Fortune v. Com.

• Decision Date: 31 March 1992
• Docket Number: No. 0140-91-2,0140-91-2
• Citation: 416 S.E.2d 25,14 Va.App. 225
• Parties: Ricky FORTUNE v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 25

416 S.E.2d 25

14 Va.App. 225

Ricky FORTUNE v. COMMONWEALTH of Virginia.

Record No. 0140-91-2.

Court of Appeals of Virginia.

March 31, 1992.

[14 Va.App. 226] James B. Gochenour, Colonial Beach, for appellant.

Michael T. Judge, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: BARROW, COLEMAN and MOON, JJ.

BARROW, Judge.

This appeal is from a conviction of attempted rape. The defendant contends that the evidence was insufficient to support a conviction of attempted rape instead of an attempt to commit sodomy. Because the defendant's conduct was consistent with preparation for sexual intercourse, the trier of fact could infer that the defendant intended to rape the victim. Therefore, we hold that the evidence was sufficient to support his conviction.

The defendant was arrested and charged with attempted aggravated sexual battery. The grand jury subsequently returned indictments of solicitation of forcible sodomy and attempted rape. The defendant was tried without a jury. At the close of the Commonwealth's evidence as to both charges, defendant's counsel moved to strike the Commonwealth's case regarding forcible sodomy. When asked if that was his only motion, defense counsel replied that at that point it was. The court granted the motion and asked defendant's counsel if he had any evidence to present on the charge of attempted rape. The defense rested without introducing evidence and closing arguments were heard. The judge found the defendant guilty of attempted rape and sentenced him to ten years imprisonment, six of which were suspended conditioned upon his good behavior.

Viewed in the light most favorable to the Commonwealth, the evidence established the following events. At 1:00 a.m., the victim was sitting alone in the kitchen located in the back portion of her home. Hearing the front door open and thinking that it might be her roommate returning, she went into the front room and discovered the defendant. The defendant pushed her back into the kitchen and requested oral sex in exchange for money. The victim refused, after which the defendant, instead of leaving, went upstairs. The victim followed him upstairs to see what he was doing. Once upstairs, she found the defendant in a bedroom with his pants down and genitals exposed. The defendant ordered the victim to lie on a bed. She refused and attempted to leave the room but the defendant grabbed her and pulled her back into the room. She broke free, attempted to leave and was again pulled back into the room.

Finally able to escape from the defendant's grasp, the victim went downstairs to seek help. As she attempted to get out the front door, the defendant again grabbed her. The two struggled. During the struggle, the defendant continued his requests for oral sex in exchange for money or drugs and touched the victim's breast. The victim again broke free of defendant's hold, after which the defendant departed, stating that he would return.

CONTEMPORANEOUS OBJECTION

The Commonwealth argues that the sufficiency of the evidence may not be the basis for a reversal because the defendant did not move to strike the evidence for that reason. Failure to raise sufficiency of the evidence in the trial court precludes defendant from raising it later on appeal. Forester v. Commonwealth, 210 Va. 764, 768, 173 S.E.2d 851, 854-55 (1970). In a trial without a jury, however, where sufficiency of the evidence is challenged in defense counsel's closing argument it may properly be preserved for appeal. Campbell v. Commonwealth, 12 Va.App. 476, 478, 405 S.E.2d 1, 2 (1991) (en banc).

It is sufficient if at the time of the court's ruling the defendant states what action he wants the court to take and the grounds for that action. Rule 5A:18; Campbell, 12 Va.App. at 478, 405 S.E.2d at 2. If a closing argument adequately advises the trial court of the defendant's position and if it is clear that the trial court considered the issue and had an opportunity to take corrective action, the contemporaneous objection rule is satisfied. Campbell, 12 Va.App. at 478, 405 S.E.2d at 2. In this case, defense counsel argued in closing argument that the Commonwealth had failed to prove its case that an attempt at either sodomy or sexual intercourse could have been inferred from the evidence, that it could not be inferred from the defendant's actions that he was attempting to have intercourse, that force was not proven, that only preparation was demonstrated, and that the Commonwealth had not shown that the defendant tried to have sexual intercourse. Defense counsel did not argue credibility of the witnesses. He asserted only that it could not be inferred from the evidence of the Commonwealth that the defendant attempted to commit sexual intercourse, instead of sodomy. The closing argument, therefore, adequately advised the trial court of the defendant's position, required the trial court to consider the legal issue presented, and gave the trial court an opportunity to take corrective action. The issue of sufficiency, therefore, may be the basis for reversal.

SUFFICIENCY OF EVIDENCE OF ATTEMPTED RAPE

Attempted rape includes the intent to engage in sexual intercourse, and some direct, yet ineffectual, act toward its consummation. Chittum v. Commonwealth, 211 Va. 12, 15, 174 S.E.2d 779, 781 (1970). Specific intent to commit rape may be inferred from conduct if such intent follows naturally from the conduct proven. Green v. Commonwealth, 223 Va. 706, 711, 292 S.E.2d 605, 608-09 (1982). Where the conduct of the accused, under conditions and circumstances described, points with reasonable certainty to a specific intent to commit rape, intent is established. Id.

Cases of attempted rape often involve conduct from which intent is easily inferred. See Green, 223 Va. at 711, 292 S.E.2d at 608 (defendant shoved the victim on a bed, covered her head with a bedspread, unzipped her dress, ripped off her bra, threw her to the floor, climbed on top of her, pulled his pants down, and then fled as someone appeared); Chittum, 211 Va. at 16, 174 S.E.2d at 780 (defendant forced the victim to drive with him to an unpaved road early in the morning, got in the front seat with her, held her by the arm, pointed a cocked pistol at her, ordered her to lie down, and then while he was unzipping his pants, she escaped); Granberry v. Commonwealth, 184 Va. 674, 676, 36 S.E.2d 547, 547 (1946) (defendant forcibly took the victim to an unoccupied lot, told her to lie down, pulled up her dress, and took off her pants).

However, in other cases intent has been less obvious. See Ingram v. Commonwealth, 192 Va. 794, 802, 66 S.E.2d 846, 847 (1951) (where the victim, alone in her house, answered a knock on the door, the defendant lunged toward her, grabbed her neck, and began choking her, the evidence was sufficient to infer intent to commit rape). In cases involving an attempt to commit a crime, the fact finder is often allowed broad latitude in determining the specific intent of the actor. See Ridley v. Commonwealth, 219 Va. 834, 837, 252 S.E.2d 313, 314 (1979).

Common to these cases is evidence of conduct consistent with preparation for sexual intercourse: shoving a victim onto a bed, telling a victim to lie down, removing or attempting to remove a victim's outer clothing or underclothing, often while the defendant is removing or loosening his own clothing. In this case, after the defendant removed his own pants he ordered the victim to lie on a bed and, later, touched her breast. The defendant's actions permitted the trier of fact to infer that he was attempting to rape the victim. The evidence was sufficient to support the conviction.

OVERT ACTS

A direct, ineffectual act, done toward commission of an offense need not be the last proximate act toward completion, but "it must go...