David Allen Haynes v. Commonwealth of Virginia ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Coleman and Bumgardner
DAVID ALLEN HAYNES
MEMORANDUM OPINION * BY
v. Record No. 1778-98-3 JUDGE RUDOLPH BUMGARDNER, III
OCTOBER 5, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ALLEGHANY COUNTY
Duncan M. Byrd, Jr., Judge
(James V. Doss, III, on brief), for
appellant. Appellant submitting on brief.
(Mark L. Earley, Attorney General; Richard B.
Smith, Assistant Attorney General, on brief),
for appellee. Appellee submitting on brief.
David Allen Haynes appeals from his convictions of
unlawfully entering the property of another, sexual battery, and
attempted rape. He concedes his guilt of unlawful entry and
sexual battery, but argues the trial court erred in convicting
him of attempted rape. He contends that the evidence was
insufficient and that sexual battery is a lesser-included
offense of attempted rape and conviction of both crimes violates
his protections against double jeopardy. Finding no error, we
affirm the conviction.
On appeal, we "discard all evidence of the accused that
conflicts with that of the Commonwealth and regard as true all
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
credible evidence favorable to the Commonwealth and all fair
inferences reasonably deducible therefrom." Lea v.
Commonwealth, 16 Va. App. 300, 303, 429 S.E.2d 477, 479 (1993).
Haynes entered the victim's trailer shortly after 7:00 a.m.
and woke her. The victim only knew the defendant's first name,
and he had never been to her trailer, was not expected, or
invited. He was drinking, smelled of alcohol, and had a beer
bottle in his hand. He approached the victim in her bedroom but
would not leave when she told him to leave. The defendant
started kissing the victim and eventually he put his hand on her
shoulder while holding her wrist behind her back with his other
hand. He touched her hair and face, then her leg underneath her
nightgown and moved his hand up her leg. The victim testified:
"I knew he was going to try to take my panties off. His hand
was on my vagina . . . inside of my panties . . . ." She
grabbed his hand, pushed him as hard as she could, and ran into
the bathroom when he fell backwards.
Inside the bathroom, the victim braced herself against the
door which had no lock. As the defendant banged on the door, he
tried to get her to let him inside. With anger in his voice, he
threatened "I'll just fuck you then," and hit the door so that
it hit the victim in the head. The victim could see through a
slight opening that the defendant had taken off all his clothes.
When the victim ran into the bathroom, she had been able
to grab a telephone, and while the defendant was trying to get
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in the bathroom, she called the police. By the time they
arrived, the defendant had left, and his clothes and beer bottle
were gone. The victim described her assailant, gave his first
name, and identified his picture in a photo lineup. The
officers interviewed the defendant the next day.
The defendant first claimed to have blacked out from
drinking and denied knowing anything about the incident. A few
days later, he changed his story and said he had gone to the
trailer. He claimed to have been having an affair with the
victim for a year, and that morning he was to get a ride to work
when "she kind of freaked out." He denied touching her that
morning.
The trial court's ruling will not be disturbed on appeal
unless plainly wrong or unsupported by the evidence. See Martin
v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418
(1987). The fact finder, who determines the credibility of the
witnesses and the weight accorded their testimony, may accept or
reject the testimony in whole or in part. See Bridgeman v.
Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986).
The fact finder is also entitled to disbelieve the self-serving
testimony of the accused and to conclude that he is lying to
conceal his guilt. See Speight v. Commonwealth, 4 Va. App. 83,
88, 354 S.E.2d 95, 98 (1987) (en banc).
The defendant concedes that the evidence is sufficient to
support the conviction of sexual battery. See Code § 18.2-67.4.
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He completed committing that crime when he touched the victim's
vagina as he held her hand behind her back. Separate from those
actions, the defendant's acts after the victim escaped to the
bathroom constitute the attempted rape.
"Attempted rape consists of 'the intent to engage in sexual
intercourse, and some direct yet ineffectual, act towards its
consummation.'" Siquina v. Commonwealth, 28 Va. App. 694, 699,
508 S.E.2d 350, 353 (1998) (citation omitted). See Code
§ 18.2-61(A). Once the victim entered the bathroom, the
defendant continually banged and forced the door in an attempt
to get inside. He disrobed and threatened to "fuck [her]."
Credible evidence established each element of the crime.
All of the actions that proved the attempted rape were
separate and distinct from the actions that proved the sexual
battery. The defendant could not have been twice convicted for
the same offense; under these facts, they were separate and
distinct offenses. See Blockburger v. United States, 284 U.S.
299, 304 (1932). Accordingly, we need not address the argument
that sexual battery is a lesser-included offense of attempted
rape. We affirm the conviction of attempted rape.
Affirmed.
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