COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Humphreys
Argued at Richmond, Virginia
RICHARD LEE RAGSDALE
OPINION BY
v. Record No. 0340-01-2 JUDGE ROBERT J. HUMPHREYS
JULY 2, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF NOTTOWAY COUNTY
Thomas V. Warren, Judge
(William R. Blandford, Jr.; Blandford,
Carrico & Newlon, P.C., on brief), for
appellant. Appellant submitting on brief.
H. Elizabeth Shaffer, Assistant Attorney
General (Randolph A. Beales, Attorney
General, on brief), for appellee.
Richard Lee Ragsdale appeals his conviction, after a bench
trial, for carnal knowledge of a minor, in violation of Code
§ 18.2-63. Ragsdale contends the trial court erred in refusing
to grant his motion to dismiss on the grounds the charge
violated his right against double jeopardy as secured by the
Fifth Amendment to the United States Constitution and by
Article I, Section 8 of the Virginia Constitution. Ragsdale
further contends the trial court erred in finding that carnal
knowledge of a child, pursuant to Code § 18.2-63, is not a
lesser-included offense of rape, under Code § 18.2-61. In the
alternative, Ragsdale argues the trial court erred in finding
the evidence sufficient as a matter of law to support the
conviction.
I. BACKGROUND
On September 7, 1999, a Nottoway County grand jury indicted
Ragsdale for the rape of C.W., on April 26, 1999, in violation
of Code § 18.2-61. 1 Prior to Ragsdale's trial, he filed a motion
to dismiss the charges against him, alleging that, pursuant to
Code § 19.2-243, more than five months had passed since the
determination of probable cause. 2 At his trial on December 13,
1999, the Commonwealth consented to the motion to dismiss and
1
Code § 18.2-61(A) states:
If any person has sexual intercourse with a
complaining witness who is not his or her
spouse or causes a complaining witness,
whether or not his or her spouse, to engage
in sexual intercourse with any other person
and such act is accomplished (i) against the
complaining witness's will, by force, threat
or intimidation of or against the
complaining witness or another person, or
(ii) through the use of the complaining
witness's mental incapacity or physical
helplessness, or (iii) with a child under
age thirteen as the victim, he or she shall
be guilty of rape.
2
Code § 19.2-243 provides, in pertinent part:
Where a general district court has found
that there is probable cause to believe that
the accused has committed a felony, the
accused, if he is held continuously in
custody thereafter, shall be forever
discharged from prosecution for such offense
if no trial is commenced in the circuit
court within five months from the date such
probable cause was found by the district
court.
- 2 -
the court dismissed the charge against Ragsdale, with prejudice,
on the basis of the Commonwealth's failure to comply with the
statutory speedy trial requirements of Code § 19.2-243.
On January 4, 2000, Ragsdale was indicted in the Circuit
Court of Nottoway County for the felony offense of carnally
knowing, without the use of force, C.W., a child fourteen years
of age, in violation of Code § 18.2-63. 3 The date of offense was
the same date listed for the rape charge.
On May 30, 2000, prior to his trial on the new indictment,
Ragsdale filed a plea of double jeopardy, requesting that the
3
Code § 18.2-63 provides:
If any person carnally knows, without the
use of force, a child thirteen years of age
or older but under fifteen years of age,
such person shall be guilty of a Class 4
felony. However, if such child is thirteen
years of age or older but under fifteen
years of age and consents to sexual
intercourse and the accused is a minor and
such consenting child is three years or more
the accused's junior, the accused shall be
guilty of a Class 6 felony. If such
consenting child is less than three years
the accused's junior, the accused shall be
guilty of a Class 4 misdemeanor.
In calculating whether such child is three
years or more a junior of the accused minor,
the actual dates of birth of the child and
the accused, respectively, shall be used.
For the purposes of this section, (i) a
child under the age of thirteen years shall
not be considered a consenting child and
(ii) "carnal knowledge" includes the acts of
sexual intercourse, cunnilingus, fellatio,
anallingus, anal intercourse, and animate
and inanimate object sexual penetration.
(Emphasis added.)
- 3 -
trial court dismiss the charge against him. Ragsdale contended
the offense for which he was indicted was either the same or a
lesser-included offense of the offense dismissed by the Circuit
Court of Nottoway County on December 13, 1999, and, as such, his
retrial was prohibited pursuant to Code § 19.2-243. Ragsdale
further argued that to try him on the subsequent indictment
would constitute double jeopardy and a denial of his rights
under the United States Constitution and the Virginia
Constitution.
At his trial on the second indictment on June 8, 2000,
Ragsdale entered a plea of not guilty. The trial court then
heard argument on Ragsdale's plea of double jeopardy. The court
held, "I think it's pretty book [sic] law that jeopardy never
attached, because he was never tried, there was [sic] no
witnesses sworn and the jury was not sworn. Therefore, jeopardy
did not attach." The court did not rule on Ragsdale's argument
that carnal knowledge is a lesser-included offense of rape.
However, the court took Ragsdale's plea and attendant motion to
dismiss under advisement and proceeded with the trial.
Upon completion of the presentation of the Commonwealth's
case-in-chief, Ragsdale raised a motion to strike the evidence,
arguing that "the overall testimony of the complaining witness
should not be given great weight." Ragsdale then argued that
the Commonwealth did not prove its prima facie case. The court
denied the motion, and ultimately found Ragsdale guilty of the
- 4 -
charge, but delayed a final decision pending consideration of
Ragsdale's plea of double jeopardy and motion to dismiss.
By letter opinion dated August 11, 2000, the trial court
ruled that carnal knowledge of a child, as set forth in Code
§ 18.2-63, is not a lesser-included offense of rape, as set
forth in Code § 18.2-61. The trial court stated:
It is my view that the elements of rape,
requiring penis/vagina penetration are
different than those of section 18.2-63
which in addition to intercourse includes
other acts set out in the last paragraph.
If one rapes a fourteen year old girl and
also commits other acts set forth in 18.2-63
he has in my opinion committed two separate
and different crimes. The present
indictment for carnal knowledge is not a
lesser includable offense within 18.2-61.
The trial court, therefore, rejected Ragsdale's plea of double
jeopardy and denied his motion to dismiss.
II. ANALYSIS
The Fifth Amendment of the United States Constitution
declares that no person shall "be subject for the same offense to
be twice put in jeopardy of life or limb." The Virginia
Constitution likewise protects an individual from being "put twice
in jeopardy for the same offense." 4 As we noted in Dalo v.
Commonwealth, "[t]he Fifth Amendment protection against double
jeopardy includes 'three separate guarantees: (1) "It protects
against a second prosecution for the same offense after acquittal.
4
Va. Const. art. I, § 8.
- 5 -
[(2) I]t protects against a second prosecution for the same
offense after conviction. [(3)] And it protects against multiple
punishments for the same offense."'" 5 However, jeopardy must
first attach before a claim of double jeopardy can succeed.
In the case at bar, we hold that the trial court properly
determined jeopardy did not attach in the first proceeding.
Indeed, in a bench trial, jeopardy does not attach until the
first witness has been sworn. 6 On this record, there is no
evidence that a witness had been sworn at the proceeding on
December 13, 1999. Therefore, the trial court did not err in
denying Ragsdale's plea of double jeopardy as jeopardy never
attached in the first proceeding.
Nevertheless, according to Code § 19.2-243, Ragsdale must
be "forever discharged from prosecution for [that charge]," due
to the Commonwealth's violation of the speedy trial statute.
Specifically, the offense from which Ragsdale is discharged is
the April 26, 1999 rape of C.W. 7 Ragsdale argues that carnal
knowledge is a lesser-included offense of rape. Thus, he
contends he must also be discharged from prosecution for this
5
37 Va. App. 156, 162, 554 S.E.2d 705, 708 (2001) (quoting
Illinois v. Vitale, 447 U.S. 410, 415 (1980) (quoting North
Carolina v. Pearce, 395 U.S. 711, 717 (1969), overruled on other
grounds by Alabama v. Smith, 490 U.S. 794 (1989))).
6
Peterson v. Commonwealth, 5 Va. App. 389, 395, 363 S.E.2d
440, 444 (1987) (citing Serfass v. United States, 420 U.S. 377,
388 (1975)).
7
See id.
- 6 -
offense. Assuming, without deciding, that under this rule
Ragsdale would also be discharged from prosecution for a
lesser-included offense, we do not agree with Ragsdale's
contention that carnal knowledge is a lesser-included offense of
rape.
"Generally, to determine whether charges are for the 'same
offense,' courts turn to the test established in Blockburger. 8
. . . 'the applicable rule is that where the same act or
transaction constitutes a violation of two distinct statutory
provisions, the test to be applied to determine whether there
are two offenses or only one, is whether each provision requires
proof of a fact which the other does not.'" 9 In applying the
Blockburger test, the two offenses "are to be examined in the
abstract, rather than with reference to the facts of the
particular case under review." 10
Code § 18.2-61 states, "If any person has sexual
intercourse with a complaining witness who is not his or her
spouse . . . and such act is accomplished . . . against the
complaining witness's will, by force, threat or intimidation of
or against the complaining witness . . . he or she shall be
8
Blockburger v. United States, 284 U.S. 299 (1932).
9
Dalo, 37 Va. App. at 162, 554 S.E.2d at 708 (quoting Brown
v. Ohio, 432 U.S. 161, 166 (1977)).
10
Blythe v. Commonwealth, 222 Va. 722, 726, 284 S.E.2d 796,
798 (1981) (citing Whalen v. United States, 445 U.S. 684, 694
n.8 (1980)).
- 7 -
guilty of rape." Code § 18.2-63 states, "[i]f any person
carnally knows, without the use of force, a child thirteen years
of age or older but under fifteen years of age, such person
shall be guilty of a Class 4 felony." The code section further
defines "carnal knowledge" as "includ[ing] the acts of sexual
intercourse, cunnilingus, fellatio, anallingus, anal
intercourse, and animate and inanimate object sexual
penetration."
Thus, Code § 18.2-61 requires proof of facts that Code
§ 18.2-63 does not require, and vice versa. Code § 18.2-61
requires proof of (i) sexual intercourse, (ii) that is
accomplished against the complaining witness's will, (iii) by
force, threat, or intimidation, while Code § 18.2-63 requires
proof of (i) carnal knowledge, which includes acts other than
sexual intercourse, (ii) with a child between thirteen and
fifteen years old, (iii) without the use of force. Accordingly,
rape requires proof of two facts, specifically, sexual
intercourse and the use of force, that carnal knowledge does not
require. Carnal knowledge requires proof of one fact that rape
does not require, specifically, that the victim be between
thirteen and fifteen years old. Carnal knowledge also does not
require the act of sexual intercourse or the use of force,
required by rape. Therefore, under the traditional Blockburger
test, carnal knowledge is not a lesser-included offense of rape,
and the trial court did not err in allowing the prosecution of
- 8 -
the offense to proceed. 11 Therefore, Ragsdale's argument fails
because he was not subsequently prosecuted for the "same
offense."
Finally, Ragsdale argues that the trial court erred in
finding the evidence sufficient as a matter of law to sustain
the conviction. Under accepted principles, "[w]here the
sufficiency of the evidence is challenged on appeal, [the]
evidence must be construed in the light most favorable to the
Commonwealth, giving it all reasonable inferences fairly
deducible therefrom." 12 The "'judgment of a trial court sitting
without a jury is entitled to the same weight as a jury verdict
and will not be disturbed on appeal unless plainly wrong or
without evidence to support it.'" 13 Moreover, "the conclusions
of the fact finder on issues of witness credibility may be
disturbed on appeal only when we find that the witness'
testimony was 'inherently incredible, or so contrary to human
experience as to render it unworthy of belief.'" 14 "In all other
11
Blockburger, 284 U.S. at 299.
12
Norman v. Commonwealth, 2 Va. App. 518, 520, 346 S.E.2d
44, 45 (1986) (citing Higginbotham v. Commonwealth, 216 Va. 349,
352, 218 S.E.2d 534, 537 (1975)).
13
Brown v. Commonwealth, 5 Va. App. 489, 491, 364 S.E.2d
773, 774 (1988) (quoting Hambury v. Commonwealth, 3 Va. App.
435, 437, 350 S.E.2d 524, 524 (1986)).
14
Ashby v. Commonwealth, 33 Va. App. 540, 548, 535 S.E.2d
182, 187 (2000) (quoting Fisher v. Commonwealth, 228 Va. 296,
299-300, 321 S.E.2d 202, 204 (1984)).
- 9 -
cases, we must defer to the conclusions of 'the fact finder[,]
who has the opportunity of seeing and hearing the witnesses.'" 15
"These same principles apply in cases involving rape, sodomy,
and other sexual offenses, which may be sustained solely upon
the testimony of the victim, even in the absence of
corroborating evidence." 16
The evidence in the case at bar, when viewed in the light
most favorable to the Commonwealth, is sufficient to find
Ragsdale guilty of carnal knowledge of C.W. C.W. testified that
she was fourteen years of age on the date of the offense and
that she had sexual intercourse with Ragsdale on that day.
Further, the trial court, in finding Ragsdale guilty, stated, "I
thought that [C.W.] was an extremely credible witness. . . . I
think her testimony is extremely credible and [Ragsdale's] to
the contrary." Ragsdale offered no evidence, other than his own
self-serving testimony, to rebut C.W.'s testimony. 17 We hold the
15
Ashby, 33 Va. App. at 548, 535 S.E.2d at 187 (quoting
Schneider v. Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735,
736-37 (1985)).
16
Ashby, 33 Va. App. at 548-49, 535 S.E.2d at 187.
17
See Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500
S.E.2d 233, 235 (1998) (holding that "the fact finder is
entitled to disbelieve the self-serving testimony of the accused
and to conclude that the accused is lying to conceal his
guilt").
- 10 -
evidence was therefore sufficient to prove beyond a reasonable
doubt that Ragsdale committed the charged offense.
Affirmed.
- 11 -
Benton, J., concurring.
Code § 18.2-63 provides that the term "carnal knowledge"
includes acts of sexual intercourse, cunnilingus, fellatio,
annallingus, anal intercourse, animate object sexual
penetration, or inanimate object sexual penetration. Prior to
the trial, Ragsdale did not file a motion for a bill of
particulars seeking to learn what act of carnal knowledge the
Commonwealth intended to prove. The sole contention raised by
Ragsdale's pretrial plea of double jeopardy was the claim that
"to try [him] on the present indictment would constitute double
jeopardy and a denial of his rights under the Constitution." At
the argument on the motion, the prosecutor asserted that carnal
knowledge could be proved by evidence of one of various sexual
acts under Code § 18.2-63.
For purposes of double jeopardy, "the test to be applied to
determine whether there are two offenses or only one, is whether
each [statutory] provision requires proof of a fact which the
other does not." Blockburger v. United States, 284 U.S. 299,
304 (1932). Applying this test in Whalen v. United States, 445
U.S. 684 (1980), the United States Supreme Court noted that
although courts should not look to the facts as alleged in the
indictments, id. at 694 n.8, courts should look at the elements
of the offense as alleged in the indictments. Thus, in Whalen,
the Supreme Court ruled as follows:
- 12 -
In this case, resort to the Blockburger
rule leads to the conclusion that Congress
did not authorize consecutive sentences for
rape and for a killing committed in the
course of the rape, since it is plainly not
the case that "each provision requires proof
of a fact which the other does not." A
conviction for killing in the course of a
rape cannot be had without proving all the
elements of the offense of rape. The
Government contends that felony murder and
rape are not the "same" offense under
Blockburger, since the former offense does
not in all cases require proof of a rape;
that is, [the felony murder statute]
proscribes the killing of another person in
the course of committing rape or robbery or
kidnapping or arson, etc. Where the offense
to be proved does not include proof of a
rape – for example, where the offense is a
killing in the perpetration of a robbery –
the offense is of course different from the
offense of rape, and the Government is
correct in believing that cumulative
punishments for the felony murder and for a
rape would be permitted under Blockburger.
In the present case, however, proof of rape
is a necessary element of proof of the
felony murder, and we are unpersuaded that
this case should be treated differently from
other cases in which one criminal offense
requires proof of every element of another
offense. There would be no question in this
regard if Congress, instead of listing the
six lesser included offenses in the
alternative, had separately proscribed the
six different species of felony murder under
six statutory provisions. It is doubtful
that Congress could have imagined that so
formal a difference in drafting had any
practical significance, and we ascribe none
to it. To the extent that the Government's
argument persuades us that the matter is not
entirely free of doubt, the doubt must be
resolved in favor of lenity.
445 U.S. at 693-94 (citations and footnote omitted).
- 13 -
The Supreme Court of Virginia has held that, "[i]n applying
the Blockburger test, we look at the offenses charged in the
abstract, without referring to the particular facts of the case
under review." Coleman v. Commonwealth, 261 Va. 196, 200, 539
S.E.2d 732, 734 (2001). The Supreme Court's decision in Coleman
appears, in its application of the test, to be at odds with
Whalen because Coleman requires that we look at "the use of the
disjunctive 'or' in the statute" as creating hypothetical
alternatives within one statute, see 261 Va. at 200, 539 S.E.2d
at 734, rather than the actuality of distinct statutes with each
having one of the disjunctive elements. See Whalen, 445 U.S. at
694 (rejecting the Government's argument that "felony murder and
rape are not the 'same' offense under Blockburger, since the
former offense does not in all cases require proof of a rape").
Indeed, "the teaching of Whalen" clearly is that "the
construction of the statute should be in terms of the actuality
and not in terms of hypothetical but not genuine possibilities."
United States v. Barrington, 662 F.2d 1046, 1052 (4th Cir.
1981).
When I apply the Coleman reasoning to this case, I conclude
that, although rape requires proof of sexual intercourse under
Code § 18.2-61 and carnal knowledge may be proved by sexual
intercourse under Code § 18.2-63, carnal knowledge does not
require proof of sexual intercourse (i.e., it also may be proved
by either of six other sexual acts). Thus viewed, the carnal
- 14 -
knowledge statute cannot be deemed a lesser-included offense of
the rape. For these reasons, I concur in affirming the
conviction.
I also would summarily note that after the Commonwealth's
evidence established that the act it was relying on to prove
carnal knowledge was the same act that gave rise to the rape
indictment, no motion was made to strike pursuant to Code
§ 19.2-243, alleging that the conviction was merely the same
charge earlier dismissed because the Commonwealth violated Code
§ 19.2-243. Thus, we need not decide that issue.
- 15 -