Howard v. Com.

• Decision Date: 06 March 1981
• Docket Number: No. 800413,800413
• Citation: 221 Va. 904,275 S.E.2d 602
• Court: Virginia Supreme Court
• Parties: Larry D. HOWARD v. COMMONWEALTH of Virginia. Record

Page 602

275 S.E.2d 602

221 Va. 904

Larry D. HOWARD v. COMMONWEALTH of Virginia.

Record No. 800413.

Supreme Court of Virginia.

March 6, 1981.

Paul B. Kerr, III, Newport News (Short, Short, Telstad & Kerr, P. C., Newport News, on brief), for appellant.

Robert E. Bradenham, II, Asst. Atty. Gen. (Marshall Coleman, Atty. Gen., on brief), for appellee.

Before CARRICO, C. J., HARRISON, COCHRAN, POFF, COMPTON and THOMPSON, JJ., and HARMAN, Senior Justice.

COCHRAN, Justice.

Tried by the court without a jury on an indictment charging him with attempted sodomy, Larry D. Howard was convicted of taking indecent liberties with a child in violation of Code § 18.2-370 and sentenced to serve three years in the State penitentiary. On appeal, he contends that the trial court erred in overruling his motion to quash the indictment for failure to allege an offense, and in convicting him of a crime which, he insists, is not a lesser offense included under the indictment charging attempted sodomy.

The indictment, citing Code §§ 18.2-26 and 18.2-361, charged that Howard on or about June 27, 1979, "feloniously and by force did attempt to carnally know G... T..., thirteen years of age, by the anus". Code § 18.2-361 provides that "(i)f any person shall by force carnally know any male or female person by the anus or by or with the mouth he or she shall be guilty of a Class 3 felony". Code § 18.2-26 classifies for purposes of punishment attempts to commit noncapital felonies.

Prior to trial, Howard moved to quash the indictment. Relying on Cunningham v. Commonwealth, 88 Va. 37, 13 S.E. 309 (1891), he argued, as he did on appeal, that the indictment was invalid because it failed to allege an overt, ineffectual act in the attempt to commit sodomy. There is no merit in this argument. Cunningham, an attempted rape case, held that it was necessary for the indictment to charge an act done towards the commission of the offense. Id. at 39, 13 S.E. at 310. However, this holding was based upon the wording of Section 3888 of the 1887 Code, which provided specified punishment for a person "who attempts to commit an offense, and in such attempt does any act towards its commission ". (Emphasis added). The present statutes contain no such language. See, e. g., Code §§ 18.2-25 and 18.2-26.

To sustain a conviction of an attempted crime, the evidence must establish a specific intent to commit the crime and an overt but ineffectual act committed in furtherance of the criminal purpose. Nobles v. Commonwealth, 218 Va. 548, 551, 238 S.E.2d 808, 810 (1977). But it is no longer necessary to include in the indictment an allegation of every fact in the chain of circumstances comprising the offense charged. See Ward v. Commonwealth, 205 Va. 564, 568, 138 S.E.2d 293, 296 (1964). In the present case, the indictment did not merely charge "attempted sodomy" but paralleled the language of the relevant substantive statute and followed the illustrative short-form indictment for an attempted felony included in Form 5 of the Appendix of Forms contained in Part Three A of the Rules of Court. There was no suggestion that Howard did not understand the nature of the charge against him. As the indictment named the accused, described the offense charged and cited the applicable statutes, identified the city in which the offense was committed, and recited that Howard committed the offense on or about a certain date, it met the requirements of Code § 19.2-220 and Rule 3A:7(a). Cf. Wilder v. Commonwealth, 217 Va. 145, 225 S.E.2d 411 (1976), where the language used in the indictment failed to charge an offense.

At trial, the chief witness for the Commonwealth was the thirteen-year-old child named in the indictment as the victim. She testified that on June 27, 1979, she was visiting a cousin in Newport News. That afternoon, while she was in the hall of the apartment house where her cousin lived, Howard, who was another cousin of hers, pulled down the top of her sundress and touched her breast. When she "hollered", Howard put his hand over her mouth. She resisted. He then turned her around, held her facing the wall, pulled her dress up and her underpants down, pulled his pants "halfway" down and unzipped them, placed his penis against her buttocks and tried to put it in her "behind". She turned sideways and Howard released her.

At the conclusion of the presentation of evidence by the Commonwealth, the trial court sua sponte ruled that the evidence was insufficient to prove attempted sodomy and reduced the charge to taking indecent liberties with a child in violation of § 18.2-370. Howard objected to this action of the trial court, arguing that violation of that statute is not a lesser-included offense of attempted sodomy. After the court overruled his motion to strike the Commonwealth's evidence, Howard testified in his own defense and denied the child's allegations.

Code § 18.2-370 provides in part:

Any person eighteen years of age or over, who, with lascivious intent, shall knowingly and intentionally:

(1) Expose his ... sexual or genital parts to any child under the age of fourteen years ...; or

(2) In any manner fondle or feel, or attempt to fondle or feel, the sexual or genital part of any such child, or the breast of any such female child; ... shall be guilty of a Class 6 felony.

Howard argued for the first time on appeal that lascivious intent is not an element of the offense of attempted sodomy and that "taking indecent liberties" therefore is not a lesser-included offense of that crime. He relied upon Ashby v. Commonwealth, 208 Va. 443, 158 S.E.2d 657 (1968), cert. denied, 393 U.S. 1111, 89 S.Ct. 884, 21 L.Ed.2d 808 (1969), in which we held that indecent exposure with lascivious intent was not a lesser-included offense of sodomy. The Commonwealth, while arguing that this contention was not presented in the trial court and should now be barred by Rule 5:21, also maintained that the requirement of lascivious intent is implicit in the words "carnally know" in the definition of sodomy in § 18.2-361. We find it unnecessary to decide either the procedural or the substantive question.

The trial court's ruling that the evidence was insufficient to prove attempted sodomy constituted an acquittal of Howard on that charge. However, the court expressed...