Breeden v. Com.

• Decision Date: 01 June 2004
• Docket Number: Record No. 2272-4)2-4.
• Citation: 596 S.E.2d 563,43 Va. App. 169
• Court: Virginia Court of Appeals
• Parties: Charles Allen BREEDEN v. COMMONWEALTH of Virginia.

596 S.E.2d 563

43 Va. App. 169

Charles Allen BREEDEN v. COMMONWEALTH of Virginia.

Record No. 2272-4)2-4.

Court of Appeals of Virginia.

June 1, 2004.

Felipita Athanas, Appellate Counsel (Public Defender Commission, on briefs), for appellant.

(Jerry W. Kilgore, Attorney General; Jennifer R. Franklin, Assistant Attorney General, on brief), for appellee.

Present: Fitzpatrick, C.J., and BENTON and CLEMENTS, JJ.

CLEMENTS, Judge.

Charles Allen Breeden was convicted in a bench trial of several offenses, among them rape, in violation of Code § 18.2-61; use of a firearm in the commission of a felony, in violation of Code § 18.2-53.1; statutory burglary, in violation of Code § 18.2-91; and possession of marijuana, in violation of Code § 18.2-250.1. On appeal, Breeden contends the trial court erred in finding the evidence sufficient to support each of these convictions and in admitting evidence of the complaining witness' recent complaints of rape under Code § 19.2-2682. For the reasons that follow, we affirm Breeden's convictions.

I. BACKGROUND

Familiar appellate principles dictate that "we view the evidence and all reasonable inferences fairly deducible from that evidence in the light most favorable to the Commonwealth, the party that prevailed below." Banks v. Commonwealth, 41 Va.App. 539, 543, 586 S.E.2d 876, 877 (2003). So viewed, the evidence established that Breeden and the complaining witness dated for some time prior to March 20, 2001. He stayed overnight in her house on several occasions and left some of his belongings at her house. Approximately two weeks before March 20, 2001, the complaining witness told Breeden she did not want him staying at her home and returned some of his belongings to his residence.

On March 20, 2001, the complaining witness left her house at 7:30 p.m. She locked her house when she left. While she was out, Breeden broke into her house through a back window and waited for her to return. When she returned at 11:30 p.m., Breeden "jumped out from behind the door" with a pistol in his hand.

Holding the gun, Breeden demanded that she tell him where she had been that night. She responded, "What do you mean, where have I been? What are you doing?" He grabbed her face between his hands, repeated his question, pushed her to the couch, and told her to sit down. Leaning over her, he told her this "was going to be the night that he ended it" and "he didn't have anything to live for." Putting the gun under his chin, Breeden threatened to "blow his head off." He then told her he wanted to "make love to her one last time before [he] end[ed] it." When she told him "no," Breeden hit her in the face with his hand, causing her nose to bleed "profusely." As she tried to stop the bleeding, Breeden lifted the front of her sweater, wiped her nose with it, and told her to go upstairs and wash her face. When she refused to go upstairs, Breeden, who had the pistol in one hand and a 12-gauge shotgun in the other, "kicked her in the butt."

When they got upstairs, Breeden pointed the pistol at himself, again threatened to kill himself, and told her he was going to have intercourse with her. She said "no," telling him she did not "feel like making love, not with somebody that's busted me in the nose." After placing the pistol on a shelf above the bed, Breeden "went ahead and had sex [with hell anyway." The complaining witness testified on cross-examination that Breeden did not threaten, force, or intimidate her to have sex. Rather, she "was afraid he was going to kill himself." When he finished having sexual intercourse, Breeden picked up the gun and kept it with him in bed throughout the night. The complaining witness testified she was "frightened," "scared," and "terrified" throughout the night and was able to sleep only "a little bit." She also testified she did not leave the house because she feared he would kill himself.

In the morning, she effectuated her "plan to get away from" Breeden and told him she was going to work. She agreed to give him a ride to his residence but, when he went back into the house to get his shoes, she left without him.

The complaining witness drove to a friend's house. Her friend immediately observed that she "had been hurt," noting one of her eyes was swollen, her nose appeared to be broken, and she was "really shaky" and crying. Over Breeden's objection, the friend testified that the complaining witness told her Breeden had "raped" her and "forced [her] to have sex with him." The friend drove the complaining witness to the sheriff's office. From there, she was taken to the hospital.

Around 8:30 a.m., Page County Investigator Rebecca Hilliards recorded a detailed statement from the complaining witness concerning the previous night's events. The entire thirty-nine-page transcript of the statement was admitted into evidence, over Breeden's objection. When asked during that interview if Breeden threatened her before having sexual intercourse with her, the complaining witness said Breeden "held the gun up under his chin" and told her she would have a "bigger mess" than she already had from when he hit her in the face before. He told her "he was going to make love to her." She told him "no" and he said he was going to anyway, "Mile last time." He then had sexual intercourse with her.

During an interview the next day with Page County Investigator Carl S. Cook and other investigators, Breeden admitted to possessing some marijuana that was found in his home. He confirmed that admission at trial, explaining that someone had given it to him, but he "hadn't used it yet."

Testifying on his own behalf at trial, Breeden denied he raped the complaining witness. He explained that, because she told him she did not want to "make love" with him after he hit her in the nose, he "had sex" with her instead. "Having sex," he further explained, "is just being with somebody, .. . like screwing them. And making love is different."

The trial court convicted Breeden of, among other crimes, rape, in violation of Code § 18.2-61; use of a firearm in the commission of a felony, in violation of Code § 18.2-53.1; statutory burglary, in violation of Code § 18.2-91; and possession of marijuana, in violation of Code § 18.2-250.1. This appeal followed.

IT. SUFFICIENCY OF THE EVIDENCE

A. Standard of Review

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, 348, 494 S.E.2d 859, 866 (1998) (quoting Cirios v. Commonwealth, 7 Va.App. 292, 295, 373 S.E.2d 164, 165 (1988)). 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 for the fact finder's determination." Crawley v. Commonwealth, 29 Va. App. 372, 375, 512 S.E.2d 169, 170 (1999). "Circumstantial evidence is as competent and is entitled to, as much weight as direct evidence, provided it is sufficiently convincing to exclude every reasonable hypothesis except that of guilt." Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983).

B. Rape

Breeden contends on appeal that the evidence was insufficient to convict him of rape because the Commonwealth, did not prove the use of force, threat, or intimidation required under Code § 18.2-61. In support of this claim, he points to the complaining witness' explicit testimony that Breeden did not force, threaten, or intimidate her to have sex.

Code § 18.2-61 reads, in pertinent part, as follows:

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. . . against the complaining witness's will, by force, threat or intimidation of or against the complaining witness or another person, . . . he or she shall be guilty of rape.

(Emphasis added.)

In order to prove force sufficient to support a rape conviction, "[t]he force must be used to overcome the victim's will. `There must be evidence of "some array or show of force in form sufficient to overcome resistance."'" Sabol v. Commonwealth, 37 Va. App. 9, 16-17, 553 S.E.2d 533, 536-37 (2001) (citation omitted) (quoting 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))).

As used in the statute, threat means expression of an intention to do bodily harm. Intimidation may occur without threats. Intimidation, as used in the statute, means 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." Sabol, 37 Va. App. at 18, 553 S.E.2d at 537. Moreover, it is clear from the inclusion in Code § 18.2-61 of the language "or another person" that the threat used by a person to get the complaining witness to have sex with him may be a threat against someone other than the complaining witness. Whether the accused used force, threat, or intimidation "to overcome the victim's will is a factual question, and this Court defers to the fact finder's decision unless plainly wrong." Id. at 17, 553 S.E.2d at 537.

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