Opinion
Record No. 2250-91-3
July 13, 1993
FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY KENNETH I. DEVORE, JUDGE.
Deborah Caldwell-Bono, for appellant.
Michael T. Judge, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellant.
Present: Chief Judge Moon, Judges Barrow and Koontz.
Argued at Salem, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Brian Keith Atkins seeks reversal of his convictions of attempted rape in violation of Code § 18.2-67.5(A), and malicious wounding in violation of Code § 18.2-51. We hold that the evidence was sufficient to sustain appellant's conviction for attempted rape and that appellant is barred from raising other issues on appeal that he failed to object to at trial. Rule 5A:18.
On September 15, 1990, Sarah Winters and her boyfriend James Keister were each driving their respective vehicles home during the early morning hours. The two came upon a party on the road and Winters stopped to talk with someone she knew. Keister left his vehicle first, and Winters intended to follow him. At this time, appellant entered Winters' car through the passenger door.
Appellant grabbed Winters by her hair and told her that if she did not take appellant to Christiansburg, he would kill her. Winters followed appellant's directions. She drove away and eventually, at appellant's demand, pulled off the road into an area surrounded by trees. After she stopped the car, she opened her door and attempted to run. Appellant grabbed her by the hair, jerked her around to him, and tried to pull her shorts down. A struggle ensued.
During the struggle, appellant removed Winters' shirt. Appellant had her pinned to the ground and was jerking and pulling Winters' head by the hair. He ordered her to perform fellatio on him or he would kill her. Appellant placed his penis in her mouth.
Winters poked appellant in the eye attempting to escape. Appellant stated "you'll die now, bitch." Appellant hit Winters in the face while he had her pinned to the ground and then began to choke her with both hands around her neck. Appellant stopped his assault on Winters when she began to spit blood. At that point, he jumped off Winters and said "just forget it." Winters ran away.
I.
Appellant contends that the evidence was insufficient to support the jury's verdict of attempted rape. We disagree.
On appeal, we review the evidence in the 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 Commonwealth must prove for attempted rape (1) that the defendant had the intent to commit rape; and (2) that the defendant did some direct, ineffectual act toward the consummation of the rape, greater than just mere preparation, but without committing the crime itself. Chittum v. Commonwealth, 211 Va. 12, 15, 174 S.E.2d 779, 781 (1970).
The evidence indicating intent to rape is that during the sexual assault appellant pulled Winters' shirt off and attempted to pull her shorts off. See Fortune v. Commonwealth, 14 Va. App. 225, 229, 416 S.E.2d 25, 27 (1992).
The evidence also established acts beyond the mere preparation.Martin v. Commonwealth, 195 Va. 1107, 81 S.E.2d 574 (1954). Here, appellant abducted the victim, detained her by force when she attempted to flee, attempted to remove her shorts, removed her blouse, and beat her.
We hold these acts indicate a direct, ineffectual act toward the consummation of the rape, and that the evidence was sufficient to sustain the jury's verdict of attempted rape.
II.
Appellant also contends for the first time on appeal that (1) the trial court improperly commented on the credibility of the victim in the presence of the jury; (2) appellant's due process rights were violated by the trial court basing its sentence on the fact that the jury had acquitted appellant of sodomy; (3) the evidence was insufficient to establish intent to maim, disfigure, or kill; (4) the trial court abdicated its duty in failing to consider all the factors pertaining to sentencing and in simply imposing the sentence recommended by the jury; and (5) the trial court erred when clarifying the jury instructions, during the jury's deliberations.
We hold the above issues which were not raised in the trial court are barred from our consideration. Rule 5A:18;Gardner v. Commonwealth, 3 Va. App. 418, 423, 350 S.E.2d 229, 232 (1986).
Affirmed.