Levyn Herbert Andrade, a/k/a, etc. v. Commonwealth of Virginia ( 2023 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Malveaux, Fulton and White
UNPUBLISHED
Argued by videoconference
LEVYN HERBERT ANDRADE, A/K/A
LEVYN ANDRADE, A/K/A
LEVYN H. ANDRADE, A/K/A
LEVYN HERBERTH ANDRADE CRUZ
MEMORANDUM OPINION* BY
v. Record No. 0329-22-4 JUDGE JUNIUS P. FULTON, III
APRIL 11, 2023
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Stephen E. Sincavage, Judge
Tabatha N. Blake, Senior Trial Attorney (Office of the Public
Defender, on briefs), for appellant.
Lindsay M. Brooker, Assistant Attorney General (Jason S. Miyares,
Attorney General, on brief), for appellee.
Following a jury trial, Levyn Andrade was convicted in the Loudoun County Circuit Court
of rape, abduction, unlawful wounding, and simple assault and battery, in violation of Code
§§ 18.2-61, 18.2-47, 18.2-51, and 18.2-57, respectively.1 Andrade asserts that the trial court abused
its discretion in allowing the Commonwealth to introduce prior bad acts evidence. He also argues
*
This opinion is not designated for publication. See Code § 17.1-413.
1
The conviction and sentencing orders state that Andrade was convicted of felony assault
and battery and lists the code section for strangulation, § 18.2-51.6; however, the jury convicted
Andrade of the lesser-included misdemeanor of assault and battery, which is a violation of Code
§ 18.2-57. Therefore, we remand this case for the limited purpose of correcting the conviction
and sentencing orders.
that the evidence was insufficient to support his convictions for rape and abduction.2 For the
following reasons, we affirm the trial court’s judgment.
I. BACKGROUND3
C.A. married Andrade in February 2019, and their daughter was born in February 2020.
C.A. also had two children from a prior relationship, A.A. and D.A. Andrade had three children
from a prior marriage, L.A., F.A., and M.A. In October 2020, the couple lived together in an
apartment in Ashburn, Virginia, with A.A., D.A., and their infant daughter. On October 3, 2020,
C.A. and Andrade took all six children to a birthday party at the home of Andrade’s brother,
Ricardo. C.A. drank half of a Smirnoff seltzer around 11:00 p.m. and then two shots of tequila
between 1:00 and 2:00 a.m. Andrade drank ten beers before 10:00 p.m. and then continued to drink
beer throughout the night. He also consumed several shots of alcohol. Around 4:00 a.m., C.A. was
outside talking to a friend, when Andrade, looking “very upset,” indicated that he wanted to leave.
C.A. continued her conversation with her friend, and Andrade opened the sliding glass door and told
C.A. “when I say we go, we gotta go.” C.A. asked Andrade to let her finish her conversation, but he
replied, “no” and told her to get up. C.A. told him to stop speaking to her in that manner and stated
that he needed to respect her. Still very upset, Andrade threw a baby blanket at C.A. C.A. began
crying, and her friend told her to call if she needed anything.
C.A. gathered the children, and they left the party. C.A. drove, and Andrade sat in the
passenger seat holding their infant daughter on his lap. The other five children sat in the back seat.
C.A. first drove L.A. and F.A. to their mother’s house and then drove home. It was a quiet ride, and
2
Andrade does not challenge his convictions for unlawful wounding and assault and
battery.
3
“Under well-settled principles of appellate review, we consider the evidence presented
at trial in the light most favorable to the Commonwealth, the prevailing party in the circuit
court.” Porter v. Commonwealth, 276 Va. 203, 215-16 (2008).
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there was no interaction between C.A. and Andrade. At some point on the drive home, C.A.
realized she did not know where her phone was. Once inside their apartment, C.A. put the older
children to sleep and then entered the bedroom she shared with Andrade. Andrade closed and
locked the door and instructed C.A. to put their infant daughter to sleep. C.A. laid on the bed and
breast fed the baby until the baby fell asleep. When C.A. sat up on the bed, Andrade punched her in
the face. C.A. fell back, and Andrade continued to strike her, hitting her very hard in her left eye.
C.A. could not see anything as Andrade held her down by her neck. C.A. pushed Andrade off with
her feet and dropped to the ground. Andrade repeatedly hit and punched C.A. about her head, face,
shoulder, and her arms, all the while yelling that she was “never going to disrespect [him] again”
and insisting that she was “going to learn [her] lesson.” C.A. begged Andrade to stop. Their infant
daughter awoke and began crying like she had “never cried before.” Andrade allowed C.A. to put
the baby back to sleep, but said she knew what she would have to do afterwards. C.A. knew that
meant she would have to do “whatever he wanted sexually.” C.A. responded, “I will do whatever
you ask me to do.”
At that point, A.A. having heard the altercation, knocked on the bedroom door and asked to
say goodnight to C.A. She wanted to make sure C.A. was “okay.” Andrade turned off the light so
the child could not see C.A.’s face and then unlocked the door. A.A. approached C.A. in the dark
and said goodnight to her mother. C.A. told A.A. that she was fine and then whispered for A.A. to
call 911. After A.A. left the bedroom, Andrade shut and locked the door again, got on the bed, and
told C.A. to get on top of him. C.A. did not feel that she could decline having intercourse with
Andrade because he said he would continue to hit her if she did not do what he asked. At that
moment, she feared for her life and was not willing to put her children at risk. C.A. was crying and
in a tremendous amount of pain when she got on top of Andrade. Andrade grabbed C.A. and
inserted his penis in her vagina, while saying “do it right, do it right. You’d better do it right.”
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Andrade told C.A., “if you don’t do it right this is the last time you’re going to do it.” C.A. feared
he was going to kill her. Andrade ordered C.A. to put his penis in her anus. When she objected, he
lifted his chest in a threatening manner and simulated hitting her with his fist. C.A. pretended to
engage in anal sex with Andrade and returned his penis to her vagina. Afterwards, Andrade allowed
C.A. to go to the bathroom. When she returned from the bathroom, Andrade was asleep. C.A.
“crawled to the ground, grabbed [Andrade’s cell] phone, and dialed 911 and . . . went into the
closet.”
Over Andrade’s objection, C.A. testified that she was afraid during this incident because
Andrade physically abused her “multiple times during [their] marriage,” resulting in past injuries.
C.A. also testified that she was “terrified” of Andrade and feared he might try to kill her. The trial
court limited C.A.’s testimony to prior physical, rather than sexual, abuse and instructed the jury
that it could consider the testimony only “as evidence of the basis for [C.A.’s] decisions and actions
in connection with the alleged crimes for which [Andrade] is on trial.”
Loudoun County Emergency Communications Dispatcher Claudia Torres answered C.A.’s
911 call in the early morning hours of October 4, 2020. Torres testified that C.A. was “very scared,
very shaken,” and she was whispering. Torres had trouble understanding her because she was
crying. The 911 call was also entered into evidence and played for the jury.
Loudoun County Sheriff’s Deputy Brian Jarvis went to Andrade’s apartment in response to
the 911 call. Deputy Jarvis noticed that C.A.’s face was bruised and showed significant swelling.
C.A. was crying and appeared to be terrified. After speaking with C.A., Deputy Jarvis entered the
bedroom and awoke Andrade. Andrade smelled of alcohol, and his eyes were red. Deputy Jarvis
observed “red marks and discolorations” to Andrade’s hands but did not see any other injuries on
Andrade’s body.
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Loudoun County Fire and Rescue paramedic Earl Hall went to the apartment in response to
the 911 call and observed C.A. sitting on the edge of the bed holding her infant. Two additional
children were “off to the side crying.” C.A. appeared visibly upset, but she was conscious, alert,
and oriented. Hall instantly noticed injuries to C.A.’s head and face. Her right eye was very bruised
and swollen, and there was a contusion above her left eyebrow. Hall did not see any indication that
C.A. was intoxicated. While transporting C.A. to the hospital, Hall noticed more marks appearing
on C.A.’s neck and above her right eyebrow.
Loudoun County Sheriff’s Deputy Joshua Schleffer assisted Deputy Jarvis in waking
Andrade and finding clothes for him to wear. Deputy Schleffer noticed swelling on Andrade’s
knuckles and redness on his hands. He also saw a cut on Andrade’s lip.
Sheriff’s Deputy Samuel Staley photographed Andrade at the Loudoun County Adult
Detention Center; he then went to the hospital to photograph C.A.’s injuries. The photographs were
admitted into evidence at trial. Deputy Staley did not observe any additional injuries on Andrade
other than the cut on his knuckle.
Sheriff’s Deputy Phi Pham also went to the apartment in response to the 911 dispatch and
spoke to Andrade. Andrade told Deputy Pham that he did not know what had occurred and stated
that he went straight to sleep when he returned from Ricardo’s party. Andrade denied that C.A.’s
face was bruised at any time that evening but acknowledged that she had “redness” on the side of
her face and forehead. Andrade said he consumed two to three drinks at the party, but then changed
his answer and stated that he had only one drink. Deputy Pham noticed that Andrade’s eyes were
“bloodshot red” and there was an odor of alcohol emanating from his body. Andrade claimed that
C.A. was the aggressor and that she abused him. Upon Deputy Pham’s inquiry, Andrade stated that,
although C.A. was mad at him, she still “absolutely” wanted to have sex with him. When Deputy
Pham clarified whether C.A. had been aggressive with Andrade that night, Andrade said “not
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tonight.” Deputy Pham did not notice any wounds, marks, or other injuries on Andrade. Deputy
Pham also did not notice any indication that C.A. was intoxicated.
At the Inova Fairfax Hospital emergency room, Sexual Assault Nurse Examiner Ashleigh
Daniel performed a medical forensic examination on C.A. Daniel noted several injuries on C.A.,
including bruising and petechiae (broken blood vessels) in the area around C.A.’s left temple,
hairline, the left side of her face, and her neck. Daniel also noticed bruising and petechiae around
C.A.’s ears, which struck her as unusual because “[y]ou don’t see a lot of injuries to the ear. . . .
[I]t’s a very uncommon place to get injured. . . . [A]ny sort of accidental injury on the ear is pretty
rare.” C.A. also had bruising and petechiae under her right eye and the right side of her face and
bruising to her arm. C.A. had additional injuries to her eye, which had a subconjunctival
hemorrhage, or “a collection of blood under the eyeball.” Dr. Maria Van Winkle treated C.A. and
diagnosed her with an orbital fracture, which is “a break in the bones around the . . . eye socket
area.” C.A. did not appear intoxicated to Dr. Van Winkle.
Loudoun County Sheriff’s Detective Elissa Wilk met with C.A. days after the attack. C.A.
was visibly shaking and crying. She appeared sad and scared. Detective Wilk took additional
photographs of C.A.’s still visible injuries, which were admitted into evidence at trial. After
interviewing and photographing C.A., Detective Wilk obtained additional warrants for Andrade.
When Detective Wilk served the warrants on Andrade and informed him of the charges, Andrade
said, “my wife started it. How could it be rape if she was on top?” A.A. testified that after the
family returned home from Ricardo’s party, she and her stepsister prepared to go to sleep. A.A. felt
scared because she heard Andrade telling her mother “Shut the F up,” so she went to her mother’s
bedroom to say goodnight. A.A. attempted to open the bedroom door, but it was locked, so she
knocked and heard her mother tell her to go to sleep. A.A. did not want to go back to bed before
speaking to her mother, so Andrade turned off the light before opening the bedroom door to allow
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A.A. entry to the room. A.A. went to her mother on the bed and hugged her. While they were
hugging, C.A. twice whispered for A.A. to call 911. A.A. left the bedroom and started to call 911,
but then decided against it because she was not sure that she heard her mother correctly, and
because she “was just so scared.”
Andrade called two witnesses, one who acknowledged that he was a friend of Andrade, who
had attended Ricardo’s birthday party. Both testified that they observed C.A. drinking alcohol
during the party, and both testified that C.A. was upset with Andrade toward the end of the party.
Andrade’s son, L.A., testified that C.A. drank more than five shots of tequila at the party and
that she became upset with Andrade as they left the party. In the car, L.A. observed C.A. hit
Andrade in the arm three times with her fist. Because Andrade was sleeping, he did not respond.
Andrade’s other children, M.A. and F.A., also both testified that they observed C.A. drinking at the
party and that she punched Andrade in the arm in the car.
Andrade testified that C.A. was physically abusive toward him during their marriage. He
explained that when they arrived home from the party, C.A. began arguing with him. When he told
C.A. she was crazy, C.A. became furious and jumped on top of him. Andrade claimed that C.A.
“overdid [it] and pass[ed] [him] and slam[med] her face on the headboard.” Andrade pushed C.A.
“very hard” out of the bed. When C.A. tried to get on top of him again, he “grabbed her . . .
between the head and the shoulders and . . . fully projected her out of the bed.” C.A. “came back a
third time,” and he pushed her back, causing her to fall against the dresser. Andrade claimed that
C.A. initiated a sexual encounter, but then she became frustrated and “just got off and went to the
bathroom.” Andrade testified that it was not uncommon for them to have sex after an argument. He
denied harming C.A., restraining her liberty, or engaging in sexual intercourse with her against her
will.
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The jury convicted Andrade of rape, abduction, unlawful wounding, and assault and battery.
Andrade noted this appeal.
II. ANALYSIS
A. Prior Bad Acts
Andrade first asserts that the trial court erred in allowing C.A. to testify that Andrade
committed prior acts of physical violence toward her. We disagree.
“The admissibility of evidence is within the broad discretion of the trial court, and a ruling
will not be disturbed on appeal in the absence of an abuse of discretion.” Jones v. Commonwealth,
38 Va. App. 231, 236 (2002) (quoting Blain v. Commonwealth, 7 Va. App. 10, 16 (1988)). “In
evaluating whether a trial court abused its discretion, . . . we do not substitute our judgment for that
of the trial court. Rather, we consider only whether the record fairly supports the trial court’s
action.” Kenner v. Commonwealth, 299 Va. 414, 423 (2021) (alteration in original) (quoting Carter
v. Commonwealth, 293 Va. 537, 543 (2017)). “The abuse-of-discretion standard [also] includes
review to determine that the discretion was not guided by erroneous legal conclusions.” Id.(alteration in original) (quoting Carter, 293 Va. at 543-44). An abuse of discretion occurs “when a
relevant factor that should have been given significant weight is not considered; when an irrelevant
or improper factor is considered and given significant weight; and when all proper factors, and no
improper ones, are considered, but the court, in weighing those factors, commits a clear error of
judgment.” Commonwealth v. Proffitt, 292 Va. 626, 634 (2016) (quoting Landrum v. Chippenham
& Johnston-Willis Hosps., Inc., 282 Va. 346, 352 (2011)).
As a general rule, evidence which shows or tends to show that the
accused is guilty of other crimes and offenses at other times, even
though they are of the same nature as the one charged in the
indictment, is not admissible to show the accused’s commission of
the particular crime charged.
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Ortiz v. Commonwealth, 276 Va. 705, 714 (2008). However, this general rule “must sometimes
yield to society’s interest in the truth-finding process, and numerous exceptions allow evidence of
prior misconduct whenever the legitimate probative value outweighs the incidental prejudice to the
accused.” Conley v. Commonwealth, 74 Va. App. 658, 670 (2022) (quoting Gonzales v.
Commonwealth, 45 Va. App. 375, 381 (2005) (en banc)).
Specifically, other crimes evidence is admissible when it “shows the
conduct or attitude of the accused toward his victim[;] establishes the
relationship between the parties[;] or negates the possibility of
accident or mistake[;]” or shows motive, method, intent, plan or
scheme, or any other relevant element of the offense on trial.
Kenner, 299 Va. at 424 (alterations in original) (quoting Ortiz, 276 Va. at 714). “Once the Court
has determined that the ‘prior bad acts’ evidence is relevant, and not mere ‘propensity evidence,’ the
Court must still determine whether the risk of unfair prejudice outweighs the probative value of the
evidence.” Conley, 74 Va. App. at 671. Indeed, “[r]elevant evidence may be excluded if: . . . the
probative value of the evidence is substantially outweighed by (i) the danger of unfair prejudice, or
(ii) its likelihood of confusing or misleading the trier of fact.” Va. Rule Evid. 2:403.
“Rule 2:403’s requirement that only unfair prejudice may be considered as grounds for
non-admission ‘reflects the fact that all probative direct evidence generally has a prejudicial effect
to the opposing party.’” Fields v. Commonwealth, 73 Va. App. 652, 673 (2021) (quoting Lee v.
Spoden, 290 Va. 235, 251 (2015)). “‘[U]nfair prejudice’ refers to the tendency of some proof to
inflame the passions of the trier of fact, or to invite decision based upon a factor unrelated to the
elements of the claims and defenses in the pending case.” Lee, 290 Va. at 251. In fact, “[a]ll
evidence tending to prove guilt is prejudicial to an accused, but the mere fact that such evidence is
powerful because it accurately depicts the gravity and atrociousness of the crime or the callous
nature of the defendant does not thereby render it inadmissible.” Fields, 73 Va. App. at 672-73
(quoting Powell v. Commonwealth, 267 Va. 107, 141 (2004)). “The responsibility for balancing the
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probative value versus the prejudicial effect rests in the sound discretion of the trial court.” Kenner,
299 Va. at 424.
Here, the Commonwealth was required to prove that Andrade engaged in sexual intercourse
with C.A. against her will by force, threat, or intimidation and that he deprived her of her personal
liberty by keeping her locked in the bedroom during the assault. See Code §§ 18.2-61 and 18.2-47.
C.A. testified that she did not leave the bedroom during the assault because Andrade was “in
between the door and herself” and she felt that he was “not going to let [her] get out of the room.”
C.A. “wouldn’t have been able to walk out of the room.” She also testified that she engaged in
sexual intercourse with Andrade solely because “saying no was [not] an option” and because
Andrade told her he was going to keep hitting her if she did not get on top of him and “do it right.”
C.A. feared for her life and was afraid for her children. Andrade disputed C.A.’s assertions and
claimed that C.A. was not only free to leave the bedroom at any time, but that she initiated the
sexual contact and consented to sexual intercourse. Thus, the evidence of Andrade’s prior acts of
physical violence toward C.A. was probative of C.A.’s state of mind and explained the reason she
remained in the bedroom to engage in sexual intercourse with Andrade against her will. C.A.’s
testimony proved that she was intimidated by his violence into doing “whatever [he] ask[ed] [her] to
do.” Indeed, Andrade’s prior instances of violence established the nature of the relationship
between Andrade and C.A. and explained the fear she felt in their bedroom during the early
morning hours of October 4, 2020. Evidence is relevant if it has “any tendency to make the
existence of any fact in issue more probable or less probable than it would be without the evidence.”
Va. Rule Evid. 2:401.
Andrade’s suggestion that C.A.’s testimony was more prejudicial than probative is not
supported by the record. C.A. merely testified that Andrade physically abused her multiple times
during the marriage resulting in past injuries. Given that C.A.’s testimony concerning past acts of
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violence did not touch on the specific details of the prior bad acts but only their occurrence, was
unlikely to be unfairly prejudicial or inflammatory to the jury, eliciting a disproportionate emotional
response. Rather, the evidence helped explain why C.A. took Andrade at his word when he said he
would keep hitting her if she did not do what she was told.
Because C.A.’s testimony regarding Andrade’s prior acts of physical violence within the
marriage was relevant to prove her lack of consent to the sexual intercourse and her belief that she
was not free to leave the bedroom, and because its probative effect was not outweighed by any
unfair prejudice to Andrade’s defense, the trial court did not abuse its discretion in allowing it.
B. Sufficiency of the Evidence
Andrade asserts that the evidence was insufficient to prove he committed the crimes of rape
and abduction. He argues that the evidence failed to prove he deprived C.A. of her personal liberty
and contends that the act of intercourse was consensual. Again, we disagree.
“When reviewing the sufficiency of the evidence, ‘[t]he judgment of the trial court is
presumed correct and will not be disturbed unless it is plainly wrong or without evidence to support
it.’” McGowan v. Commonwealth, 72 Va. App. 513, 521 (2020) (alteration in original) (quoting
Smith v. Commonwealth, 296 Va. 450, 460 (2018)). “In such cases, ‘[t]he Court does not ask itself
whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’” Id.(alteration in original) (quoting Secret v. Commonwealth, 296 Va. 204, 228 (2018)). “Rather, the
relevant question is whether ‘any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.’” Vasquez v. Commonwealth, 291 Va. 232, 248 (2016) (quoting
Williams v. Commonwealth, 278 Va. 190, 193 (2009)). “If there is evidentiary support for the
conviction, ‘the reviewing court is not permitted to substitute its own judgment, even if its opinion
might differ from the conclusions reached by the finder of fact at the trial.’” McGowan, 72
Va. App. at 521 (quoting Chavez v. Commonwealth, 69 Va. App. 149, 161 (2018)).
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1. Abduction
Any person who, by force, intimidation or deception, and
without legal justification or excuse, seizes, takes, transports, detains
or secretes another person with the intent to deprive such other
person of his personal liberty or to withhold or conceal him from any
person, authority or institution lawfully entitled to his charge, shall
be deemed guilty of abduction.
Code § 18.2-47(A). “[T]he actus reus of the crime is a taking, transporting, or detention of another,
while the mens rea of the crime is a specific intent to deprive another of her liberty.” Brown v.
Commonwealth, 74 Va. App. 721, 730-31 (2022). “A defendant detains his victim by keeping the
victim in a specific place ‘through the use of force, intimidation, or deception.’” Id. at 731 (quoting
Commonwealth v. Herring, 288 Va. 59, 74 (2014)). Proof of asportation is not required. “[M]ere
detention is sufficient under Code § 18.2-47 to establish abduction.” Walker v. Commonwealth, 272
Va. 511, 517 (2006). In enacting Code § 18.2-47, the General Assembly “focused on control over
the victim as opposed to mere movement of the victim.” Walker v. Commonwealth, 74 Va. App.
475, 490 (2022). “[A]n abduction occurs when a perpetrator, by means of ‘force, intimidation or
deception, and without legal justification or excuse,’ exercises control over the victim ‘with the
intent to deprive such [victim] of his personal liberty.’” Id. (second alteration in original) (quoting
Code § 18.2-47(A)).
“Intent is the purpose formed in a person’s mind and may be, and frequently is, shown by
the circumstances. It is a state of mind which may be proved by a person’s conduct or by his
statements.” Mason v. Commonwealth, 49 Va. App. 39, 45 (2006) (quoting Haywood v.
Commonwealth, 20 Va. App. 562, 565 (1995)). “Whether the required intent exists is generally a
question for the trier of fact.” Crawley v. Commonwealth, 25 Va. App. 768, 773 (1997) (quoting
Nobles v. Commonwealth, 218 Va. 548, 551 (1977)).
“Intimidation is defined as ‘[u]nlawful coercion; extortion; duress; putting in fear.’” Bivins
v. Commonwealth, 19 Va. App. 750, 752 (1995) (alteration in original) (quoting Black’s Law
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Dictionary 831 (6th ed. 1990)). “Intimidation, . . . 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.”
Sutton v. Commonwealth, 228 Va. 654, 663 (1985). “Intimidation may be caused by the imposition
of psychological pressure on one who, under the circumstances, is vulnerable and susceptible to
such pressure.” Id.By shutting and locking the bedroom door shortly before he physically attacked C.A.,
Andrade demonstrated his intent to deprive C.A. of her personal liberty by detaining her in the
room. Not only did Andrade lock the door, impeding C.A.’s escape while he beat her, but he also
held C.A. down by her neck until she was able to push him off with her feet. Andrade then
continued to punch C.A. on her head, face, shoulder, and arms, all the while yelling, “you’re never
going to disrespect me again, this is the last time you’re going to disrespect me. You’re going to
learn your lesson.” Notably, at the time of the attack, C.A. was only five feet one inch tall and
weighed 103 pounds.4 When A.A. came to check on her mother, it was Andrade who opened the
door and allowed A.A. entry into the room, and it was Andrade who shut and locked the door again
when A.A. left. C.A. testified that she did not follow A.A. out of the room because Andrade was
between her and the door, thus preventing her from leaving, and because she was afraid for herself
and the risk of harm to her children. C.A.’s whispered plea for A.A. to call 911 highlighted C.A.’s
fear that she could not leave the bedroom without the assistance of outside help. On these facts, it
was reasonable for the jury to conclude that Andrade was angry with C.A. for her perceived
disrespect of him at the party, so he intentionally locked her in the bedroom and prevented her from
leaving until she learned her “lesson.” In other words, he abducted her.
4
The jury had the opportunity to observe Andrade’s stature and size, which the arrest
warrants describe as 6 feet tall and 180 pounds.
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Because the evidence sufficiently proved that Andrade by force, intimidation, or deception,
and without legal justification or excuse, detained C.A. in the bedroom with the intent to deprive her
of her personal liberty, the trial court did not err in denying the motion to strike the abduction
charge.
2. Rape
“If any person has sexual intercourse with a complaining witness, whether or not his or her
spouse . . . and such act is accomplished . . . against the complaining witness’s will, by force, threat
or intimidation . . . he or she shall be guilty of rape.” Code § 18.2-61(A). “The issue of whether the
crime was committed by ‘force, threat or intimidation’ is a question of fact.” Bondi v.
Commonwealth, 70 Va. App. 79, 88 (2019). “A factfinder may consider ‘the victim’s age, the
relative size of the defendant and victim, the familial relationship between the defendant and victim,
and the vulnerable position of the victim’ in evaluating whether an act was accomplished by
intimidation.” Id. at 90 (quoting Commonwealth v. Bower, 264 Va. 41, 46 (2002)). “Intimidation
may occur without threats.” Sutton, 228 Va. at 663. In such cases, the fear of bodily harm “must
derive from some conduct or statement of the accused.” Sabol v. Commonwealth, 37 Va. App. 9, 18
(2001). On the other hand, a threat is an “expression of an intention to do bodily harm.” Id. at 17
(quoting Morse v. Commonwealth, 17 Va. App. 627, 634 (1994)). That is, a threat is “an overt
expression, by words or conduct, of a present intention to commit an immediate act of violence or
force against the victim.” Id. at 18 (quoting Bivins v. Commonwealth, 19 Va. App. 750, 752
(1995)).
“In conducting our analysis, we are mindful that ‘determining the credibility of the
witnesses and the weight afforded the testimony of those witnesses are matters left to the trier of
fact, who has the ability to hear and see them as they testify.’” Raspberry v. Commonwealth, 71
Va. App. 19, 29 (2019) (quoting Miller v. Commonwealth, 64 Va. App. 527, 536 (2015)).
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Moreover, “a conviction for rape and other sexual offenses may be sustained solely upon the
uncorroborated testimony of the victim.” Poole v. Commonwealth, 73 Va. App. 357, 368 (2021)
(quoting Wilson v. Commonwealth, 46 Va. App. 73, 87 (2005)). “Because sexual offenses are
typically clandestine in nature, seldom involving witnesses to the offense except the perpetrator and
the victim, a requirement of corroboration would result in most sex offenses going unpunished.”
Garland v. Commonwealth, 8 Va. App. 189, 191 (1989). We defer to the jury’s findings of fact
“unless plainly wrong or without evidence to support them.” Branch v. Commonwealth, 60
Va. App. 540, 548 (2012) (quoting McGee v. Commonwealth, 25 Va. App. 193, 198 (1997) (en
banc)). Additionally, “[i]n 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.” Flanagan v. Commonwealth, 58 Va. App. 681, 702 (2011) (quoting Marable v.
Commonwealth, 27 Va. App. 505, 509-10 (1998)).
In this case, just before the sexual intercourse, Andrade beat C.A. so severely that she was
ultimately hospitalized with broken bones in her orbital socket. During that beating, Andrade
repeatedly told her that she was never going to disrespect him again, and he swore that she was
going to “learn [her] lesson.” After their infant daughter awoke, crying “like never before,”
Andrade allowed C.A. to soothe the child back to sleep, but not before telling her “you know what
you have to do afterwards.” C.A., crying and in pain from Andrade’s many blows to her face, knew
that she would have to do “whatever he wanted sexually from [her].” Thereafter, Andrade ordered
C.A. to get on top of him and cautioned “you know what you have to do. And if you don’t do it, I’ll
keep hitting you.” At that time, C.A. “fear[ed] for [her] life.” Andrade also repeatedly told C.A.
that “if you don’t do it right[,] this is the last time you’re going to do it.” (Emphasis added). C.A.
believed Andrade was “going to try to kill [her].” C.A. testified repeatedly that she did not want to
have sex with Andrade and only did so out of fear that he would continue to hurt her.
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C.A.’s testimony established that Andrade both threatened and intimidated her into
complying with his demand for sex. C.A. repeatedly stated that she feared any refusal to comply
with Andrade’s demands for sexual intercourse would subject her to further bodily injury. That fear
was reasonable based on the multiple acts of violence Andrade committed during the marriage and
the severe beating C.A. had just endured. “Submission through fear to sexual intercourse is not
consent.” Sutton, 228 Va. at 663. In rendering its verdicts, the jury clearly rejected, as it was
entitled, Andrade’s version of events and concluded that the act of sexual intercourse was not
consensual. We do not disturb the jury’s credibility findings on appeal. It is well settled that
“[w]here credibility issues are resolved by the jury in favor of the Commonwealth, those findings
will not be disturbed on appeal unless plainly wrong.” Smith v. Commonwealth, 56 Va. App. 711,
718 (2010).
C.A.’s testimony, believed by the jury and corroborated by other evidence in the record,
including the many photographs of her injuries and the respective testimony of the other witnesses,
provided sufficient evidence for the trial court to conclude that Andrade forced C.A. into engaging
in sexual intercourse against her will by threatening her with further violence and intimidating her
into submission. Thus, the trial court did not err in refusing to strike the indictment.
III. CONCLUSION
The trial court did not abuse its discretion in allowing C.A. to testify that Andrade
committed prior acts of physical violence toward her during their marriage, inasmuch as that
evidence was probative of the element of intimidation and was not unfairly prejudicial.
Additionally, the trial court did not err in finding the evidence sufficiently established that Andrade
committed rape and abduction beyond a reasonable doubt. Therefore, we affirm the convictions.
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We remand this case to the circuit court solely to correct the typographical errors in the conviction
and sentencing orders.
Affirmed and remanded.
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