Kim Novell Rankin v. Commonwealth of VA ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Agee
Argued at Salem, Virginia
KIM NOVEL RANKIN
MEMORANDUM OPINION * BY
v. Record No. 3065-00-3 JUDGE LARRY G. ELDER
APRIL 9, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Mosby G. Perrow, III, Judge
S. Jane Chittom, Appellate Defender (Public
Defender Commission, on briefs), for
appellant.
Eugene Murphy, Assistant Attorney General
(Randolph A. Beales, Attorney General, on
brief), for appellee.
Kim Novel Rankin (appellant) appeals from his bench trial
conviction for forcible rape of his stepdaughter in violation of
Code § 18.2-61. 1 On appeal, appellant contends the trial court
erroneously (1) admitted testimony that appellant abused his
spouse, the victim's mother, and (2) concluded the evidence was
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
Appellant also was convicted for sexual intercourse with a
child under age thirteen, an offense also involving his
stepdaughter. Appellant challenged the sufficiency of the
evidence to support that conviction, but we denied his petition
for appeal on that ground. Thus, we do not consider in this
appeal the sufficiency of the evidence to support that
conviction.
sufficient to prove the force, threat or intimidation necessary
to support the conviction for forcible rape. Assuming without
deciding that appellant's first assignment of error is properly
before us on appeal, we hold the admission of evidence that
appellant abused his spouse, the victim's mother, in the
victim's presence, was not error because it was relevant to the
"force, threat or intimidation" element required to prove
forcible rape. We also hold that the evidence as a whole,
viewed in the light most favorable to the Commonwealth, is
sufficient to establish the force, threat or intimidation
necessary to support that conviction. Thus, we affirm
appellant's conviction.
A.
EVIDENCE OF SPOUSAL ABUSE
Appellant contends on appeal that the trial court's
admission of his former wife's testimony of spousal abuse was
error for two reasons. First, he contends the testimony was not
probative of any issue in the case and was highly prejudicial
"propensity" evidence. Second, he contends that this testimony
constituted an impermissible attempt to impeach him on a
collateral matter because whether he ever hit his former wife
during their marriage was "plainly . . . collateral to the issue
of whether he forced or threatened [the victim] to make her
engage in sexual relations." Thus, he argues, when he denied
- 2 -
beating his former wife on cross-examination, the Commonwealth
was required to take his answer and was not entitled to
introduce his former wife's contradictory testimony in rebuttal.
We assume without deciding that appellant preserved these
objections in the trial court and properly presented them for
appellate review. Nevertheless, we hold the admission of the
challenged testimony was not error.
Evidence of other bad acts or crimes is not admissible
merely to show a defendant's predisposition to commit such acts
or crimes. See, e.g., Guill v. Commonwealth, 255 Va. 134, 144,
495 S.E.2d 489, 495 (1998). However, "if such evidence tends to
prove any other relevant fact of the offense charged, and is
otherwise admissible, it will not be excluded merely because it
also shows him to have been guilty of another crime." Williams
v. Commonwealth, 203 Va. 837, 841, 127 S.E.2d 423, 426 (1962).
Under an established exception to the general rule, such
evidence is admissible "to show the conduct and feeling of the
accused towards his victim, or to establish their prior
relations." Sutphin v. Commonwealth, 1 Va. App. 241, 245, 337
S.E.2d 897, 899 (1985). In Morse v. Commonwealth, 17 Va. App.
627, 440 S.E.2d 145 (1994), in which the accused was charged
with marital sexual assault, we admitted evidence that the
accused "had on numerous previous occasions acted violently
toward [his wife] in demanding sexual intercourse." Id. at 632,
- 3 -
440 S.E.2d at 148. We held that evidence of the accused's prior
violence toward his wife "tend[ed] to prove that the intercourse
in question [between the accused and his wife] was accomplished
by conduct that was tantamount to a present threat of force by
[the accused] against [his wife]." Id. We held it also tended
to establish the wife's motivation for submitting to the demands
of the accused, "show[ing] the victim's state of mind 'as to why
she did what she did.'" Id.
Here, although the challenged evidence concerned
appellant's abuse of someone other than the victim, the facts
are sufficiently analogous to Morse to support admissibility of
the evidence. Appellant's abuse of his former wife, the
victim's mother, in the victim's presence over a period of years
was probative of the victim's fear of appellant as it related to
the issue of whether appellant used "force, threat or
intimidation" against the victim to accomplish the forcible rape
for which he was on trial. Code § 18.2-61. The challenged
evidence was admissible for that purpose, and absent clear
evidence to the contrary, we presume that the trial court
followed the law and considered the evidence only for that
purpose. See, e.g., Hall v. Commonwealth, 14 Va. App. 892, 902,
421 S.E.2d 455, 462 (1992) (en banc).
For similar reasons, the challenged evidence was not barred
by the rule restricting impeachment on a collateral matter.
- 4 -
A witness may be impeached on
cross-examination by proof that he has, on a
prior occasion, made a statement that is
inconsistent with any testimony given by him
on direct examination. However, if the
subject matter is raised for the first time
on cross-examination and is collateral to
the issues on trial, it cannot be the basis
for impeachment by proof of a prior
inconsistent statement.
Waller v. Commonwealth, 22 Va. App. 53, 57, 467 S.E.2d 844, 847
(1996). "'The test as to whether a matter is material or
collateral, in the matter of impeachment of a witness, is
whether or not the cross-examining party would be entitled to
prove it in support of his case.'" Maynard v. Commonwealth, 11
Va. App. 437, 445, 399 S.E.2d 635, 640 (1990) (en banc) (quoting
Allen v. Commonwealth, 122 Va. 834, 842, 94 S.E. 783, 786
(1918)).
Here, the subject matter on which the Commonwealth sought
to offer the rebuttal evidence was raised for the first time on
appellant's cross-examination rather than his direct
examination. However, that subject matter, appellant's prior
abuse of his former wife, in the presence of her daughter, the
victim, was not collateral to the issues on trial. As discussed
above, appellant's abuse of his former wife in the victim's
presence over a period of years was probative of the victim's
fear of appellant as it related to whether appellant used
"force, threat or intimidation" against the victim to accomplish
- 5 -
the forcible rape. Appellant's former wife's testimony,
although offered in rebuttal, would have been admissible in the
Commonwealth's case-in-chief because it was probative of this
issue. In fact, the victim herself testified on direct
examination in the Commonwealth's case-in-chief that before
appellant had intercourse with her for the first time, appellant
"had beat on [both her and her mother] before," "[w]hen he was
mad and angry and raging, which was often." Appellant posed no
objection to this testimony. As discussed above, both the
victim's testimony and her mother's testimony about appellant's
prior abuse of the victim's mother in the victim's presence was
relevant and admissible to prove forcible rape and was not
collateral.
B.
SUFFICIENCY OF THE EVIDENCE
Code § 18.2-61 provides as follows:
If any person has sexual intercourse
with a complaining witness who is not his or
her spouse . . . and such act is
accomplished . . . against the complaining
witness's will, by force, threat or
intimidation of or against the complaining
witness or any other person . . . , he or
she shall be guilty of rape.
Code § 18.2-61(A)(i).
Appellant contends the evidence was insufficient to prove
he used "force, threat or intimidation" against the victim. In
- 6 -
considering this claim, we view the evidence in the light most
favorable to the Commonwealth, granting to the evidence all
reasonable inferences deducible therefrom. Higginbotham v.
Commonwealth, 216 Va. 349, 353, 218 S.E.2d 534, 537 (1975). The
credibility of a witness, the weight accorded the testimony, and
the inferences to be drawn from proven facts are matters solely
for the fact finder's determination. Long v. Commonwealth, 8
Va. App. 194, 199, 379 S.E.2d 473, 476 (1989).
In order to prove force sufficient to support a conviction,
"[t]he force must be used to overcome the victim's will.
'There must be evidence of "some array or show of force in form
sufficient to overcome resistance."'" Sabol v. Commonwealth, 37
Va. App. 9, 16-17, 553 S.E.2d 533, 536-37 (2001) (quoting Jones
v. Commonwealth, 219 Va. 983, 986, 252 S.E.2d 370, 372 (1979)
(quoting Davis v. Commonwealth, 186 Va. 936, 946, 45 S.E.2d 167,
171 (1947))). "Threat,"
[a]s used in the statute, . . . means
expression of an intention to do bodily
harm. Intimidation may occur without
threats. Intimidation, as used in the
statute, means putting a victim in fear of
bodily harm by exercising such domination
and control of her as to overcome her mind
and overbear her will. Intimidation may be
caused by the imposition of psychological
pressure on one who, under the
circumstances, is vulnerable and susceptible
to such pressure.
- 7 -
Sutton v. Commonwealth, 228 Va. 654, 663, 324 S.E.2d 665, 670
(1985). "This fear of bodily harm must derive from some conduct
or statement of the accused." Sabol, 37 Va. App. at 18, 553
S.E.2d at 537. Whether the accused used "force[, threat or
intimidation] to overcome the victim's will is a factual
question, and this Court defers to the fact finder's decision
unless plainly wrong." Id. at 17, 553 S.E.2d at 537.
Here, the trial court found that appellant accomplished the
intercourse which occurred when the victim was thirteen "through
fear and intimidation." The evidence, viewed in the light most
favorable to the Commonwealth, supports that finding.
Appellant, the victim's stepfather, was the only father the
victim had ever known. Appellant repeatedly physically and
mentally abused the victim's mother, his former wife, in the
presence of the victim and her siblings when the victim and her
siblings were small. The victim recounted an incident occurring
before her twelfth birthday in which appellant "beat [her]
mother . . . into the head of the [brass] bed" until she began
to bleed. Sometime before appellant had intercourse with the
victim for the first time when she was twelve, he also had
beaten the victim. As discussed in Part A above, this evidence
was admissible as relevant to the victim's motivation for
submitting to appellant's demands. See, e.g., Morse, 17 Va.
App. at 632, 440 S.E.2d at 148.
- 8 -
Although appellant did not speak to the victim when he had
intercourse with her and apparently used no physical force
beyond what was necessary to remove her clothing, the victim
testified that she never consented to have intercourse with him
and she told him, "I don't want to do this." Despite her verbal
protestations, appellant "continued to force himself on [her]"
"as often as possible," "[e]very chance that nobody was home."
Before the victim was thirteen, appellant would "beat on"
her, "whip [her] with a belt and jerk [her] by [her] face." The
victim testified that the physical abuse made her fearful of
appellant and that she thought "[t]here was nothing she could
do" when he forced himself on her. She testified that when she
turned thirteen, appellant "continue[d] to force [her] to have
sex . . . [a]s often as he could" and that he continued to have
sex with her, "against [her] will," after she became pregnant
with and gave birth to his child, all of which occurred while
she was thirteen.
Thus, the evidence supports the trial court's finding that
appellant "put[] the victim in fear of bodily harm by exercising
such domination and control of her as to overcome her mind and
overbear her will." Sutton, 228 Va. at 663, 324 S.E.2d at 670.
A finding of intimidation did not require proof that appellant
expressly threatened to do bodily harm to the victim if she
- 9 -
failed to submit to his advances. 2 Id. at 663, 324 S.E.2d at
669-70.
2
Appellant contends that our holding in Bower v.
Commonwealth, 36 Va. App. 382, 551 S.E.2d 1 (2001), compels a
finding that the evidence was insufficient to prove the force,
threat or intimidation necessary to support his conviction under
Code § 18.2-61(A)(i). We disagree for two reasons.
First, the Supreme Court granted the Commonwealth's
petition for appeal of our decision in Bower, see Commonwealth
v. Bower, No. 012220 (Va. Sup. Ct. Order of 12/20/01). Thus,
that decision presently has no precedential value. Cf. Faison
v. Hudson, 243 Va. 413, 419, 417 S.E.2d 302, 305 (1992) (holding
judgment "not final for purposes of res judicata . . . when it
is being appealed"); 21 C.J.S. Courts § 140(b), at 165 (1990)
(noting similarities in doctrines of res judicata and stare
decisis on principles of law, although recognizing that the
former relates only to issues resolved between the parties and
their privies whereas the latter applies regardless of the
identity of the parties).
Second, Bower is distinguishable on its facts. Bower
involved an accused who was charged with animate object sexual
penetration of his thirteen-year-old daughter while she
pretended to be asleep, a charge which also required proof that
the accused used force, threat or intimidation to accomplish the
proscribed act. Bower, 36 Va. App. at 386, 551 S.E.2d at 3. In
Bower, the evidence established that the victim and her father
had a "good relationship" prior to the charged act and that "the
act was probably accomplished by surprise." Id. at 385, 390,
551 S.E.2d at 2, 4, 5. We "[found] no language in Code
§ 18.2-67.2 or other relevant statutes that creates a subclass
of victims over age twelve where evidence of intimidation, force
or threat is sufficiently proved based solely on parentage or
size differential." Id. at 391, 551 S.E.2d at 5. Because
"there was no evidence, direct or inferred, of any prior or
contemporaneous act, communication or course of conduct by Bower
that would place his daughter in fear of bodily harm," we held
the evidence was insufficient to support Bower's conviction.
Id. at 389, 551 S.E.2d at 4.
In appellant's case, by contrast, the record was replete
with evidence of "prior . . . act[s] . . . or course of conduct
by [appellant] that would place his [step]daughter[, the
victim,] in fear of bodily harm" if she refused his efforts to
have sexual intercourse. See id. Thus, the reasoning in Bower
supports our affirmance of appellant's conviction.
- 10 -
For these reasons, we affirm appellant's conviction for
forcible rape in violation of Code § 18.2-61.
Affirmed.
- 11 -