would likely be
prosecuted for it. 4
4
Indeed, not only was the attempted murder charge based on
the same factual predicate as the rape and abduction charges,
the evidence shows that Leonard discovered he had not actually
killed S.T. only in talking to the police following his arrest
for the rape and abduction of S.T. Having agreed to speak with
the police, Leonard, upon being shown a letter written by the
victim describing what Leonard had done to her, told the
interviewing officer, "[T]here's no way that the victim could
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We hold, therefore, that the trial court did not err in
admitting evidence of Leonard's attempt to escape from jail to
prove flight to avoid prosecution and thus show his
consciousness of guilt concerning the offenses of which he was
subsequently convicted in this case.
IV. OPINION OF NURSE EXAMINER ON CAUSATION OF SEXUAL INJURIES
Finally, Leonard contends the trial court erred in
permitting a sexual assault nurse examiner to express an expert
medical opinion on the causation of S.T.'s sexual injuries.
Only a medical doctor, Leonard argues, may testify as an expert
regarding the cause of a victim's injury.
During the pendency of this appeal, the Supreme Court of
Virginia issued its decision in Velazquez v. Commonwealth, 263
Va. 95, 557 S.E.2d 213 (2002), which controls the disposition of
this issue. The Court held in Velazquez that
a [sexual assault nurse examiner] need not
be licensed to practice medicine to express
an opinion on the causation of injuries in
the context of an alleged sexual assault,
nor does the expression of such an opinion
by a [sexual assault nurse examiner] in a
trial constitute the unlawful practice of
medicine.
Id. at 104, 557 S.E.2d at 218.
have written that letter because she was dead." Leonard
demanded proof that S.T. was not dead. When the officer showed
Leonard a photograph of the injured victim, Leonard responded,
"I cannot talk to you. I'm dead in the water."
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Because, in the present case, the sexual assault nurse
examiner expressed an opinion on the causation of S.T.'s
injuries in the context of an alleged sexual assault, we find no
error in the judgment of the trial court on this issue.
Accordingly, we affirm Leonard's convictions.
Affirmed.
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