Sutton v. Com., s. 831787

• Citation: 324 S.E.2d 665,228 Va. 654
• Decision Date: 18 January 1985
• Docket Number: 831788,Nos. 831787,s. 831787
• Court: Supreme Court of Virginia
• Parties: Raymond Lee SUTTON v. COMMONWEALTH of Virginia. Virginia Gray SUTTON v. COMMONWEALTH of Virginia. Record

Page 665

324 S.E.2d 665

228 Va. 654

Raymond Lee SUTTON v. COMMONWEALTH of Virginia.

Virginia Gray SUTTON v. COMMONWEALTH of Virginia.

Record Nos. 831787, 831788.

Supreme Court of Virginia.

Jan. 18, 1985.

Alvin B. Fox, Newport News (Fox, Wittan & Reiss, P.C., Newport News, on brief), for appellant in No. 831787.

Robert Q. Harris, Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen., on brief), for appellee in both cases.

G. Mark Ailsworth, Newport News (Mulkey & Ailsworth, Newport News, on brief), for appellant in No. 831788.

Present: All the Justices.

COCHRAN, Justice.

In a joint trial, the trial court, sitting without a jury, convicted Raymond Lee Sutton and Virginia Gray Sutton, his wife, of the rape of Virginia's 15-year-old niece on July 23, 1982. Virginia was convicted as a principal in the second degree. The court sentenced each to confinement in the penitentiary for 30 years. In separate appeals, consolidated for argument, each contends that the evidence is not sufficient to sustain the conviction.

The prosecutrix, Beverly __________, complained to the authorities in February of 1983. Raymond gave a signed statement admitting that he and Beverly had a sexual relationship after she came to live with him and his wife in 1982 and that he had sexual intercourse with Beverly more than once. The statement was introduced in evidence as an exhibit at trial. We will review the evidence, of course, in the light most favorable to the Commonwealth.

Beverly lived with her parents in North Carolina until they were divorced when she was seven. For the next five years she lived with her mother in Fayetteville. When she was ten, she was raped by a male friend of her mother. She began to drink alcoholic beverages and use drugs. Her mother, no longer able to control her, sent Beverly to live with her father in another location in North Carolina when she was twelve. Describing life with her father as "horrible," Beverly said that he beat her "all the time." Beverly, who has had a hearing problem throughout her life, wears a hearing aid and reads lips.

While she was growing up, Beverly often saw her mother's sister, Virginia, and Virginia's husband, Raymond. Beverly corresponded with Virginia during the period 1979-1981 when the Suttons were living in Germany. Raymond, age 44, was an Army sergeant with 12 years of service at the time of trial. The Suttons were aware of Beverly's use of alcohol and drugs; they knew that her father beat her. Beverly testified that she had not used drugs for four years before the trial, except for the use of marijuana on one occasion.

Beverly visited the Suttons for two weeks in December of 1981. During this visit, Virginia told her that before the Suttons went to Germany, Raymond had sexual intercourse with Beverly's sister who was then living with them. Virginia further stated that it would be good for Beverly to have sexual intercourse with Raymond. Virginia, believing that Beverly thought that all men would beat her because her father did so, suggested that she could overcome her fear by going to bed with Raymond. On each of the two occasions that Virginia brought up the subject, Beverly rejected the suggestion.

About two or three in the morning on Christmas Day, 1981, Raymond and Beverly returned home in his van from his landlady's residence. Parking in the driveway, Raymond began kissing and fondling Beverly and even "got [her] down" on the floor of the vehicle. Beverly begged Raymond to leave her alone, and he finally released her. Beverly said she was scared at the time and was also afraid to tell her father what had happened. The next day Raymond informed Virginia of the incident; Virginia advised Beverly that she should have submitted to Raymond, that it would have helped her.

During the December visit, the Suttons talked to Beverly about getting her away from her father because of his mistreatment of her. In May, after her father had administered another beating, Beverly called the Suttons to report the intolerable situation. In July, after the school session was over, the Suttons brought Beverly from her father's home in North Carolina to theirs in Newport News. For a week, her older sister also stayed with the Suttons. After her sister left, Raymond tried to get Beverly to go to bed with him. When she refused, he became angry. Subsequently, Raymond and Beverly agreed that, in order to get school clothes and anything she needed, she would have sexual intercourse with him. Her choice was to agree or to return to her father, who would beat her. She did not know where her mother was at that time.

The Suttons and Beverly spent a July weekend in North Carolina. Upon their return on July 18, Raymond again attempted to have sexual intercourse with Beverly; she "begged and begged" until he abandoned the effort. Raymond again became angry. The next day, Virginia charged Beverly with thinking she was "too good to go to bed with" her uncle and warned that if she were not "any better than that," Virginia would take her back to North Carolina. Virginia said that it was Beverly's fault that Raymond was "hurting."

Beverly had observed violence in the Suttons' home. She saw Virginia and Raymond hit each other during arguments. She once saw Raymond strike his stepson in the face, causing him to bleed. Beverly believed the Suttons when they said that since they had custody of her, they could punish her for anything she did of which they disapproved.

On July 22, the Suttons took Beverly to get birth control pills for which the Suttons paid. The next night, Beverly went to bed early. Raymond came into her bedroom, waked her, began to talk, and fondled her breasts and vaginal area. She repeatedly begged him to leave her alone, but he would not do so. His voice rose as he became angry. She was frightened when he began to fondle her again. She testified, "I was so scared, I didn't push him away, and I didn't say anything except to please stop." She was afraid that either the Suttons would send her back to North Carolina or Raymond might become so angry that he would beat her. She could not fight him off, she was too scared to move. Raymond forced himself on her. She thought he was "mad" at her and was afraid that he would hit her, so they had sexual intercourse. Their earlier agreement to have sexual relations "never crossed" her mind. She recorded in her diary that she and Raymond "made love" on July 23.

After this first incident, Raymond and Beverly had sexual intercourse a number of times. Beverly said she was afraid not to comply. Virginia expressed the desire to see her husband have intercourse with her niece; accordingly, on two occasions, all three were in the same bed when the act occurred. ¹

Several months later, Raymond asked Beverly to try to get her friend Teresa to go to bed with him. Beverly then revealed to Teresa and Beth, another friend, what had transpired between Raymond and herself. Teresa testified that Beverly was upset, that she said she had been abused but was afraid to tell anyone about it. With the encouragement of Teresa, Teresa's mother, and Beth, Beverly went to the school guidance counselor and to the police and made a full report.

Raymond, testifying in his own behalf, acknowledged that he and his wife believed Beverly when she told them that her father beat her and she was afraid of him. When Raymond first asked Beverly to have sexual relations with him in July she refused. He asked her again "to see whether she had changed her mind." Raymond, conceding that he wanted to have sex with her, said he agreed that he would make sure she would not have to return to her father if she submitted. He admitted that he first had sexual intercourse with her on July 23. Raymond denied ever threatening, assaulting, coercing, or intimidating Beverly. He admitted that he gave her the money to buy birth control pills. He also admitted that he had discussed with Virginia more than once his desire to have sex with Beverly and that on two occasions Virginia was on the bed with him when he was having sexual intercourse with Beverly.

1. Raymond Lee Sutton.

Prior to its amendment in 1981, Code § 18.2-61 (Repl.Vol.1975) provided punishment for any person who shall "carnally know a female of thirteen years of age or more against her will, by force."

Code § 18.2-61 (Repl.Vol.1982), as amended (Acts 1981, c. 397), provides in pertinent part as follows:

If any person has sexual intercourse with a female or causes a female to engage in sexual intercourse with any person and such act is accomplished (i) against her will, by force, threat or intimidation ..., he or she shall, in the discretion of the court or jury, be punished with confinement in the penitentiary for life or for any term not less than five years.

In substituting the words "sexual intercourse" for "carnally know" the General Assembly made no change in meaning. See Strawderman v. Commonwealth, 200 Va. 855, 858, 108 S.E.2d 376, 379 (1959). But the definition of rape was significantly enlarged. Under the statute prior to amendment, it was necessary to prove sexual intercourse against the victim's will "by force." See Snyder v. Commonwealth, 220 Va. 792, 796, 263 S.E.2d 55, 57 (1980); Jones v. Commonwealth, 219 Va. 983, 986, 252 S.E.2d 370, 372 (1979). Under the amended statute it is sufficient to prove sexual intercourse against the victim's will "by force, threat or intimidation."

The trial judge, sitting as the trier of fact, based the convictions on a finding of intimidation. At the conclusion of the trial, he announced his ruling from the bench. After noting how positively Beverly had testified, both on direct examination and cross-examination, the judge made this statement:

I disagree with defense counsel that there isn't sufficient evidence of intimidation. Certainly, the whole thing reeks with intimidation when the husband and wife in this case knew of the difficulties this child had had over the...