Ryan v. Com., 771589

Decision Date06 October 1978
Docket NumberNo. 771589,771589
Citation247 S.E.2d 698,219 Va. 439
PartiesWilliam P. RYAN v. COMMONWEALTH of Virginia. Record
CourtVirginia Supreme Court

Richard S. McLellon, Portsmouth (Bangel, Bangel & Bangel, Portsmouth, on brief), for appellant.

Jerry P. Slonaker, 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.

COCHRAN, Justice.

In this case the first three counts of the indictment charged William P. Ryan with (1) breaking and entering the dwelling of Pamela E. V. . . . 1 in the nighttime with intent to commit rape, (2) carnally knowing Pamela E. V. . . . with his mouth, 2 and (3) attempted rape of Pamela E. V. . . ., all on October 9, 1976. The fourth count charged Ryan with breaking and entering the same dwelling on October 12, 1976, in the nighttime, with intent to commit rape and larceny. In a jury trial on the first three counts Ryan was found guilty as charged and his punishment was fixed at confinement in the State penitentiary for 10, 5, and 10 years, respectively. The trial court entered judgment on the verdict. Subsequently, another jury found Ryan guilty under the fourth count and fixed his punishment at confinement in the penitentiary for 20 years, on which verdict the trial court entered judgment.

In the first trial, Pamela E. V. . . . (Mrs. V.) testified that between 6:00 and 6:30 a. m. on October 9, 1976, she suddenly awakened to find a strange man lying beside her in bed. She saw the man face to face. It was light enough for her to see around the room. She screamed, and the intruder, whom she identified at trial as Ryan, threw her down on the bed, put his hand over her mouth, and threatened that if she screamed again an accomplice might harm her children. Mrs. V. resided in the dwelling with her four children, from two to seven years of age, while her husband was "in the Mediterranean." The youngest child, who was in bed with her, woke up and began to fret until Mrs. V., as ordered by Ryan, quieted him. Ryan then attempted numerous times without success to have sexual intercourse with Mrs. V. Upon finding himself physically incapable of accomplishing this purpose, he rubbed his penis around her vaginal area, fondled her breasts and "took his tongue and . . . started down around the vagina with his tongue", licking her vagina. The episode lasted approximately forty-five minutes, but Mrs. V. estimated that Ryan was in the house for an hour and a half or longer. Before leaving he tied Mrs. V. with some of her husband's belts, warned her not to call the police, and said that he was coming back.

With the assistance of her children, Mrs. V. managed to free herself. She promptly called the police, reported the facts, and gave them a description of her assailant. Because of Ryan's threat to return, Mrs. V. temporarily left the house with her children on October 9 to stay with friends, and returned only after Ryan's arrest on October 12.

During the trial, Ryan's counsel attempted to show, in cross-examination of Mrs. V., that she had made a civil claim against Ryan's employer, Bob Jones Realty Company, for Ryan's action, which might affect her credibility as a witness by showing bias or motivation in her role as the key prosecuting witness. Upon objection by the Commonwealth's Attorney, this evidence was ruled inadmissible. Outside the presence of the jury, it was revealed that Mrs. V. had made such a claim and that it had been settled, but the details of the settlement are not disclosed in the record.

As proof that the breaking and entering occurred in the nighttime, the Commonwealth proffered in evidence a local newspaper time and tide chart published on October 9, 1976, which showed the time of sunrise on the following day to be 7:08 a. m. When Ryan objected on grounds that this evidence violated the hearsay rule and that the chart had been prepared several hours prior to the date of the offense, the trial judge, taking "judicial notice" that he followed the newspaper's chart every day and found it "very accurate", overruled the objection.

At the conclusion of the Commonwealth's evidence, Ryan moved to strike the evidence as insufficient to prove a prima facie case. The motion was overruled, and Ryan adduced no evidence in his behalf. After the jury returned a verdict of guilty on all three counts, Ryan moved to set aside the verdict, but argued only that the "sodomy charge" required evidence of penetration and that the Commonwealth's evidence failed to establish this fact. Stating that the jury had determined that there had been penetration, the trial court overruled the motion.

Before the separate trial on the fourth count of the indictment, Ryan's motion to exclude any evidence as to the October 9th offenses was overruled. At trial, the motion was renewed and again denied.

At this second trial, Mrs. V. recounted the events which occurred on October 9, and her testimony was substantially the same as that given by her in the earlier trial. She was more specific, however, in her testimony as to Ryan's threat to return, quoting him as saying, "I'm going to come back. I can't succeed; and I'm going to come back, and I'm going to succeed". She testified that a camera which she had borrowed from a friend was lying on her dresser when she left the house on October 9. A picture of the friend's daughter was in the camera case.

Police officers testified that they were in the vicinity of Mrs. V.'s residence on October 12, 1976, at 2:00 a. m. when they observed a light in the house and a station wagon, with lights on and motor running, parked in the yard. Aware of the October 9th crimes, they stopped, approached the dwelling, and found Ryan inside. The officers, recognizing him as a suspect, arrested Ryan and advised him of his Miranda rights before asking him to explain his presence in the house. Ryan stated that he was there for the purpose of making repairs under instructions from his employer, Bob Jones Realty Company. Ryan had in his possession a key to the front door. However, he had no tools in the house, the officers saw no evidence of any repair work in progress, and Ryan was unable to show them any. The officers observed that a television set had been unplugged and pulled away from the wall. In the station wagon the officers found a camera case containing a camera and a picture of a little girl. Ryan insisted that the camera was his, but he was unable to identify the girl in the picture. The camera and picture were introduced into evidence and identified by Mrs. V. as the property of her friend.

At the conclusion of the Commonwealth's case, Ryan's motion to strike the evidence on the ground that the intent to commit rape had not been established was overruled. Ryan then adduced evidence to show that he and other workmen had been directed by Bob Jones Realty Company to make certain repairs to the residence, that his employer had given Ryan a key to the front door before the house was occupied by Mrs. V. and her children, and that he and a fellow workman went to the house twice on the night before Ryan was arrested to complete their work, but left without entering when they saw no lights in the house.

The trial court granted Instruction No. E, tendered by Ryan, which read as follows:

"The Court instructs the jury that the fact that the defendant may have committed a prior criminal offense is not proof that he is guilty of the offense here charged, and such fact shall not be considered by the jury in reaching a conclusion as to his guilt or innocence on the present charge."

After the jury had retired to consider the evidence, the jurors inquired whether they could consider the testimony of Mrs. V. "as to the attempted rape on October 9, 1976, in reaching the conclusion that the defendant is guilty of breaking and entering with intent to commit rape on October 12, 1976". The trial court replied, "Yes; you can consider her testimony today, in reaching your conclusion, as well as all the evidence". No objection to this answer is found in the record except in argument by Ryan's counsel on the motion to set aside the jury verdict finding Ryan guilty and fixing his punishment. The motion was overruled.

Ryan argues that his conviction of violating Code § 18.2-361 should be reversed because there was no evidence that his mouth penetrated Mrs. V.'s vagina. It is true, as Ryan says, that we have held that penetration is an essential element of the crime of sodomy and that evidence that a boy's mouth was merely placed on a man's genitals was insufficient to show penetration. Ashby v. Commonwealth, 208 Va. 443, 444, 158 S.E.2d 657, 658 (1968), Cert. denied, 393 U.S. 1111, 89 S.Ct. 884, 21 L.Ed.2d 808 (1969). However, it is also true that the issue of penetration is a question for the...

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