George Robert Newby, Jr. v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Senior Judge Cole
Argued at Richmond, Virginia
GEORGE ROBERT NEWBY, JR.
MEMORANDUM OPINION * BY
v. Record No. 2473-95-2 JUDGE LARRY G. ELDER
JULY 1, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Herbert C. Gill, Jr., Judge
John B. Boatwright, III (Boatwright & Linka,
on briefs), for appellant.
Richard B. Smith, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
A jury convicted George Robert Newby of rape, forcible
sodomy, and animate object sexual penetration. See Code
§§ 18.2-61, 18.2-67.1, and 18.2-67.2. On appeal, Newby argues
that the trial judge erred in (1) denying Newby's motion to
strike the evidence on the charge of forcible sodomy, (2) denying
Newby's motion for a mistrial, and (3) refusing to inform the
jury, in response to a question posed by the jury, that any
sentence imposed would not be subject to parole. For the reasons
that follow, we affirm the convictions.
I.
At trial, the victim testified that on the first night that
she began working as a waitress and bartender at Crossflite
*
Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
Restaurant, Newby, a customer, was drinking beer and playing
pool. During the course of the evening, he conversed with the
victim about her family and he made several comments about her
appearance. At closing time when another female employee asked
customers to leave, Newby and two other customers were still in
the bar. After Newby and the other customers left, the victim
and the other employee began cleaning and closing the bar. When
the other employee had difficulty locking the front door, she
opened the door and was startled to find Newby leaning against
the wall outside. Newby offered to help and reentered the
restaurant. When the two female employees finished cleaning,
Newby was still present. Newby walked the victim to her car and
asked for a ride home.
The victim agreed and drove following Newby's directions.
When she entered the driveway on a nearby street, Newby "brought
his [left] arm . . . around [her] neck." As she tried to pull
away, Newby tightened his grip, threatened to kill her, and put a
sharp blade across her nose. Newby then pushed her out of the
car and into the woods. Newby made her undress, threw her
clothing into a ditch, and then "put his penis in [her] vagina."
The victim testified that because she "was very dry and
unlubricated," Newby removed his penis from her and "put his
mouth on [her] vaginal area and . . . drooled." The victim
further specified that Newby's mouth "was on [her] vulva area."
After these events, Newby stood up, pulled his pants up, and
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threw the victim's jeans to her. Newby told her that if she told
anybody he would kill her and her children. After the victim
repeatedly assured Newby that she would not tell anyone, Newby
stated, "This isn't the first time that I raped and you better
not be the first one to tell."
When Newby told the victim that she could leave, she started
her car and drove into a ditch. Newby went to the car and began
to push the car out of the ditch. When they could not move the
car, Newby left, and the victim walked to a gas station. She
called one of her female friends and told her that she had been
raped. When her friend arrived, a police officer was with her.
The officer called an ambulance to take the victim to the
hospital.
At the conclusion of the Commonwealth's case-in-chief, the
trial judge denied Newby's motion to strike the Commonwealth's
evidence on the charge of forcible sodomy. Newby then testified
that the victim offered him a ride home on her own initiative,
stopped the car, walked with him to a ravine area, and
voluntarily engaged in mutual kissing and fondling. Newby
testified that they engaged in consensual sexual intercourse. He
further testified that while doing so he "did lick [her] vaginal
area and [he] did penetrate her with his [penis] and have sex,
but at no time did she say, 'No,' did she say, 'stop,' or
anything."
On cross-examination, the Commonwealth's attorney asked
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Newby, "[Y]ou have, in fact, categorized yourself to other people
as a rapist, is that correct?" Before Newby responded, his
attorney objected and requested a mistrial. After hearing
argument, the trial judge overruled the motion for a mistrial and
instructed the jury to disregard the question.
At the conclusion of all the evidence, the jury found Newby
guilty of rape, animate object sexual penetration, and forcible
sodomy. When the jury was deliberating regarding the proper
sentence to impose, the jury asked the judge the following
questions: "Does the no parole law apply here?" and "If not,
when will he be eligible for parole?" Newby's attorney requested
the judge to instruct the jury regarding the unavailability of
parole. The trial judge denied that request and told the jury
that "[t]he only way that I can answer those questions is . . .
that you cannot concern yourself with what may happen afterwards.
You must impose what sentence you feel is just under the
circumstances." The jury imposed a sentence of thirty years for
the rape conviction, thirty years for the forcible sodomy
conviction, and twenty-five years for the animate object sexual
penetration conviction.
II.
Newby argues that the evidence was insufficient to prove
forcible sodomy because the testimony failed to establish
penetration of the victim's sexual organs. We disagree.
"[T]he issue of penetration is a question for the jury upon
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the evidence in the case and . . . the penetration that must be
shown need be only slight." Ryan v. Commonwealth, 219 Va. 439,
444, 247 S.E.2d 698, 702 (1978). "[P]enetration of any portion
of the vulva, which encompasses the 'external parts of the female
sex organs considered as a whole' and includes, beginning with
the outermost parts, the labia majora, labia minora, hymen,
vaginal opening and vagina, is sufficient to show penetration."
Love v. Commonwealth, 18 Va. App. 84, 88, 441 S.E.2d 709, 712
(1994) (citation omitted).
"On appeal, we must view the evidence in the light most
favorable to the Commonwealth." Id. at 87, 441 S.E.2d at 711.
The victim testified that Newby "put his mouth on [her] vaginal
area" and "on [her] vulva area." In addition, Newby testified
that he "did lick [her] vaginal area." Based on the evidence,
the jury could have found that during Newby's protracted assault
of the victim and effort to moisten her, his mouth penetrated her
vulva. Indeed, the victim testified that his mouth was on her
vulva and that she could feel heat emanating from his mouth. We
cannot say that this evidence was insufficient, as a matter of
law, to prove penetration. See Ryan, 219 Va. at 441-45, 247
S.E.2d at 700-02 (finding the evidence sufficient where the
victim testified that the defendant licked her vagina).
III.
Newby argues that the trial judge erred in denying his
motion for a mistrial after the Commonwealth's attorney asked
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Newby, on cross-examination, whether Newby had "categorized
[him]self to other people as a rapist." We disagree.
"Whether to grant a mistrial is a matter resting within the
sound discretion of a trial [judge]." Wright v. Commonwealth,
245 Va. 177, 188, 427 S.E.2d 379, 387 (1993), vacated on other
grounds, 512 U.S. 1217 (1994).
Whether improper evidence is so prejudicial
as to require a mistrial is a question of
fact to be resolved by the trial [judge] in
each particular case. Unless this Court can
say that the trial [judge's] resolution of
that question was wrong as a matter of law,
it will not disturb the trial [judge's]
decision on appeal. A judgment will not be
reversed for the improper admission of
evidence that a [judge] subsequently directs
a jury to disregard because juries are
presumed to follow prompt, explicit, and
curative instructions. When the evidence is
so prejudicial that it "probably remained on
the minds of the jury and influenced their
verdict," however, the judgment will be
reversed on appeal.
Beavers v. Commonwealth, 245 Va. 268, 280, 427 S.E.2d 411, 420
(1993) (citations omitted).
In the argument on the motion for a mistrial, the
Commonwealth's attorney represented that Newby had earlier
authored a letter in which he described himself as a rapist and
made other statements. The trial judge ruled that any testimony
about the document was inadmissible on grounds of relevance and
remoteness. Under the circumstances of this case, we cannot say
that the question was "so prejudicial as to require a mistrial."
Id. Significantly, Newby did not answer the question.
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Moreover, the judge immediately gave a curative instruction that
admonished the jury "to disregard the . . . question." Under
these circumstances, we hold that the trial judge did not abuse
his discretion in concluding that a mistrial was unwarranted.
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IV.
Newby next argues that the trial judge erred in refusing to
inform the jury, in response to the jury's question, that Newby
would be ineligible for parole. We disagree.
A panel of this Court, which was presented with a strikingly
similar factual scenario, has already held that a trial judge
does not commit error by refusing to inform the jury that the
defendant is not eligible for parole. See Mosby v. Commonwealth,
24 Va. App. 284, 482 S.E.2d 72 (1997). We are bound by this
ruling and accordingly hold that the trial judge did not commit
error on this ground.
Accordingly, we affirm the convictions.
Affirmed.
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Benton, J., concurring and dissenting.
I concur in Parts I, II, and III of the majority opinion.
For the reasons more particularly stated in my dissenting opinion
in Walker v. Commonwealth, __ Va. App. ___, ___, ___ S.E.2d ___,
___ (1997) (Benton, J., dissenting), I do not concur in Part IV.
While deciding the proper sentence to impose upon Newby, the
jury asked the trial judge, "Does the no parole law apply here?"
and "If not, when will he be eligible for parole?" 1 The jury's
effort to determine Newby's parole eligibility conclusively
establishes that the issue of parole had an impact on the jury's
sentencing decision.
It is error not to instruct the jury when the jury may make
findings based upon a mistaken belief of the law. See Martin v.
Commonwealth, 218 Va. 4, 7, 235 S.E.2d 304, 305 (1977) (per
curiam). After the jury asked about parole, the judge knew the
jury was unaware that Newby was ineligible for parole. Under
these circumstances, I would hold that the trial judge erred in
refusing to answer the jury's question. See Walker, ___ Va. App.
at ___, ___ S.E.2d at ___ (Benton, J., dissenting) ("The courts
should not permit jurors to sentence based upon the erroneous
belief that parole release still exists.").
To exacerbate matters, the trial judge responded to the
1
"The essence of parole is release from prison, before the
completion of sentence, on the condition that the prisoner abide
by certain rules during the balance of the sentence." Morrissey
v. Brewer, 408 U.S. 471, 477 (1972).
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question by telling the jury, "you cannot concern yourself with
what may happen afterwards. You must impose what sentence you
feel is just under the circumstances." By referring to parole as
something that "might happen," the judge implied that parole was,
in fact, available.
It is true, as the State points out, that
the trial court admonished the jury that "you
are instructed not to consider parole" and
that parole "is not a proper issue for your
consideration." Far from ensuring that the
jury was not misled, however, this
instruction actually suggested that parole
was available but that the jury, for some
unstated reason, should be blind to this
fact. . . . While juries ordinarily are
presumed to follow the court's instructions,
we have recognized that in some circumstances
"the risk that the jury will not, or cannot,
follow instructions is so great, and the
consequences of failure so vital to the
defendant, that the practical and human
limitations of the jury system cannot be
ignored."
Simmons v. South Carolina, 512 U.S. 154, 170-71, 114 S. Ct. 2187,
2197 (1994) (plurality opinion) (citations omitted). The trial
judge's response to the jury's question did not aid in
alleviating the confusion, and in fact, it may have misled the
jury. Thus, I would hold that the trial judge erred by providing
a jury instruction that was misleading. Cf. Blevins v.
Commonwealth, 209 Va. 622, 628, 166 S.E.2d 325, 330 (1969).
I would therefore remand the case for re-sentencing in
accordance with Code § 19.2-295.1.
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