Donta Terme. Smith v. Commonwealth Of Va.

• Decision Date: 17 August 2010
• Docket Number: Record No. 0808-09-2.
• Parties: Donta Termaine SMITH, s/k/a Donta Termine Smithv.COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

56 Va.App. 711

697 S.E.2d 14

Donta Termaine SMITH, s/k/a Donta Termine Smithv.COMMONWEALTH of Virginia.

Record No. 0808-09-2.

Court of Appeals of Virginia,

Richmond.

Aug. 17, 2010.

Diane M. Abato (Abato & Davis, on brief), Richmond, for appellant.

Robert H. Anderson, III, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: PETTY and ALSTON, JJ., and WILLIS, Senior Judge.

OPINION

ALSTON, Judge.

Donta Termaine Smith (appellant) appeals his convictions of abduction with intent to defile, in violation of Code § 18.2-48, and attempted rape, in violation of Code §§ 18.2-26 and 18.2-61. Appellant contends the evidence is insufficient to prove he committed the offenses. Appellant further contends the trial court erred when it denied appellant's motion to strike the charge of abduction with intent to defile, arguing the evidence showed the restraint applied to the victim was merely incidental to the attempted rape. For the reasons that follow, we hold the trial court did not err, and we affirm appellant's convictions.

I. BACKGROUND

On appeal, “we review the evidence in the ‘light most favorable’ to the Commonwealth.” Pryor v. Commonwealth, 48 Va.App. 1, 4, 628 S.E.2d 47, 48 (2006) (quoting Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003)). “Viewing the record through this evidentiary prism requires us to ‘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 to be drawn therefrom.’ ” Cooper v. Commonwealth, 54 Va.App. 558, 562, 680 S.E.2d 361, 363 (2009) (quoting Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis omitted)).

So viewed, the evidence showed that the sixteen-year-old victim (M.P.) knew appellant through his girlfriend, Moesha Parker (Parker). Parker and appellant lived together. M.P frequently visited appellant's house, where Parker would style M.P.'s hair. However, M.P. never went to appellant's house unless Parker was there.

On May 9, 2008, M.P. was walking past appellant's home on her way to a friend's house when appellant yelled to M.P. from his bedroom window. Appellant told M.P. that Parker wanted to see her. M.P. entered appellant's house through the back door and looked around but did not see Parker. When M.P. asked appellant where Parker was, he responded that she was “in the room,” referring to the bedroom. When M.P. went into the bedroom, appellant followed her in and shut the door behind him. Appellant then threw M.P. on the bed and told her that he had “wanted” her for a long time. He held M.P.'s hands down with one of his hands and attempted to unbutton M.P.'s pants with the other hand. M.P. told appellant to get off her and attempted to push him off. Appellant opened M.P.'s shirt and fondled her breast. He also “put a hickey on [her] neck.” Appellant removed his penis from his pants and tried to push M.P.'s head down in an effort to force her to perform oral sex. Appellant offered to pay M.P. if she would orally sodomize him and let him orally sodomize her, which M.P. refused. According to M.P., she struggled with appellant for what “seemed like a long time.” At some point, M.P. heard a car's horn from outside, and she told appellant that it might be her friends looking for her. Appellant let her go, stating, “I ain't try to rape you. And you come back. Don't tell nobody.”

M.P. immediately went to a friend's house and told her friend what happened. She also told her mother. Officer A. Laury (Laury) responded to the incident. He first spoke with M.P.'s mother and then with M.P. According to Laury, M.P. “was breaking down in tears” and “was very emotional and upset.” Laury also observed “redness on one side of [M.P.'s] neck.” Officer B. Huddleston (Huddleston) also spoke with M.P. just after the incident and corroborated Laury's account.

At appellant's trial, both Laury and Huddleston testified that when they spoke with M.P., she told them appellant rubbed his penis on her lips and mouth. At trial, M.P. admitted that appellant never put his penis on her mouth, although she told Officers Laury and Huddleston just after the incident that appellant did. M.P. explained the discrepancy, stating, “I was scared. I didn't know how to say it. I was embarrassed.”

Appellant's twelve-year-old daughter (D.S.) also testified. D.S. stated that she was at home the day the incident occurred because she was ill. She recalled M.P. knocking on the front door and asking appellant for a cigarette. According to D.S., appellant gave M.P. a cigarette, M.P. stayed for approximately five minutes, and then M.P. left. D.S. also testified that shortly after M.P. left, M.P.'s mother came to their house and said to appellant, “You supposed to rape my daughter or something like that.” D.S. admitted that when police arrived at her house, she heard their questions to appellant and his answers before providing her account of the incident to police.

M.P. testified that she never saw D.S. while she was in appellant's house. M.P. also testified that she does not smoke and was not at appellant's house for a cigarette.

In his defense, appellant called three witnesses, including Parker, who said, among other things, they had seen M.P. smoking cigarettes before.

At the close of the Commonwealth's case-in-chief and again at the close of all the evidence, appellant moved to strike the evidence, arguing M.P.'s testimony was inherently incredible given the discrepancies between her account of the incident to police and her testimony at trial. The trial court denied the motion, noting the credibility of the witnesses is an issue for the jury.

Appellant further argued, at trial and in a motion to set aside the verdict, that the trial court should strike the charge of abduction with intent to defile because the evidence showed the restraint appellant applied to M.P. was merely incidental to the crime of attempted rape and not a separate punishable offense. According to appellant,

[M.P.] was very clear when she said[, “]I have to go, those are my friends outside.[” Appellant] let her go and asked if

she was coming back.... [T]here was no driving her out of the city, no tying her up, there was no extensive and lengthy abduction, no asportation; there was the attempted rape and then it was over.

The Commonwealth, arguing against the renewed motion to strike the evidence, noted,

[T]he only force that would be required to accomplish the rape would be for [appellant] to hold [M.P.] down. He did, in fact, use that force in the course of attempting the rape. However, he did much more than that.... [T]hreat or deception[ ] can also be used to detain someone, thereby, abducting them. He brought her, maybe he didn't take her a long distance, but he took her into a very different environment. He took her from outside during the day, where neighbors could see what was going on, to inside into the comfort of his own bedroom, where he felt like he could get away with whatever he wanted to safely.

The trial court denied appellant's motions, stating, “[T]here were facts sufficient to show that the abduction or the detention here was separate and apart from rather than incidental to the attempted rape. So for that reason the motion [to set aside the verdict] is denied.” ¹ A jury convicted appellant of both offenses.

II. ANALYSIS

A. Sufficiency of the Evidence

Appellant first contends the evidence is insufficient to support his convictions of abduction with intent to defile and attempted rape. Code § 18.2-47(B) defines abduction: “Any person who, by force, intimidation or deception, and without legal justification or excuse, seizes, takes, transports, detains or secretes another person with the intent to subject him to forced labor or services shall be deemed guilty of ‘abduction.’ ” Code § 18.2-48 classifies abduction “of any person with intent to defile such person” as a Class 2 felony. Code §§ 18.2-26 and -61 define attempted rape as an attempt to cause a complaining witness “to engage in sexual intercourse ... against the complaining witness's will, by force, threat or intimidation ... or ... through the use of the complaining witness's mental incapacity or physical helplessness.” Appellant does not challenge the sufficiency of the evidence to prove any specific element of these offenses; rather, appellant contends that M.P.'s testimony is inherently incredible.

“The credibility of the witnesses and the weight accorded the evidence are matters solely for the fact finder who has the opportunity to see and hear that evidence as it is presented.” Sandoval v. Commonwealth, 20 Va.App. 133, 138, 455 S.E.2d 730, 732 (1995) (citing Schneider v. Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735, 736-37 (1985); Carter v. Commonwealth, 223 Va. 528, 532, 290 S.E.2d 865, 867 (1982)). Where credibility issues are resolved by the jury in favor of the Commonwealth, those findings will not be disturbed on appeal unless plainly wrong. Corvin v. Commonwealth, 13 Va.App. 296, 299, 411 S.E.2d 235, 237 (1991) (citing Castaneda v. Commonwealth, 7 Va.App. 574, 584, 376 S.E.2d 82, 87 (1989) ( en banc ); Smith v. Commonwealth, 7 Va.App. 310, 314, 373 S.E.2d 340, 343 (1988)).

When the law says that it is for triers of the facts to judge the credibility of a witness, the issue is not a matter of degree. So long as a witness deposes as to facts[,] which, if true, are sufficient to maintain their verdict, then the fact that the witness' credit is impeached by contradictory statements affects only the witness' credibility; contradictory statements by a witness go not to competency but to the weight and sufficiency of the testimony. If the trier of the

facts sees fit to base the verdict upon that testimony there can be no relief in the appellate court.

Swanson v. Commonwealth, 8 Va.App. 376, 379, 382 S.E.2d 258, 259 (1989) (citing Simpson v. Commonwealth, ...