COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Fitzpatrick
Argued at Richmond, Virginia
CLARENCE DUKE
v. Record No. 0967-95-2 MEMORANDUM OPINION * BY
JUDGE JOHANNA L. FITZPATRICK
COMMONWEALTH OF VIRGINIA JUNE 4, 1996
FROM THE CIRCUIT COURT OF SUSSEX COUNTY
Robert G. O'Hara, Jr., Judge
Connie Louise Edwards for appellant.
Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Clarence Duke (appellant) was convicted in a bench trial of
rape in violation of Code § 18.2-61 and abduction with intent to
defile in violation of Code § 18.2-48. On appeal, he argues that
the trial court erred in finding the evidence sufficient to prove
that he committed rape, specifically the essential element of
penetration. Because appellant failed to present this argument
at trial, he is barred from now challenging the sufficiency of
this evidence on appeal.
On September 10, 1994, the victim was in a motel parking lot
when appellant drove up, engaged her in conversation, and then
pulled her into his vehicle. Appellant drove onto I-95 going
north and pulled over to the side of the highway a few miles
outside of town. He forced the victim into the back of the car
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
and attempted to rape her, but was unable to penetrate her at
that point. He then continued driving, forcing the victim to
perform oral sex on him. Appellant pulled over again, had "sex"
with the victim, and then let her go.
Appellant was charged with rape in violation of Code
§ 18.2-61, abduction with intent to defile in violation of Code
§ 18.2-48, and forcible sodomy in violation of Code § 18.2-67.1.
At trial, the victim testified that she protested appellant's
advances and that he penetrated her when they had sex after
pulling over a second time. Appellant testified that the victim
initiated the sexual contact by performing oral sex on him and
that he had sex with her. The Commonwealth introduced
appellant's earlier statement, in which he admitted having sex
with the victim.
At the end of the Commonwealth's evidence, appellant moved
to strike, arguing that the Commonwealth had not established
venue for the forcible sodomy charge. At the conclusion of all
the evidence, appellant did not renew his motion to strike.
Appellant did not challenge the sufficiency of the evidence of
penetration during his motion to strike or during closing
argument. The trial court found appellant guilty of rape and
abduction with intent to defile, and sentenced him to twenty-five
years for rape and twenty years with ten suspended for abduction.
The court dismissed the forcible sodomy charge.
"No ruling of the trial court . . . will be considered as a
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basis for reversal unless the objection was stated together with
the grounds therefor at the time of the ruling, except for good
cause shown or to enable the Court of Appeals to attain the ends
of justice." Rule 5A:18. "[I]n a bench trial, where a defendant
wishes to preserve a sufficiency motion after presenting
evidence, the defendant must make a motion to strike at the
conclusion of all the evidence, present an appropriate argument
in summation, or make a motion to set aside the verdict." Howard
v. Commonwealth, 21 Va. App. 473, 478, 465 S.E.2d 142, 144
(1995). Additionally, "a challenge to the sufficiency of the
Commonwealth's evidence is waived if not raised with some
specificity in the trial court." Mounce v. Commonwealth, 4 Va.
App. 433, 435, 357 S.E.2d 742, 744 (1987).
Appellant failed to raise the issue of the sufficiency of
the evidence of penetration to support his conviction for rape
either in his motion to strike at the conclusion of the
Commonwealth's evidence, during his closing argument, or in a
motion to set aside the verdict. Thus, Rule 5A:18 bars our
consideration of this question on appeal. Moreover, the record
does not reflect any reason to invoke the good cause or ends of
justice exceptions to Rule 5A:18.
Accordingly, the decision of the trial court is affirmed.
Affirmed.
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BENTON, J., dissenting.
I would hold that the question of the sufficiency of the
evidence to prove the charge of rape should be reached under "the
ends of justice." Rule 5A:18.
It is only fair and proper to say that the
point upon which we are [asked to reverse]
the judgment does not seem to have been
raised in the lower court. The point is one,
however, which goes to the substance of the
Commonwealth's case, and the failure to raise
it at an earlier stage does not deprive the
accused of the right to take advantage of it
here.
Davis v. Commonwealth, 132 Va. 521, 524, 110 S.E. 356, 357
(1922). See also Johnson v. Commonwealth, 5 Va. App. 529,
534-35, 365 S.E.2d 237, 240 (1988). This Court may review a
judgment "to attain the ends of justice" whenever an accused "has
been convicted of a crime of which under the evidence he could
not properly be found guilty." Ball v. Commonwealth, 221 Va.
754, 758-59, 273 S.E.2d 790, 793 (1981).
"One essential element of rape is penetration, however
slight, of a vagina by a penis." Kehinde v. Commonwealth, 1 Va.
App. 342, 345, 338 S.E.2d 356, 357 (1986). The testimony in this
case established only that Duke and the victim "had sex."
Convictions may not be based upon speculation, surmise, or
conjecture. Thomas v. Commonwealth, 187 Va. 268, 272, 46 S.E.2d
388, 391 (1948). "The Due Process Clause protects the accused
against conviction except upon proof beyond a reasonable doubt of
every fact necessary to constitute the crime with which he is
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charged." In re Winship, 397 U.S. 358, 364, 25 L. Ed. 2d 368, 90
S. Ct. 1068 (1970). As this Court stated when reversing a
conviction to attain the ends of justice, "[i]n view of the
direct evidence from the victim, there is reasonable doubt on an
element essential to support appellant's conviction of [a sex
offense]." Chrisman v. Commonwealth, 3 Va. App. 371, 378, 349
S.E.2d 899, 903 (1986).
Because the evidence did not prove the essential element of
penetration of the vagina by a penis, I would reverse the rape
conviction.
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