Sabol v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Frank and Humphreys
Argued at Chesapeake, Virginia

WALT SABOL, JR.
OPINION BY
v. Record No. 2204-00-1 JUDGE ROBERT P. FRANK
OCTOBER 16, 2001
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
E. Preston Grissom, Judge

Timothy Wade Roof for appellant.

Donald E. Jeffrey, III, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.

Walt Sabol, Jr., (appellant) was convicted by a jury of two

counts of rape, in violation of Code § 18.2-61. On appeal, he

contends the trial court erred in denying his motion to strike

because (1) the Commonwealth failed to prove that the sexual act

was accomplished against the victim's will by force, threat or

intimidation and (2) the Commonwealth failed to prove the

specific date and time of the offenses. For the reasons stated

herein, we affirm in part and reverse in part.

I. BACKGROUND

The victim, L.D., who was thirty-one years old at the time

of trial, described appellant as her "adopted father" and the

"only father [she had] ever known." She lived with him and her
mother from the time she was three years old until her

mid-twenties.

In 1988, while she was still living with appellant and her

mother in California, L.D. took her mother's automatic teller

machine (ATM) card and withdrew $700 from the account without

permission. Appellant "confronted" her soon after the incident,

and she admitted taking the money. Appellant told L.D. he had

talked to a lawyer who was going to prosecute her for the theft,

and if she "didn't have sexual intercourse with him and [do]

what he wanted [her] to do that [she] was going to jail." L.D.

said she believed appellant would carry out the threat.

In early 1989, the victim and her family, including

appellant, moved to Chesapeake, Virginia. L.D. was twenty-one

years old at that time. L.D. indicated she moved to Virginia

with her parents because she had nowhere to live and "[b]ecause

my dad's threat about his bank card that also hung over my

head."

The family moved to their Chesapeake address on Adair Lane

in February 1989.

One day in the fall of 1990, about "a year and a half"

after they had moved to Chesapeake, appellant "called [her] in"

while she was raking leaves. L.D. did not want to go inside,

but she did.

Appellant then "led [her] down the hallway" and told her

she had to "take care of him," which she knew meant she had "to

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have sex with him." While he was leading her down the hallway,

she told him how much she "hated" him. She described appellant

as being "behind [her] kind of pushing [her] towards the

bedroom, leading [her] to the bedroom," where she "would [lie]

on the bed." He then got "on top of [her]" and "put his penis

into [her] vagina." She held her arms in a way that minimized

her physical contact with appellant and told him that she "hated

him and [she] hated [him] doing it." When he was finished, she

pushed him away and went into the bathroom to "wipe it all

away." During cross-examination, the victim stated this rape

took place in the "fall" of 1990, about "a year-and-a-half"

after they had moved into the Chesapeake house.

The other incident occurred when her mother was "away in

England." During cross-examination, L.D. stated this incident

occurred in May 1990. During his testimony, appellant confirmed

his wife was in England in May 1990.

Appellant again told L.D. to "take care of him." When she

said she "didn't want to," he threatened to revoke her privilege

to use the family car and to withhold money from her. She then

"went back in the bedroom" because she "just felt like [she] had

to." She explained, "My whole life he has controlled me. I've

never had to work. I never had to do anything. I didn't have

to care for myself. My parents took care of it for me."

When L.D. got back to the bedroom, she lay on the bed, and

appellant "pulled down his pants and got on top of [her]." He

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then "stuck his penis in [her] vagina." She "just laid there

and pretended it wasn't really happening" and "looked up at the

ceiling." When it "ended," she "push[ed] him off" and went into

the bathroom.

L.D. said she "continued" to "allow appellant to have sex"

with her because he "still held that incident of the ATM . . .

over [her] head." She indicated that, although she may have

been able to move in with her uncle, she "grew up having

everything, and to go from everything to living somewhere where

[she] didn't have [anything], it might sound crazy, but it was

- it's hard to go from one lifestyle to another." She said she

did not think she could "make it on [her] own" because she did

not have a car or money and had only a high school education.

She explained that appellant "always bought [her] affection."

L.D. finally went to the police in January 1999 after she

and appellant got into an argument about her eight-year-old

daughter staying alone with him. She reported the rapes to

police because she was "tired of hiding it or pretending it

never happened," and she "didn't want anything to happen to

[her] kids." While L.D. told her husband about the rapes in

1991, before they were married, she never confided in her mother

or sister.

During cross-examination, L.D. admitted she could have

lived with an uncle instead of moving with her mother and

appellant to Chesapeake. She also conceded that she continued

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to have a "good relationship" with appellant following the rapes

and in fact continued to live in his house until 1994.

Appellant denied any sexual involvement with L.D.

Appellant moved to strike the evidence at the end of the

Commonwealth's case, alleging that the Commonwealth had failed

to prove the "force, threat or intimidation" element of the

charges and the Commonwealth had failed to prove the rapes

occurred in the time frames alleged in the warrants. He renewed

his motion following the defense's case-in-chief in regards to

the sufficiency of evidence to show "force, threat or

intimidation." However, he did not renew his motion claiming

the Commonwealth failed to prove the rapes had occurred during

the time frames alleged in the warrants.

In overruling appellant's motion to strike following the

Commonwealth's case, the trial judge pointed to testimony of

appellant's threats to put L.D. in jail if she did not have sex

with him and of the control appellant had over L.D. as

sufficient evidence of force and intimidation to overcome the

motion. The trial court further found evidence of force when

appellant pushed L.D. toward the bedroom.

II. ANALYSIS

FORCE, THREAT OR INTIMIDATION

In order to find appellant guilty of rape under Code

§ 18.2-61(A)(i), the evidence must support a finding that the

sexual intercourse was accomplished against the victim's will

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"by force, threat or intimidation." In its review, this Court

examines the evidence and all the reasonable inferences fairly

deducible therefrom in the light most favorable to the

Commonwealth. Clark v. Commonwealth, 30 Va. App. 406, 408-09,

517 S.E.2d 260, 261 (1999). However, this review must occur

within the parameters set by Code § 18.2-61, which are strictly

construed against the Commonwealth. Battle v. Commonwealth, 12

Va. App. 624, 627, 406 S.E.2d 195, 196 (1991).

Force generally requires proof of more than "merely the

force required to accomplish . . . the statutorily defined

criminal acts." Johnson v. Commonwealth, 5 Va. App. 529, 534,

365 S.E.2d 237, 240 (1988). The force must be used to overcome

the victim's will. Id. at 535, 365 S.E.2d at 240. "[T]here

must be evidence of 'some array or show of force in form

sufficient to overcome resistance.'" Jones v. Commonwealth, 219

Va. 983, 986, 252 S.E.2d 370, 372 (1979) (quoting Davis v.

Commonwealth, 186 Va. 936, 946, 45 S.E.2d 167, 171 (1947)).

Whether force was used to overcome the victim's will is a

factual question, and this Court defers to the fact finder's

decision unless plainly wrong. See Young v. Commonwealth, 185

Va. 1032, 1042, 40 S.E.2d 805, 810 (1947).

Evidence that appellant pushed L.D. down the hall toward

the bedroom to accomplish the fall 1990 rape was sufficient

proof of the use of force to overcome her will. As the trial

court found when ruling on the motion to strike:

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 If you consider the evidence in the light
most favorable to the Commonwealth in this
case, you have non-consensual acts that were
committed against the victim, and force is
present even though it may not be so great
as to cause bodily harm. She testified that
[during] one of the incidents he was pushing
her down the hallway against her will
towards the bedroom, that none of it was
done with her consent, that she held her
body in such a way that he could not get as
close to her as he otherwise could, and that
she demanded that he not do it . . . .

The record here supports the jury's finding of guilt on one

warrant. While appellant pushed L.D. down the hall, he said she

"had to take care of him." Although L.D. expressed her hatred

of him, appellant ignored her statements and continued to push

her toward the bedroom and the bed. This evidence supports a

finding that appellant used force to overcome the victim's will.

We cannot say that the "jury's verdict . . . is plainly wrong or

without evidence to support it." Ashby v. Commonwealth, 33 Va.

App. 540, 548-49, 535 S.E.2d 182, 187 (2000).

However, no evidence of force was presented in relation to

the May 1990 incident. L.D. walked to the bedroom by herself

and undressed herself; appellant touched her only enough to

commit the sexual intercourse. Therefore, the Commonwealth had

to prove appellant used either a threat or intimidation to

overcome the victim's will.

"'[T]hreat means expression of an intention to do bodily

harm.'" Morse v. Commonwealth, 17 Va. App. 627, 634, 440 S.E.2d

145, 150 (1994) (quoting Sutton v. Commonwealth, 228 Va. 654,

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663, 324 S.E.2d 665, 669-70 (1985)). In Bivens v. Commonwealth,

19 Va. App. 750, 752, 454 S.E.2d 741, 742 (1995), a robbery

case, this Court defined a threat as "an overt expression, by

words or conduct, of a present intention to commit an immediate

act of violence or force against the victim."

No evidence suggests appellant expressly threatened L.D.

with bodily harm. He did threaten, apparently years earlier, to

have her prosecuted for theft. However, nothing in the record

suggests this threat was a threat to do bodily harm or that L.D.

perceived it as a threat to her physically.

"Intimidation differs from threat in that it occurs without

an express threat by the accused to do bodily harm." Id. at

753, 454 S.E.2d at 742-43. Intimidation requires "putting a

victim in fear of bodily harm by exercising such domination and

control of her as to overcome her mind and overbear her will.

Intimidation may be caused by the imposition of psychological

pressure on one who, under the circumstances, is vulnerable and

susceptible to such pressure." Sutton v. Commonwealth, 228 Va.

654, 663, 324 S.E.2d 665, 670 (1985). This fear of bodily harm

must derive from some conduct or statement of the accused.

Harris v. Commonwealth, 3 Va. App. 519, 522, 351 S.E.2d 356, 357

(1986).

In Sutton, the fear of bodily harm was created by the

threat to return the fifteen-year-old victim to her father, who

"beat her 'all the time,'" unless she allowed her uncle to have

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sexual intercourse with her. 228 Va. at 659-60, 324 S.E.2d at

668. The girl also feared Sutton himself would beat her. Id.

at 660, 324 S.E.2d at 668.

Although the threat was not explicit, the evidence in

Sutton supported a finding of intimidation, given the proven

danger of bodily harm if the victim were returned to her father

and the testimony that the victim feared bodily injury by

Sutton's hand because he appeared so angry when she refused him.

See also Woodard v. Commonwealth, 27 Va. App. 405, 410, 499

S.E.2d 557, 559 (1998).

Although the evidence is viewed in the light most favorable

to the Commonwealth, Higginbotham v. Commonwealth, 216 Va. 349,

352, 218 S.E.2d 534, 537 (1975), no evidence in this record

supports the finding that appellant intimidated L.D. into sexual

intercourse with him while his wife was away in England. The

victim never claims appellant, through words or deeds, put her

in fear of bodily harm. Nothing in the record suggests she was

ever in danger of bodily harm. L.D. never testified that she

was actually in fear for her personal safety, only that she was

afraid of losing the lifestyle to which she had become

accustomed.

This case is very different from Myers v. Commonwealth, 11

Va. App. 634, 400 S.E.2d 803 (1991). In Myers, the Court found

intimidation because Myers told the victim "she was going to do

something for him or get out [of the truck] and walk," and the

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victim "was frightened at the prospect of being alone and on

foot in a deserted area and was fearful of whom she might meet

and what might be done to her." Id. at 637, 400 S.E.2d at 805.

From this evidence, the fact finder could infer that Myers's

statement intimidated the victim, that the prospect of being

alone in a deserted area, far from any community, put her in

fear of bodily harm and overcame her will to resist his demand

for sexual intercourse.

Here, the victim never testified she feared bodily harm if

she refused appellant's demands. While she did testify he was

like a father to her, that relationship by itself does not

support an inference of intimidation.

This Court recently considered a similar case where the

father of a thirteen-year-old girl lay down beside her in bed

and began fondling her. Bower v. Commonwealth, 36 Va. App. 382,

551 S.E.2d 1 (2001). The Commonwealth in Bower argued that the

evidence of their familial relationship and Bower's physical size
1
was sufficient to prove intimidation. We explained:

We find no language . . . that creates a
subclass of victims over age twelve where
evidence of intimidation, force or threat is
sufficiently proved based solely on
parentage or size differential. The
Commonwealth must prove beyond a reasonable
doubt events or a course of conduct that
shows the victim's will has been overcome by
1
Bower was charged with object sexual penetration in
violation of Code § 18.2-67.2(A)(2), which, like Code
§ 18.2-61(A)(i), requires proof of force, threat or
intimidation.

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 such dominion and control as to put the
victim in fear of bodily harm.

Id. at 391, 551 S.E.2d at 5.

Here also, the Commonwealth failed to prove appellant used

force, threat or intimidation to overcome L.D.'s will in May

1990.

DATES ON WARRANTS

Appellant contends the Commonwealth did not prove the rapes

occurred on a specific date and at a specific time. He argues

that the victim did not testify about a specific day, month, or

year in which these events occurred. He made this argument to

the trial court in a motion to strike at the close of the

Commonwealth's evidence and to the jury in his closing argument.

To preserve an issue for appeal, appellant must make a

contemporaneous objection to the court's ruling. Rule 5A:18.

"[I]n a jury trial, the closing argument is addressed to the

jury, not the trial judge, and does not require the trial judge

to rule on the evidence as a matter of law. Only a motion to

strike the evidence accomplishes that objective [of preserving a

sufficiency issue] in a jury trial." Campbell v. Commonwealth,

12 Va. App. 476, 481, 405 S.E.2d 1, 3 (1991) (en banc).

Appellant did not make his argument to the trial court at

the close of all the evidence, after the jury returned with the

guilty verdicts, or at the final sentencing hearing. The only

time the trial court considered the sufficiency of the evidence

to prove the dates of the offenses was before appellant

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testified and corroborated the time frame for at least one of

the incidents.

Appellant, therefore, has not preserved this issue for

appeal. Contrast Zook v. Commonwealth, 31 Va. App. 560, 568,

525 S.E.2d 32, 36 (2000) (holding that under appropriate

circumstances and with appropriate rulings by the trial court,

an untimely objection to evidence can preserve an issue for

appeal).

III. CONCLUSION

For these reasons, we affirm the conviction for the fall of

1990 rape offense. The trial court record in this case does not

clearly delineate which docket number pertains to which charge.

Accordingly, this matter is remanded to the trial court to

determine which warrant and docket number pertains to the May

1990 rape conviction. Upon such determination, the trial court

is further directed to dismiss the appropriate warrant.

Affirmed in part and
reversed and remanded
in part.

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