Jones v. Com., 771872

• Decision Date: 02 March 1979
• Docket Number: No. 771872,771872
• Citation: 219 Va. 983,252 S.E.2d 370
• Parties: Derrick L. JONES v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 370

252 S.E.2d 370

219 Va. 983

Derrick L. JONES v. COMMONWEALTH of Virginia.

Record No. 771872.

Supreme Court of Virginia.

March 2, 1979.

Sidney Sacks, Norfolk (Lewis, Sacks & DeLaura, Norfolk, on brief), for appellant.

Todd E. LePage, Asst. Atty. Gen. (Marshall Coleman, Atty. Gen., on brief), for appellee.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

COMPTON, Justice.

Convicted in a bench trial of rape and sodomy, Derrick L. Jones appeals from the September 1977 judgment of conviction sentencing him to confinement in the penitentiary on the former charge for twelve years, six suspended, and on the latter offense for six years, to run concurrently. The sole issue is whether the Commonwealth's evidence was sufficient to convict. The defendant presented no testimony.

On Saturday, February 26, 1977, the prosecutrix, 19 years of age, went to the 1400 Club, located in the Lambert's Point area of Norfolk. She arrived there about 11:30 p. m. in a car with the defendant's brother and the brother's "girlfriend." After having been there for over two hours, during which she danced and drank beer, the victim met defendant, whom she had not known before. The victim danced with the defendant, age 22, for awhile and about 3:30 a. m. he offered to drive her to her home. The prosecutrix consented and the two left the club in the company of a male friend of the defendant whom the victim did not know. She testified that at the time she was "feeling nice" from consumption of the beer.

The trio then entered the front seat of an automobile. The friend drove away with the victim sitting between the men. After moving a short distance from the club, the car was stopped and the men got out of the vehicle and had a discussion. The victim testified that she then "got scared" and asked the men to take her home. Upon reentry, the defendant began driving and when the car had travelled about six more "blocks", the vehicle was again stopped on a dirt road in an "open field".

The victim then jumped from the car and ran. Defendant gave chase and caught her saying: "Come on back, girl. Ain't nobody going to do nothing to you." The victim testified that when defendant "got me back to the car", he said: "Girly, going to give me some of this pussy whether you like it or not." The defendant then told her to disrobe, which she did while sitting in the front seat of the vehicle. Thereafter, defendant ordered her to move to the back seat of the car. She then stepped outside the vehicle and entered the rear. The victim testified that defendant next told her to "suck his penis" and she "asked him not to make (her) do that." She said defendant next "grabbed" her "by the neck" and said: "Girl, put your damn head down here." She complied with both orders. Thereafter, first the defendant and then his companion had intercourse with the victim in the back seat of the automobile. When asked if she did "anything" to prevent defendant "from doing these things" to her, the victim testified she was "too scared to do anything" because she was "in there by (her)self."

She stated that neither man showed her a gun or a knife and that she was not struck by either nor was she bruised. She testified that neither was "laughing" or "smiling" and that each acted "serious, very serious."

After the crimes had been committed and while the car was being driven "down the street," the victim "found a chance" and, clad only in a jacket and underpants, jumped from the automobile. A passing motorist picked her up, took her to the victim's home, and then carried the victim and her mother to the police station, arriving there about 5:00 a. m. According to a detective, who reached the station about 20 minutes later, the victim was "quite shaken up", was "right hard to talk to" and was doing "quite a bit of crying."

Relying on the general rule that force, actual or constructive, is an essential element of the crimes of non-statutory rape and sodomy by force, defendant argues that he was improperly convicted because, he says, "there was not a scintilla of evidence of any violence inflicted" upon the prosecutrix nor was there evidence of any threat of violence sufficient to overcome her will to resist. He urges that the statement: "Girly, going to give me some . . ." is the only utterance made by defendant which "could even be construed as a threat."

Arguing the absence of force, defendant says that the victim disrobed without protest. He notes that "she got completely out of the car" while nude and entered the rear seat, implying, we assume, that she could have escaped while outside the vehicle. He points out that no weapon was exhibited to the victim, that she was not struck, that she did not scream, and that she did not fight her assailants. Thus, he argues, the convictions were without credible evidence to support them. We do not agree.

To determine whether the element of force has been proved in the crimes of non-statutory rape and sodomy by force, the inquiry is whether the act or acts were effected with or without the victim's consent. See ...