Snyder v. Com., 790823

• Decision Date: 29 February 1980
• Docket Number: No. 790823,790823
• Citation: 220 Va. 792,263 S.E.2d 55
• Parties: Tommy Allen SNYDER v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 55

263 S.E.2d 55

220 Va. 792

Tommy Allen SNYDER v. COMMONWEALTH of Virginia.

Record No. 790823.

Supreme Court of Virginia.

Feb. 29, 1980.

Clinton B. Corry, Jr., Richmond (Corry & Corry, Richmond, on brief), for appellant.

Linwood T. Wells, Jr., Asst. Atty. Gen. (Marshall Coleman, Atty. Gen., on brief), for appellee.

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

CARRICO, Justice.

Indicted for rape and burglary with intent to commit rape, the defendant, Tommy Allen Snyder, was tried by a jury and convicted of both charges. Sentenced in accordance with the jury's verdicts to a term of five years in the penitentiary on each charge, the defendant seeks reversal on the grounds that the evidence was insufficient to sustain the convictions and that the trial court erred in refusing two defense instructions.

The prosecutrix resided with a roommate, Brenda Wood, in the Highland Park section of Henrico County. According to the prosecutrix, her roommate drove her home from work around 9:35 p. m. on June 26, 1978. When Brenda went out for the evening, the prosecutrix closed the front door of the home but, at Brenda's request, did not lock it. The rear door was closed and locked. The windows were either closed or covered with screens.

Clad only in underpants, the prosecutrix retired about 10:00 p. m. Later, she was awakened by two telephone calls, one at midnight from a person she was not asked at trial to identify, and the other around 1:30 a. m. from an acquaintance, Bruce Powers. She agreed to Powers' request that he be permitted to "come over" later in the night.

The prosecutrix reawakened "when the light went on in the bedroom." She looked up and saw a strange man standing in the doorway. Momentarily, he sat down on the bed and asked the prosecutrix her name. She tried to move away, and he pulled from her a sheet with which she was trying to cover herself. He pushed her "flat down on the bed," whereupon she began to "scream and cry." He then put his arm across her shoulders and throat, "cutting off the wind," and told her that "if (she would) be quiet (she) wouldn't get hurt." She told him to "get out, that (she) didn't want him there," but "(e)very time (she) started to open (her) mouth he'd cover it with his other hand and tell (her) to shut up." She was "real upset" and "too scared to say anything else." When he had her "completely locked against the bed," he removed her underpants and proceeded to rape her.

After observing her assailant depart by the front door and walk away from her home, the prosecutrix returned to bed until, about 15 minutes later, she heard the sound of an automobile outside. Brenda Wood and Bruce Powers had arrived at the same time, and, when the prosecutrix recognized her friends, she ran from the house to meet them. In a hysterical condition, she reported to them that she had been raped. At Brenda's insistence, the police were called, and the prosecutrix was taken to a hospital. An examination confirmed that the prosecutrix had recently engaged in intercourse, but no bruises or lacerations were found upon her body.

Following the examination, the prosecutrix went to police headquarters. There, she assisted in the preparation of a composite drawing of her assailant and, from a photographic display, identified the defendant as her attacker. In court, her identification of the defendant was positive. Throughout her testimony, she insisted that she had never seen the defendant before the night of the alleged attack.

Testifying for the Commonwealth, Brenda Wood and Bruce Powers confirmed that, on the night in question, the prosecutrix had reported to them that she had been raped. Brenda also confirmed that she, Brenda, had insisted upon calling the police. Brenda denied, however, that she had driven the prosecutrix home on the evening in question and that she had asked the prosecutrix to leave the door to their home unlocked. Rather, Brenda stated, the prosecutrix later told her the door had been left unlocked for Bruce Powers. Brenda testified further that, approximately one month after the alleged attack, the prosecutrix told her that the defendant had not raped her. According to Brenda, the prosecutrix admitted that she had previously met the defendant and that, although she was not expecting him on the night in question, when he arrived and suggested that they have intercourse, she agreed. The prosecutrix was afraid, however, Brenda stated, that Terry McGann, to whom the prosecutrix had been engaged, would "find out about (the defendant) being over there."

Brenda Wood testified further that the prosecutrix's general reputation for chastity was "(n)ot very good." At the time Brenda testified, however, she and the prosecutrix were no longer roommates or friends, and the prosecutrix was a Commonwealth's witness in felony and misdemeanor charges then pending against Brenda.

Testifying for the defendant, Forrest Gardner stated that he had dated the prosecutrix for a brief period in the spring of 1978. He testified further that, when he broke off relations with her, he gave the defendant her name and telephone number and told him she was a "right wild girl." The prosecutrix's general reputation for chastity, Gardner testified, was "right bad."

Taking the stand in his own defense, the defendant testified that, employing the phone number Forrest Gardner had given him, he had called the prosecutrix on three occasions and made dates to see her at her home. ^* Each time, according to the defendant, the prosecutrix voluntarily had intercourse with him. On the occasion in question, he telephoned the prosecutrix around midnight, secured her agreement that he visit her, and drove to her home. After knocking on the front door, he walked in, proceeded to her bedroom, and, with her consent, had intercourse with her. Afterward, the two talked, and he told her he knew Terry McGann and had "beat him" in a fight several years earlier. Apparently fearful that McGann would learn of her relationship with the defendant, the prosecutrix became upset and began crying and calling the defendant names. Unable to calm her, the defendant departed.

On the night of the alleged attack, warrants were issued for the defendant's arrest. Aware that the warrants were outstanding, the defendant, a convicted felon, eluded arrest for approximately one and one-half months. He finally surrendered to police on August 10, 1978.

The Rape Conviction

With respect to his rape conviction, the defendant contends that the conviction must be set aside because there is insufficient evidence of force on his part and of protest or resistance on the part of the prosecutrix. The only testimony on these essential elements came from the prosecutrix herself, the defendant maintains, and her testimony is inherently incredible and so contrary to human experience or usual human behavior as to render it unworthy of belief.

We disagree with the defendant. Admittedly, to sustain a conviction of forcible rape, there must be evidence of some array or show of force sufficient to overcome resistance. But the victim is not required to resist to the utmost of her physical strength if she reasonably believes that resistance would be useless and would cause her serious bodily harm. Barnett v. Commonwealth, 216 Va. 200, 202, 217 S.E.2d 828, 829-30 (1975). And a conviction of rape may be sustained solely upon the testimony of the prosecutrix. Poindexter v. Commonwealth, 213 Va. 212, 217, 191 S.E.2d 200, 204 (1972).

A rape conviction cannot be sustained, of course, if the testimony of the prosecutrix is inherently incredible or so contrary to human experience or usual human behavior as to render it unworthy of belief. Willis & Bell v. Commonwealth, 218 Va. 560, 563, 238 S.E.2d 811, 812-13 (1977). A reading of the record in this case, however, fails to convince us that the prosecutrix's testimony suffered these fatal deficiencies.

There was nothing improbable about the prosecutrix's story. While there were conflicts in her testimony, they were not so material or so unusual that her version of the events on the night in question was rendered unbelievable as a matter of law....