Quincy Jones Walker, s/k/a Quincy James Walker v. Commonwealth ( 2005 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Kelsey and Haley
Argued at Chesapeake, Virginia
QUINCY JONES WALKER, S/K/A
QUINCY JAMES WALKER
MEMORANDUM OPINION* BY
v. Record No. 1456-04-1 JUDGE ROBERT P. FRANK
OCTOBER 25, 2005
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Frederick H. Creekmore, Judge
Nathan A. Chapman (William B. Parkhurst; Law Office of
William B. Parkhurst, P.C., on brief), for appellant.
John H. McLees, Senior Assistant Attorney General (Judith Williams
Jagdmann, Attorney General; Paul C. Galanides, Assistant Attorney
General, on brief), for appellee.
Quincy J. Walker, appellant, was convicted, in a bench trial, of marital rape, in violation of
Code § 18.2-61(B), and attempted marital sexual assault in violation of Code § 18.2-67.2:1. On
appeal, he contends the trial court erred in (1) finding the evidence sufficient to show that appellant
and his wife lived separate and apart as required for a conviction for marital rape, (2) finding that
appellant and his wife lived together as required for a conviction of marital sexual assault, and
(3) finding that his wife revoked her implied consent to have marital intercourse. For the reasons
stated, we affirm.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
BACKGROUND
It is well settled that “[o]n appeal, we review the evidence in the light most favorable to
the party prevailing below, together with all reasonable inferences that may be drawn.” Benton
v. Commonwealth, 40 Va. App. 136, 139, 578 S.E.2d 74, 75 (2003).
So viewed, the evidence establishes that the Walkers were married in 1995 and have five
children. At some point during the marriage, Mrs. Walker, a Lieutenant Junior Grade in the
United States Navy, moved to Rhode Island to attend school. While in Rhode Island, appellant
would occasionally visit Mrs. Walker and their children. Upon returning to Virginia in 2001,
Mrs. Walker initially lived on base, and then moved into an apartment in Chesapeake with just
her children. She testified at trial that appellant was living in Virginia Beach and that she and
appellant were “separated” at that time. Mrs. Walker testified that she assumed sole
responsibility for rent, utility bills, and food. Appellant did not have a key to her apartment.
Although appellant would occasionally go to church with Mrs. Walker, and they would exchange
Mother’s and Father’s Day gifts with each other, Mrs. Walker allowed these activities solely for
the sake of their children.
Appellant opposed the separation and repeatedly attempted to reconcile with Mrs.
Walker. Mrs. Walker testified that “every time he came over” he would try to repair the
marriage. During October and November of 2001, they engaged in sexual relations on an
occasional basis. Mrs. Walker lost twins in December 2001 and became very distraught.
Although the couple continued to engage in sexual activity between January 2002 and March
2002, Mrs. Walker testified that it was always without her consent. She allowed appellant to
stay overnight from time to time because of the children. During this time period, the Walkers
discussed having another child, and Mrs. Walker became pregnant again after forced intercourse.
-2-
In the spring of 2002 she informed appellant that she did not want him sleeping at her home
anymore.
Mrs. Walker testified that in the early morning of June 15, 2002, appellant woke her by
ringing the doorbell at her apartment in Chesapeake. She had been asleep on the couch and
answered the door wearing her pajamas. Appellant had just left work and stated that he had
come by to see the children. He and Mrs. Walker sat on the couch and he immediately began
trying to kiss her, telling her he wanted a reconciliation. She told him to stop, yet he continued
to kiss her. He then grabbed her and “held [her] arms down and forced [her] to have sex.” She
testified that despite her telling him to “stop” and to “get off of me,” appellant pulled down her
pants, held down her arms, and forced her to have intercourse. He left the apartment later in the
morning after feeding the children breakfast. Mrs. Walker did not notify the police.
Mrs. Walker testified that on June 26, 2002, appellant stopped by her apartment asking to
borrow the lawn mower. Her children were eating dinner, and Mrs. Walker was ironing a skirt in
preparation for church. She was wearing a top and a robe. She told appellant he could not
borrow the mower, so he went inside to talk with the children. After she went into the bathroom
to finish ironing, appellant came in, pushed her back into the bedroom, then back into the
bathroom. He tried to close the door while taking down his pants. Mrs. Walker told him to
“Stop. Stop.” He pinned Mrs. Walker against the wall, pulled her panties down to her thighs,
and put his penis on her vagina. Mrs. Walker yelled again for him to stop. The children ran to
the bathroom in response, and appellant stopped. Mrs. Walker reported both incidents to the
police the following day.
-3-
ANALYSIS
MARITAL RAPE
Appellant first contends the evidence is insufficient to support his rape conviction
because “the Walkers did not live separate and apart as required by statute.”1 He argues that
Code § 18.2-61(B) requires “some ongoing, express, protracted, unequivocal demonstration or
behavior which would clearly indicate to the other spouse that this one spouse, does not want to
be involved with the other.” The Commonwealth responds that appellant misinterprets the
meaning of the language “separate and apart.”
We agree with appellant that in order to convict an accused of marital rape pursuant to
Code § 18.2-61(B), the Commonwealth must show that at the time of the offense the couple was
living “separate and apart.” However, we disagree with appellant’s application of the law in this
case. Here, the evidence sufficiently proved that appellant was living separate and apart from his
wife and we affirm the conviction.
Appellant cites Weishaupt v. Commonwealth, 227 Va. 389, 315 S.E.2d 847 (1984), in
support of his argument. Weishaupt holds that a wife can unilaterally revoke her implied consent
to marital sex where she has (1) made manifest her intent to terminate the marital relationship by
living separate and apart from her husband; (2) refrained from voluntary sexual intercourse with
her husband; and (3) in light of all the circumstances, conducted herself in a manner that
1
Code § 18.2-61(B) in effect at the time provided:
If any person has sexual intercourse with his or her spouse and
such act is accomplished against the spouse’s will by force, threat
or intimidation of or against the spouse or another, he or she shall
be guilty of rape.
However, no person shall be found guilty under this subsection
unless, at the time of the alleged offense, (i) the spouses were
living separate and apart, or (ii) the defendant caused bodily injury
to the spouse by the use of force or violence.
-4-
establishes a de facto end to the marriage. Id. at 405, 315 S.E.2d at 855; see also Kizer v.
Commonwealth, 228 Va. 256, 261-62, 321 S.E.2d 291, 294 (1984) (“[W]e cannot say that
[wife’s] subjective intent was manifested objectively to the husband, in view of the wife’s
vacillating conduct, so that he perceived, or reasonably should have perceived, that the marriage
actually was ended.”).
In Kizer, the Supreme Court reversed appellant’s rape conviction. The evidence there
showed that while the couple physically lived in separate places, the wife was considering a
reconciliation that prevented a finding that she had expressed her subjective intent to end the
marriage. Accordingly, the Supreme Court reversed the conviction because the wife had not
“conducted herself in a manner that established an actual end to the marriage.” Kizer, 228 Va. at
261, 321 S.E.2d at 294.
Appellant’s reliance on Weishaupt and Kizer is misplaced. Subsequent to the Supreme
Court’s decisions in those cases, the General Assembly amended Code § 18.2-61(B) in 1986 to
create marital rape as a separate offense. The statute provides only that the intercourse be
against the spouse’s will while living “separate and apart.” The statute does not define “separate
and apart,” nor does it require proof of the spouse’s subjective intent to end the marital
relationship. The statute merely criminalizes unwanted intercourse between spouses who are not
living together. Because the Weishaupt and Kizer element of intent is omitted from the statute,
we need not determine whether Mrs. Walker’s behavior led appellant to believe that the marital
relationship was ongoing. Instead, we only decide whether the evidence supports a finding that
appellant and Mrs. Walker lived “separate and apart” as contemplated by the statute.
When considering the sufficiency of the evidence on appeal, we view the evidence in the
light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible
therefrom. See Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
-5-
“In so doing we must ‘discard the evidence of the accused in conflict with that of the
Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all
fair inferences that may be drawn therefrom.’” Norman v. Commonwealth, 2 Va. App. 518, 520,
346 S.E.2d 44, 45 (1986) (quoting Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759
(1980)). The trial court’s judgment will not be set aside unless plainly wrong or without evidence to
support it. Josephs v. Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) (en banc).
Additionally:
The credibility of a witness and the inferences to be drawn from
proven facts are matters solely for the fact finder’s determination.
In its role of judging witness credibility, the fact finder is entitled
to disbelieve the self-serving testimony of the accused and to
conclude that the accused is lying to conceal his guilt.
Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998) (citation
omitted).
So viewed, the evidence here clearly establishes that appellant and his wife lived separate
and apart. Appellant had a home in Virginia Beach, and Mrs. Walker lived in Chesapeake.
Appellant did not have a key to her apartment, nor did he contribute financially to her household.
She did not pay any of the bills at his house. She testified they were “separated.” Moreover,
appellant’s counsel conceded in argument before the trial court that “the clear, uncontroverted
testimony of Ms. [] Walker is that they were not living together. They were living separate and
apart.”2
2
While stipulating that the parties lived “separate and apart,” counsel argued only that
the Weishaupt holding prevents a finding of guilt for marital rape because Mrs. Walker did not
conduct herself in a manner that established an actual end to the marriage. As previously
discussed, Mrs. Walker’s intent is irrelevant to a discussion of marital rape and Code
§ 18.2-61(B).
-6-
However, appellant argues that the facts here do not meet the “one-year period of
separation” as required to obtain a divorce in the Commonwealth of Virginia.3 We note that the
requirements for divorce include living “separate and apart without cohabitation,” (emphasis
added), whereas Code § 18.2-61(B) requires only that the spouses live “separate and apart.”
“‘Where the legislature has used words of a plain and definite import the courts cannot
put upon them a construction which amounts to holding the legislature did not mean what it has
actually expressed.’” Barr v. Town & Country Props., 240 Va. 292, 295, 396 S.E.2d 672, 674
(1990) (quoting Watkins v. Hall, 161 Va. 924, 930, 172 S.E. 445, 447 (1934)).
We find no merit to appellant’s argument. The language of Code § 18.2-61(B) is clear
that the legislature did not intend for “separate and apart” to include the requirement that the
parties refrain from any cohabitation, or that the period of separation be without interruption.
Had the legislature intended such an interpretation, it would have included such language in the
marital rape statute.
We therefore affirm this conviction.4
3
Code § 20-91(A) provides the following grounds for divorce from the bond of
matrimony:
(9) (a) On the application of either party if and when the husband
and wife have lived separate and apart without any cohabitation
and without interruption for one year. In any case where the
parties have entered into a separation agreement and there are no
minor children either born of the parties, born of either party and
adopted by the other or adopted by both parties, a divorce may be
decreed on application if and when the husband and wife have
lived separately and apart without cohabitation and without
interruption for six months.
4
We note that appellant does not challenge that he had intercourse with his wife against
her will.
-7-
MARITAL SEXUAL ASSAULT
Appellant next challenges the trial court’s ruling that a conviction for marital sexual
assault does not require a showing that the parties are living together. Citing Morse v.
Commonwealth, 17 Va. App. 627, 440 S.E.2d 145 (1994), appellant argues that because he and
his wife were separated, he cannot be convicted of marital sexual assault.
At the time of the offense in 2002, Code § 18.2-67.2:1 stated:
A. An accused shall be guilty of marital sexual assault if (i) he or
she engages in sexual intercourse . . . with his or her spouse . . .
and (ii) such act is accomplished against the spouse’s will by force
or a present threat of force or intimidation of or against the spouse
or another person.
In Morse, the evidence was uncontested that the couple lived together as husband and
wife. Morse, 17 Va. App. at 633, 440 S.E.2d at 149. Mrs. Morse testified that she initially
refused her husband’s demand for intercourse. This Court found that the evidence was sufficient
to prove that Mrs. Morse ultimately submitted to her husband’s demand after he made a “present
threat of force.” Id. at 635, 440 S.E.2d at 150. However, the statute at that time did not
criminalize intercourse by “intimidation” and the issue in Morse was whether the defendant was
entitled to a jury instruction that distinguished “intimidation” from “threat of force.” The Court,
in agreeing with Morse, wrote, “we conclude that the legislature intended to limit the
applicability of Code § 18.2-67.2:1 to those instances in which sexual intercourse between
spouses living together is accomplished against one spouse’s will by force or threat of force and
does not include such acts accomplished by intimidation (or consent).” Id. at 633-34, 440 S.E.2d
at 149 (emphasis added).
The focus of Morse was whether the statute prohibited intercourse by “intimidation.”
Simply because the particular facts of Morse included spouses who were sharing one residence,
-8-
the Court’s discussion of the intimidation issue included the excess language of “living
together.” However, the holding in Morse would remain intact even if the parties’ living
arrangements were to change. A review of the intimidation issue does not fail if the “living
together” language is omitted from the analysis. Put differently, whether the parties are living
together or apart is irrelevant to the holding of Morse. Thus, appellant’s argument that Morse
introduces an additional element of proof to Code § 18.2-67.2:1 is without merit.
In addition, the plain language of Code § 18.2-67.2:1 does not include the language as to
the living arrangements of the victim and the accused. In comparison, Code § 18.2-61(B) does
require that the parties live “separate and apart.” If the legislature intended to criminalize the
behavior outlined in Code § 18.2-67.2:1 only between spouses who share the same marital home,
it would have used the phrase “living together” in the statute, just as it used “living separate and
apart” in the marital rape statute.
The Virginia Supreme Court has long held that “[w]hen analyzing a statute, we must
assume that ‘the legislature chose, with care, the words it used . . . and we are bound by those
words as we interpret the statute.’” City of Va. Beach v. ESG Enters., Inc., 243 Va. 149, 153,
413 S.E.2d 642, 644 (1992) (quoting Barr, 240 Va. at 295, 396 S.E.2d at 674). “[I]t is the duty
of the courts to give effect, if possible, to every word of the written law.” Moyer v.
Commonwealth, 33 Va. App. 8, 35, 531 S.E.2d 580, 593 (2000) (en banc).
To ensure that the term “living separate and apart” has any meaning in the marital rape
statute, we must assume that its omission from the marital sexual assault statute is intentional.
Thus, the inclusive language “living separate and apart” in the marital rape statute, but its
omission from the marital sexual assault statute, compels us to hold that “living together” is not
an element of Code § 18.2-67.2:1 as it existed in 2002. We find that the Commonwealth was not
-9-
required to prove that the Walkers were living together at the time the attempted marital sexual
assault occurred. We therefore affirm that conviction.
WITHDRAWAL OF IMPLIED CONSENT
Finally, appellant contends that his convictions cannot be sustained because Mrs. Walker
did not unequivocally express her intentions to terminate the marriage. As previously stated, the
General Assembly rejected this concept when it enacted Code § 18.2-61(B) in 1986 and refused
to require proof of a spouse’s express intent to end the relationship in order to sustain convictions
for marital rape and marital sexual assault. We find that the Commonwealth was not required to
show that Mrs. Walker communicated to appellant an express and unequivocal desire to
terminate her marriage.
CONCLUSION
For the foregoing reasons, the trial court did not err in finding the evidence sufficient to
sustain convictions for marital rape and attempted marital sexual assault. Accordingly, the
convictions are affirmed.
Affirmed.
- 10 -