COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Frank and Clements
Argued at Richmond, Virginia
HAL KENNEDY LEE
MEMORANDUM OPINION * BY
v. Record No. 2191-00-2 JUDGE JEAN HARRISON CLEMENTS
OCTOBER 2, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Carolyn V. Grady (Epperly, Follis & Schork,
P.C.; Carolyn V. Grady, P.C., on briefs), for
appellant.
Donald E. Jeffrey, III, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Appellant Hal Kennedy Lee was convicted in a jury trial of
rape in violation of Code § 18.2-61 and forcible sodomy in
violation of Code § 18.2-67.1. On appeal, he contends (1) the
evidence was not sufficient to sustain the convictions and (2) the
trial court erred by admitting into evidence Lee's hearsay
statements and by allowing prosecutorial misconduct. For the
reasons that follow, we affirm the convictions.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, this opinion recites only those facts and incidents of the
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
proceedings as necessary to the parties' understanding of the
disposition of this appeal.
I.
Lee contends the evidence presented by the Commonwealth was
insufficient to sustain his convictions because the victim's
testimony was inconsistent, uncorroborated, and incredible. 1
When the sufficiency of the evidence is challenged on appeal,
we review the evidence "in the light most favorable to the
Commonwealth, granting to it all reasonable inferences fairly
deducible therefrom." Bright v. Commonwealth, 4 Va. App. 248,
250, 356 S.E.2d 443, 444 (1987). "In so doing, we must discard
the evidence of the accused in conflict with that of the
Commonwealth, and regard as true all the credible evidence
favorable to the Commonwealth and all fair inferences that may be
drawn therefrom." Watkins v. Commonwealth, 26 Va. App. 335, 349,
494 S.E.2d 859, 866 (1998). We are further mindful that the
"credibility of a witness, the weight accorded the testimony, and
the inferences to be drawn from proven facts are matters solely
1
Lee also asserts on appeal that the evidence was not
sufficient to sustain his convictions because (1) there was no
forensic evidence and (2) the evidence, being circumstantial,
did not exclude every reasonable hypothesis of his innocence.
However, these arguments were never presented to the trial
court. Thus, they were not properly preserved, and Rule 5A:18
bars our consideration of them on appeal. Furthermore, we find
no reason in the record to invoke the "good cause" or "ends of
justice" exceptions. Lee also argues on appeal that his
attorney failed to introduce DNA evidence vital to his defense.
We denied Lee's petition for appeal on this question and will
not consider it here.
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for the fact[ ]finder's determination." Keyes v. City of Virginia
Beach, 16 Va. App. 198, 199, 428 S.E.2d 766, 767 (1993). We will
not disturb a conviction unless it is plainly wrong or unsupported
by the evidence. Sutphin v. Commonwealth, 1 Va. App. 241, 243,
337 S.E.2d 897, 898 (1985).
The Commonwealth preliminarily contends Lee's argument is
procedurally barred on appeal because it was not presented
explicitly enough at trial to apprise the trial court of the
argument he now makes on appeal. We disagree with the
Commonwealth. On a motion to strike, Lee's counsel argued to the
trial court that, "under all the evidence the Court has heard, the
credibility of some of the witnesses, [and] inconsistencies on the
part of the Commonwealth's evidence the evidence was insufficient
to convict Lee of rape and forcible sodomy." Despite its lack of
precision, we conclude that counsel's argument on Lee's behalf
gave the trial court and the Commonwealth the opportunity to
intelligently address, examine, and resolve this issue in the
trial court. The issue is, therefore, properly before us on
appeal.
"The Commonwealth bears the burden of 'proving beyond a
reasonable doubt each and every constituent element of a crime
before an accused may stand convicted of that particular
offense.'" Bruce v. Commonwealth, 22 Va. App. 264, 268, 469
S.E.2d 64, 67 (1996) (quoting Martin v. Commonwealth, 13 Va. App.
524, 529, 414 S.E.2d 401, 403 (1992) (en banc)), aff'd, 256 Va.
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371, 506 S.E.2d 318 (1998). To convict Lee of rape under Code
§ 18.2-61, the Commonwealth had to prove beyond a reasonable doubt
that Lee had sexual intercourse with A.K.N. against her will, by
force. To convict Lee of forcible sodomy under Code § 18.2-67.1,
the Commonwealth had to prove beyond a reasonable doubt that Lee
put his tongue in A.K.N.'s vagina against her will, by force.
A.K.N. lived with her mother. Lee, the mother's paramour,
had a key to the house and visited often. A.K.N. testified that,
on the day in question, she was walking from her room toward the
living room when Lee grabbed her by the arm, pulled her into the
kitchen, and told her "to let him eat [her] pussy." When A.K.N.
said "no," Lee dragged her into her bedroom and pulled her jeans
down to her waist, "a little past [her] backside." A.K.N. was
able to get her pants up and told Lee to "stop." Lee then dragged
A.K.N. into her mother's room, where he again attempted to pull
down her jeans. Again, A.K.N. told Lee to "stop." A.K.N. told
Lee she did not want to have sex with him. Lee then dragged
A.K.N. into the kitchen, pushed her against a cabinet, pulled her
jeans down to her ankles, and threw her on the floor.
A.K.N. testified that Lee "put his mouth on [her] vagina and
started licking it." She felt his tongue "go inside of [her]
vagina." When she resisted, he bit her "on [her] vagina."
Finally, Lee put her legs "over his shoulders" and "put his penis
in [her] vagina." A.K.N. testified she felt his penis "inside"
her for about two minutes while he "move[d] his penis around
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[inside her] vagina." After the incident, A.K.N. went to a
neighbor's home and called the police.
Ginger Allen, a nurse who examined A.K.N. later that day,
testified that A.K.N. had injuries in the area between the vagina
and the anus, lacerations inside the vagina, and bruising around
the cervix and the wall of the vagina. A.K.N.'s mother testified
that Lee admitted to her in a telephone call after the preliminary
hearing that he had engaged in consensual sex with A.K.N.
A.K.N.'s testimony established Lee's oral and penile
penetration of her vagina. The evidence was neither inherently
incredible nor so contrary to human experience as to render it
unworthy of belief as a matter of law. See Simpson v.
Commonwealth, 199 Va. 549, 558, 100 S.E.2d 701, 707 (1957). The
jury, as fact finder, believed A.K.N.'s testimony. Convictions
for sexual offenses may be sustained based upon the victim's
testimony alone. Garland v. Commonwealth, 8 Va. App. 189, 191,
379 S.E.2d 146, 147 (1989). Here, however, the Commonwealth also
presented corroborating medical evidence that A.K.N. had suffered
recent injuries to her vagina. Furthermore, Lee confessed to
A.K.N.'s mother his act of sexual intercourse with A.K.N.
Based on our review of the record, we cannot say the jury's
verdict was plainly wrong or without credible evidence to support
it. We hold that the evidence presented was sufficient for the
jury to conclude beyond a reasonable doubt that Lee committed rape
and forcible sodomy upon A.K.N.
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II.
Lee contends the trial court erred by allowing Detective
Toney to testify about statements made to him by Lee. Those
statements, Lee argues, were hearsay and should not have been
admitted into evidence. However, Lee failed to object to this
testimony in the trial court. Lee also asserts the trial court
erred in admitting testimony from A.K.N.'s mother that Lee told
her he had engaged in consensual sex with A.K.N. However, Lee's
objection to that testimony in the trial court was based on
relevance, not the hearsay claim he now raises on appeal.
Lee further argues the prosecutor improperly interjected
personal opinion and emotional appeal in her closing argument
during the guilt phase of the trial when she told the jury:
"Decent men don't do things that Hal Lee did. Rapists do."
Although Lee did not object to the argument at trial, he now
asserts the trial court had an affirmative duty to act to ensure
him a fair and impartial trial. He was, he concludes, prejudiced
by the trial court's failure to take corrective action.
Finally, Lee contends he was also prejudiced in the
sentencing phase of the trial when the Commonwealth asked Lee's
wife if she was aware that Lee had been investigated for
committing an unrelated sexual offense against his child.
Although Lee did not immediately object to the question, the trial
judge interrupted the answer, indicating that the evidence of the
alleged investigation was not relevant. At Lee's request, the
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trial judge gave the jury a cautionary instruction to disregard
the testimony concerning the alleged investigation.
The Commonwealth contends that Lee's claims are barred under
Rule 5A:18 because he failed to properly preserve these issues at
the trial level for appeal.
Rule 5A:18 provides, in pertinent part, that "[n]o ruling of
the trial court . . . will be considered as a basis for reversal
unless the objection was stated together with the grounds
therefore at the time of the ruling." (Emphasis added.) Thus, we
will not consider a claim of trial court error as a ground for
reversal "where no timely objection was made." Marshall v.
Commonwealth, 26 Va. App. 627, 636, 496 S.E.2d 120, 125 (1998).
Likewise, we will not consider an argument on appeal that is
different from the argument presented to the trial court, even if
it relates to the same issue. See Rule 5A:18; Buck v.
Commonwealth, 247 Va. 449, 452-53, 443 S.E.2d 414, 416 (1994);
Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488
(1998). The purpose of these rules is to ensure that the trial
court and opposing party are given the opportunity to
intelligently address, examine, and resolve issues in the trial
court, thus avoiding unnecessary appeals and reversals. Lee v.
Lee, 12 Va. App. 512, 514, 404 S.E.2d 736, 737 (1991) (en banc);
Kaufman v. Kaufman, 12 Va. App. 1200, 1204, 409 S.E.2d 1, 3-4
(1991).
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Lee acknowledges that he did not preserve these issues but
asks us to find that the trial judge committed manifest injustice
and to invoke the "ends of justice" exception to Rule 5A:18 in
order to consider the merits of his claims. "[T]he ends of
justice exception is narrow and is to be used sparingly . . . ."
Brown v. Commonwealth, 8 Va. App. 126, 132, 380 S.E.2d 8, 10
(1989). "In order to avail oneself of the exception, a defendant
must affirmatively show that a miscarriage of justice has
occurred, not that a miscarriage might have occurred." Redman v.
Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997).
The trial error must be "clear, substantial and material." Brown,
8 Va. App. at 132, 380 S.E.2d at 11.
The statements Lee made to Detective Toney and to the
victim's mother were clearly admissible against him as party
admissions. Furthermore, it was entirely proper for the
prosecutor to argue and comment on the testimony, any
discrepancies in the evidence, and inferences and conclusions to
be drawn therefrom. Lee does not affirmatively persuade us, as he
must, that a miscarriage of justice occurred because of the
Commonwealth's argument. Finally, the record reflects that the
trial judge instructed the jury to disregard the information about
an unrelated investigation that was brought up during the penalty
phase. Juries are presumed to follow "an explicit cautionary
instruction promptly given, unless the record clearly shows that
the jury disregarded it." Spencer v. Commonwealth, 240 Va. 78,
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95, 393 S.E.2d 609, 619 (1990). The record does not indicate the
jury failed to follow the cautionary instruction given by the
trial judge. We hold, therefore, that the "ends of justice"
exception does not require us to consider these arguments on
appeal.
Accordingly, we affirm Lee's convictions.
Affirmed.
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