Poole v. Commonwealth

Decision Date20 July 2021
Docket NumberRecord No. 1177-20-1
Citation73 Va.App. 357,860 S.E.2d 391
CourtVirginia Court of Appeals
Parties Kelly Lamont POOLE v. COMMONWEALTH of Virginia

Charles E. Haden, Hampton (Nikeva S. Bailey, on brief), for appellant.

Timothy J. Huffstutter, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Huff, Malveaux and Senior Judge Annunziata


Kelly Lamont Poole ("appellant") was convicted of rape, in violation of Code § 18.2-61. On appeal, he challenges the sufficiency of the evidence supporting his conviction. Appellant contends that the evidence failed to prove beyond a reasonable doubt that the sexual activity at issue was nonconsensual. He also argues that due to existing case precedent, the Commonwealth was required to prove additional elements of rape because the victim was his spouse. For the following reasons, we affirm.


"In accordance with familiar principles of appellate review, the facts will be stated in the light most favorable to the Commonwealth, the prevailing party at trial." Gerald v. Commonwealth, 295 Va. 469, 472, 813 S.E.2d 722 (2018) (quoting Scott v. Commonwealth, 292 Va. 380, 381, 789 S.E.2d 608 (2016) ).

At the time of trial, T.T.1 and appellant had been married for six years and had two children together. T.T. described the marriage as "[v]ery rocky. Lots of infidelity. Lots of pain." The couple discussed separating "on and off all the time for the whole marriage."

In April 2018, the couple lived together in a two-bedroom apartment. The children shared one bedroom while appellant and T.T. shared the other. T.T. testified that the couple "slept in the same bed but [had] separate blankets with a pillow between the two of us."

T.T. testified that on the evening of April 19, 2018, appellant "asked me or ... suggested that we ha[ve] intercourse." T.T. told appellant no and went to sleep. T.T. testified that she was not wearing clothes that night because she did not sleep in clothes as they made her feel restricted. During the night, T.T. woke to find appellant "on top of [her]." T.T. asked appellant to stop and shoved him. Appellant "had his arm ... pushing [her] neck up and forcing [her] legs over and putting all his weight as [T.T.] was trying to move around and get out from underneath him." To get appellant to stop, T.T. tried to put her legs up, "kneeing him as much as [she] could" and "pushing with [her] arms trying to twist away." Appellant "counteracted" every move T.T. made. T.T. could not remove herself from underneath appellant, and "he just kept going." T.T. "asked him to stop, and he told [her] no." T.T. asked appellant to stop at least ten times. Appellant "kept just telling [T.T.] that he was going to, and it was [her] fault, and that he can have it, it's his, he can take it." While appellant was on top of T.T., he put his penis in her vagina. Appellant remained on top of T.T. for about twenty minutes. Afterwards, T.T.’s neck and arms were sore, and she had some bruising on her legs for a couple of days.

T.T. testified that prior to that evening, she had last had sex with appellant on April 6, 2018.

After the sexual encounter, T.T. went back to sleep and appellant laid down on his side of their bed. In the morning, T.T. went to work because she had already missed too many days of work and could not risk being fired. During the day, T.T. messaged appellant asking why he had "do[ne] that to [her]," and appellant did not "direct[ly]" respond to that question. Immediately after work, T.T. went to the police and reported what had happened. She then went to the hospital and was examined by a sexual assault nurse examiner ("SANE nurse"). The Commonwealth introduced photos of T.T. taken at the hospital that showed bruising on her leg.

Claire Sampson, the SANE nurse who examined T.T. at the hospital, noted a perianal abrasion which she described as "superficial." Sampson recalled that T.T. complained of vaginal and rectal discomfort and pain. Sampson testified that the perianal injury was not likely a result of digital penetration, was not a result of a bowel movement, and that T.T. did not report any consensual anal intercourse or use of sex toys. Sampson did not note any vaginal injuries. She further testified that there did not have to be an injury for sex to have been nonconsensual.

Analysis of a DNA sample collected from T.T. by Sampson indicated that appellant's semen was present in T.T.’s vagina.

Detective D.B. O'Connor of the Norfolk Police Division spoke with T.T. at the police station and recalled that she was "upset." He then spoke to appellant and asked him about T.T.’s allegation. Appellant initially stated that he and T.T. had not had intercourse for about a month. After O'Connor informed appellant that DNA evidence had been collected from T.T. at the hospital, appellant admitted that they had had sex on the night of April 19, 2018. Appellant told the detective that T.T. "wasn't really into it," but that when he agreed to give her a Percocet pill, she consented. Another officer examined appellant and found a small scratch on his shoulder. Appellant claimed he had scratched himself. The officer noted that appellant's fingernails were very short.

Following the Commonwealth's evidence, appellant moved to strike, arguing that the evidence was insufficient to establish that he had raped T.T. The court denied the motion.2

Appellant, testifying on his own behalf, denied having raped T.T. and claimed that the intercourse had been consensual. He stated that on the night of April 19, 2018, T.T. had asked for a Percocet pill for back pain, and he had refused to give it to her. Appellant testified that T.T. had initiated the sexual contact, had "put [him] on top," and had "put [his] penis inside her." Appellant stated that T.T. had "never said no," but acknowledged that "in the beginning, she wasn't into it." He also stated that T.T.’s communications with him during the day on April 20, 2018, had been normal, and she had not asked why he had raped her. He admitted that, on April 21, 2018, he had said in messages to T.T., "Whatever I did, I'm sorry. I knew something was up." He asserted that in 2011 T.T. had told him that she had been raped by a previous boyfriend, but that she had later stated that this allegation was false.

In closing argument, appellant again argued that the evidence was insufficient to prove the offense. The trial court found appellant guilty of rape, noting that it found appellant's "version of what happened incredible" and T.T.’s "version credible."

Following trial, appellant filed a motion to reconsider. Citing Weishaupt v. Commonwealth, 227 Va. 389, 315 S.E.2d 847 (1984), and Kizer v. Commonwealth, 228 Va. 256, 321 S.E.2d 291 (1984), he argued that to be convicted of rape of a spouse, the Commonwealth must prove that the victim's conduct demonstrated a de facto termination of the marriage. The trial court held a hearing on the motion for reconsideration in which it denied the motion.

This appeal followed.


Appellant challenges the sufficiency of the evidence supporting his conviction for rape. "In reviewing a challenge to the sufficiency of the evidence, we affirm the trial court's judgment ‘unless it appears from the evidence that the judgment is plainly wrong or without evidence to support it.’ " Alvarez Saucedo v. Commonwealth, 71 Va. App. 31, 47, 833 S.E.2d 900 (2019) (quoting Horton v. Commonwealth, 255 Va. 606, 608, 499 S.E.2d 258 (1998) ). "In conducting our review, we do not substitute our own judgment for that of the factfinder."

Bondi v. Commonwealth, 70 Va. App. 79, 87, 824 S.E.2d 512 (2019). Instead, this Court "must ... ask whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ " Crowder v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d 384 (2003) (quoting Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444 (2003) (en banc )). In addition, "[w]e view the evidence in the light most favorable to the Commonwealth as the prevailing party at trial." Alvarez Saucedo, 71 Va. App. at 47, 833 S.E.2d 900.

However, when "a sufficiency challenge ultimately ‘presents the question whether the facts proved, and the legitimate inferences drawn from them, fall within the language of a statute, we must construe statutory language to answer the question. That function presents a pure question of law which we consider de novo on appeal.’ " Blackwell v. Commonwealth, 73 Va. App. 30, 44, 854 S.E.2d 191 (2021) (quoting Hannon v. Commonwealth, 68 Va. App. 87, 92, 803 S.E.2d 355 (2017) ).

Code § 18.2-61(A) provides, in pertinent part, that "[i]f any person has sexual intercourse with a complaining witness, whether or not his or her spouse ... and such act is accomplished ... against the complaining witness's will, by force, threat or intimidation ... he or she shall be guilty of rape."

Although not included in the statutory language of Code § 18.2-61(A), appellant asserts that in this case, existing precedent required the Commonwealth to prove additional elements to convict him of rape in this case because the victim was his spouse. Appellant relies on Weishaupt and Kizer as the case law supporting his argument. In Weishaupt, after examining English common law principles of marital rape, the Virginia Supreme Court noted that at common law, marriage included an implied consent to sexual intercourse, but that such consent could be revoked. 227 Va. at 399, 315 S.E.2d 847. However, "[t]he English courts refused to accept a unilateral revocation of consent to marital sex by the wife even if that revocation was manifested by the wife's moving out and filing for divorce."

Id. In deciding the facts of Weishaupt, the Court refused to apply this requirement, based on the principle that common law "doctrines and principles as are repugnant to the nature and character of our political system, or which the different and...

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