COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Humphreys
Argued at Richmond, Virginia
MARKECE ANTHONY TOWLES
MEMORANDUM OPINION * BY
v. Record No. 0663-99-2 JUDGE ROBERT J. HUMPHREYS
JULY 25, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Thomas N. Nance, Judge
Carolyn V. Grady (John L. Taylor, III, on
brief), for appellant.
Kathleen B. Martin, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Markece Towles was convicted in a jury trial of abduction
with the intent to defile, forcible sodomy, use of a firearm in
the commission of forcible sodomy, and assault and battery. He
argues on appeal that the trial court erred in admitting into
evidence the results of a DNA analysis of semen removed from a
T-shirt worn by the victim. Finding no error, we affirm the
convictions.
The Commonwealth's evidence showed that appellant, Antoine
Lee Smith and Jawari Wood assaulted and battered and repeatedly
sexually assaulted the victim at gunpoint. The victim was
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
previously convicted of felonies involving distribution of
cocaine and welfare fraud and, at the time of the offenses, she
was on parole. The victim testified that appellant sodomized
her but did not ejaculate. She also testified that after Wood
sodomized her and ejaculated in her mouth, she spit the semen
into the T-shirt she had been wearing.
Before trial, a hearing was held on a motion in limine,
filed by appellant, seeking to prevent the Commonwealth from
introducing evidence of the DNA analysis. This analysis
compared the DNA in the semen recovered from the T-shirt with
the DNA of the three codefendants. The results eliminated
appellant and Smith as possible sources of the semen, but found
the DNA to be consistent with Wood's DNA profile.
During the hearing on this motion, counsel for appellant
agreed that the results of the DNA test were admissible, but
objected to the statement in the report that the DNA found on
the shirt was consistent with Wood's DNA. The trial court
overruled the objection. Upon appellant's counsel's request and
the prosecutor's concurrence, both counsel agreed to a
stipulation which contained the statement that appellant could
"be eliminated as a possible contributor of the sperm and
hair/fibers."
"The admissibility of evidence is within the broad
discretion of the trial court, and a ruling will not be
disturbed on appeal in the absence of an abuse of discretion."
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Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842
(1988). Evidence is generally admissible if it is both relevant
and material. See Evans-Smith v. Commonwealth, 5 Va. App. 188,
196, 361 S.E.2d 436, 441 (1987). "Evidence is relevant if it
has any logical tendency, however slight, to establish a fact at
issue in the case." Ragland v. Commonwealth, 16 Va. App. 913,
918, 434 S.E.2d 675, 678 (1993).
The DNA evidence, including the contested finding with
respect to Woods, corroborated the testimony of the victim by
supplying scientific analysis of the physical evidence which
supported her version of the events. Therefore, this evidence
was both relevant and material.
Appellant complains, for the first time on appeal, that
because his name appears on the DNA test report, he was
unconstitutionally denied a fair trial. Aside from this claim
being procedurally barred, see Rule 5A:18, we note that the DNA
report was never admitted into evidence and the only reference
to appellant, contained in the stipulation that was before the
jury, was the language specifically requested by appellant's
counsel. Having sought the inclusion of his name in the
stipulation, he may not now be heard to object to that
inclusion. See Manns v. Commonwealth, 13 Va. App. 677, 679-80,
414 S.E.2d 613, 615 (1992).
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Finding no error, we affirm the ruling of the trial court
and appellant's convictions.
Affirmed.
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