Steven Eric Holden v. Commonwealth ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Annunziata and Overton
Argued at Richmond, Virginia
STEVEN ERIC HOLDEN
MEMORANDUM OPINION * BY
v. Record No. 2245-97-2 JUDGE JERE M. H. WILLIS, JR.
JUNE 30, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF NORTHUMBERLAND COUNTY
Joseph E. Spruill, Jr., Judge
William A. Nunn, III (William A. Nunn, III,
P.C., on brief), for appellant.
Donald E. Jeffrey, III, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Steven Eric Holden contends that the evidence is
insufficient to support his conviction for forcible sodomy in
violation of Code § 18.2-67.1. He argues that the Commonwealth
failed to show that the sodomy was accomplished against the will
of the complaining witness by force, threat or intimidation. We
affirm the judgment of the trial court.
On appeal, we review the evidence in the
light most favorable to the Commonwealth,
granting to it all reasonable inferences
fairly deducible therefrom. The judgment of
a trial court sitting without a jury is
entitled to the same weight as a jury verdict
and will not be set aside unless it appears
from the evidence that the judgment is
plainly wrong or without evidence to support
it.
Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
(1987).
On the night of February 23, 1997, LaShawna, age thirteen,
who had been asleep on a sofa in a room shared by nine other
children, was awakened by Holden "rubbing [her] leg." Holden,
who was intoxicated, turned LaShawna onto her side with her face
towards the sofa, and pulled her underpants down. He then moved
her over, and "was pushing on [her] vagina trying to force his
penis in [her] behind." With his hand on her "vagina," Holden
penetrated LaShawna's anus with his penis. The attack ended when
LaShawna's mother entered the room.
An accused shall be guilty of forcible sodomy
if he or she engages in . . . anal
intercourse with a complaining witness . . .
and
2. The act is accomplished against
the will of the complaining
witness, by force, threat or
intimidation of or against the
complaining witness or another
person, or through the use of the
complaining witness's mental
incapacity or physical
helplessness.
Code § 18.2-67.1(A).
Viewed in the light most favorable to the Commonwealth,
Martin, 4 Va. App. at 443, 358 S.E.2d at 418, the evidence
supports the trial court's finding that the anal intercourse was
accomplished against LaShawna's will through the use of force. 1
1
Because we find ample evidence that the sodomy was
accomplished by "force," we need not decide whether the evidence
supports also a finding that the attack was accomplished by
"intimidation." The Commonwealth concedes in its brief that the
sodomy was not accomplished through the use of a "threat" because
- 2 -
While LaShawna neither protested nor resisted, the Commonwealth
was not required to prove that she "cried out" or "physically
resisted." Code § 18.2-67.6; Farish v. Commonwealth, 2 Va. App.
627, 631, 346 S.E.2d 736, 738-39 (1986). Cf. Sutton v.
Commonwealth, 228 Va. 654, 663, 324 S.E.2d 665, 670 (1985) ("'if
by an array of physical force he so overpowers her mind that she
does not resist, he is guilty of rape'"). LaShawna pretended to
be asleep because she was "scared to move or do anything." She
testified that she "did not want this to happen." Holden was
behind her, and the sofa was in front of her, restricting her
movement. Holden "kept [her] from moving," and "[i]f [she] tried
to get up, he would hold [her] back."
The trial court heard LaShawna's testimony and observed her
demeanor. It was entitled to consider the difference in size and
age between Holden and LaShawna. Some force was inherent in the
commission of the charged offense. However, Holden employed
enough additional force to overcome LaShawna's will by preventing
her from moving and deterring any attempt by her to free herself.
Cf. Johnson v. Commonwealth, 5 Va. App. 529, 534, 365 S.E.2d
237, 240 (1988) (requiring showing of force beyond the force
required to accomplish sexual battery).
The judgment of the trial court is affirmed.
(..continued)
there was no evidence of an "expression of an intention to do
bodily harm." Sutton v. Commonwealth, 228 Va. 654, 663, 324
S.E.2d 665, 670 (1985) (defining "threat" for purposes of the
rape statute).
- 3 -
Affirmed.
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