COURT OF APPEALS OF VIRGINIA

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COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Annunziata and Overton
Argued at Richmond, Virginia

KEITH LORENZO JONES
MEMORANDUM OPINION BY
v. Record No. 0033-96-2 JUDGE ROSEMARIE ANNUNZIATA
FEBRUARY 25, 1997
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY
Charles L. McCormick, III, Judge

Theodore Tondrowski (Bowen & Bowen, on
brief), for appellant.

Margaret Ann B. Walker, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.

Following a bench trial, appellant, Keith Lorenzo Jones, was
convicted of assault and battery and attempted forcible sodomy.
On appeal he contests the sufficiency of the evidence to support
each conviction. For the reasons that follow, we affirm.
When considering the sufficiency of the evidence on appeal
in a criminal case, this Court views the evidence in a light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). "The
weight which should be given to evidence and whether the
testimony of a witness is credible are questions which the fact
finder must decide." Bridgeman v. Commonwealth, 3 Va. App. 523,
528, 351 S.E.2d 598, 601 (1986). On review, this Court does not
substitute its own judgment for that of the trier of fact. Cable
v. Commonwealth, 243 Va. 236, 239, 415 S.E.2d 218, 220 (1992).
Instead, the trial court's judgment will not be set aside unless
it appears that the judgment is plainly wrong or without
supporting evidence. Code 8.01-680; Josephs v. Commonwealth,
10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) (en banc).
The victim, H., who was fifteen years old at the time of the
alleged incident, testified that she and a friend, S.,
accompanied appellant and another man, Herbert, to a motel room.
Although H. had met appellant only that night, the two kissed in
Herbert's truck as the group drove to the motel. Inside the
room, S. and Herbert began kissing. H. exited the room,
intending to leave the two alone. Appellant followed. H.
entered Herbert's truck; appellant climbed in behind her. The
two talked, and appellant tried to kiss H. H. "pulled away and
. . . said no. I can't do this anymore. I'm sorry. I just
can't. I've got a boyfriend. I shouldn't have done it in the
first place." Appellant proceeded and attempted to pull down
H.'s pants. H. pulled her pants up, telling appellant, "[N]o.
I'm not going to do anything." Appellant persisted and pulled
H.'s pants down to her knees, still trying to kiss her despite
H.'s continued protestations. Appellant pried H.'s legs apart,
put his head between them and touched his tongue to her vagina.
H. continued to resist, but appellant managed to position himself
on top of her. At that point, H. was crying, repeatedly telling
appellant "no." Appellant inserted his penis in H.'s vagina.
Appellant removed himself from H. when S. and Herbert approached.
Both S. and Herbert testified that H. was crying when they
reached the truck. S. further testified that H. told her she and
appellant had sex but that she had said "no." Appellant admitted
having sexual intercourse with H. but testified that she
consented. He asserted that H. cried because she felt guilty,
thinking of her boyfriend.
At the close of the evidence the court stated,
I think at the very least, at the very least,
this defendant is guilty of aggrivated [sic]
sexual battery on this girl. I think it at
the very least. I think that's giving him
the benefit of the doubt that I can give him.
And I think also he's guilty of the attempted
act of sodomy on her. So I'm going to find
that this defendant is guilty of those two
offenses.
Appellant filed a motion to reconsider, arguing in part that
aggravated sexual battery is not a lesser included offense of
rape. The court agreed and reduced the conviction to misdemeanor
assault and battery. The attempted forcible sodomy conviction
stood. Appellant raised no further objection.
Generally speaking, assault and battery is a non-consensual,
unlawful touching. See Johnson v. Commonwealth, 5 Va. App. 529,
534-35, 365 S.E.2d 237, 240 (1988); Banovitch v. Commonwealth,
196 Va. 210, 219, 83 S.E.2d 369, 374-75 (1954); II Virginia Model
Jury Instructions, Criminal 38.300 ("An assault and battery is
any bodily hurt, however slight, done to another in an angry,
rude or vengeful manner."). Forcible sodomy is, inter alia, the
act of cunnilingus accomplished against the will of the
complaining witness and by force, threat or intimidation. Code
18.2-67.1. An attempt is an "unfinished crime, composed of
. . . the intent to commit the crime and the doing of some direct
act toward its consummation, but falling short of the
accomplishment of the ultimate design. See Johnson v.
Commonwealth, 209 Va. 291, 293, 163 S.E.2d 570, 573 (1968).
Appellant contends that, in refusing to convict him of rape,
the trial court resolved the issue of consent in his favor,
because the fact of intercourse was not in doubt (i.e., consent
was the only element of the crime in dispute). It follows,
appellant argues, that if the court found H. consented to
intercourse, it had no basis to convict him of assault and
battery. By extension, he also argues that if H. consented to
intercourse, it is implausible that she did not also consent to
the alleged act of sodomy.
Appellant made no objection to the trial court's reduction
of his conviction to misdemeanor assault and battery on any
grounds, much less on the ground he apparently argues here; viz.,
that the trial court would have convicted him of rape had it
found no consent. Accordingly, that argument is procedurally
barred on appeal. Rule 5A:18.
We find no basis for applying the ends of justice exception,
because we find that the record reflects sufficient evidence to
support appellant's convictions for assault and battery and
attempted forcible sodomy beyond a reasonable doubt. The trial
court's finding that the evidence was sufficient to support a
conviction for aggravated sexual battery resolves the issue of
consent. See Code 18.2-67.3 ("An accused shall be guilty of
aggravated sexual battery if he . . . sexually abuses the
complaining witness . . . against [her] will.").
Accordingly, we hold that the evidence was sufficient to
prove beyond a reasonable doubt the elements of each offense, and
we affirm appellant's convictions.
Affirmed.

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