Bennie James Howard v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Elder, Bray and Annunziata
Argued at Norfolk, Virginia
BENNIE JAMES HOWARD OPINION BY
v. 	Record No. 2529-93-1 	JUDGE LARRY G. ELDER
DECEMBER 29, 1995
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
William F. Rutherford, Judge
Duncan R. St. Clair, III; Charles A. Johnson
(St. Clair & Johnson, P.C., on briefs), for
appellant.
Marla Graff Decker, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Bennie James Howard (appellant) appeals his conviction for
rape in violation of Code § 18.2-61. 	Appellant contends:
(1) the trial court erred in failing to grant his motion to
strike, which he made at the end of the Commonwealth's case-in-
chief; (2) insufficient evidence supported his rape conviction;
and (3) the trial court erred in failing to grant his motion for
a new trial based on after-discovered evidence. 	Because
insufficient credible evidence existed from which the trial court
could have found appellant guilty, we reverse and dismiss the
conviction.
I.
FACTS
On December 2, 1992, the fifteen-year-old victim left school
and accompanied Allen Elliott, a friend, and a group of young

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people, whose ages ranged from fourteen to at least eighteen, to
an apartment described in testimony as "Snap's apartment." 	The
group arrived at Snap's apartment at approximately 9:30 a.m. 	The
group that formed at Snap's apartment consisted of at least
eleven women and men, including Allen Elliott, Mike Brockman,
Lester Campbell, and appellant. 	The group socialized in the
apartment, discussed sexual topics, and drank alcohol identified
as "Mad Dog" from bottles and/or cups. 	Although the victim had
tasted beer before December 2, 1992, she had never consumed any
alcoholic beverages.
During the party, the victim went into the bathroom several
times. 	Lester Campbell, appellant, and Mike Brockman entered the
bathroom on one occasion while she was in there. 	When asked to
testify specifically as to what events transpired in the
bathroom, the victim said:
I don't remember. 	I remember . . . standing up against
the bathroom wall and Lester was like kissing me, and
then all I remember is really laying on the floor and
Lester was having sex with me and he was saying like,
["]oh, this feels so good["] and things like that, and
then later on I scooted my head up into the corner of
the toilet and the bath tub and I was laying there and
I don't remember that much.
The victim testified she did not think she attempted to "get
up" during the incident. 	The victim then described appellant's
entry into the bathroom:
[Appellant] came in like into the bathroom, that is--I
really don't--I don't know if he came in after or
before Mike, but I know he came in. . . . 	He--I
remember laying on the floor and I had my legs closed,

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and I remember opening--all I really remember is . . .
[appellant] opened my legs and he started having sex
with me he leaned overtop of me and he like--I don't
know what he said. 	He like said something and I really
don't remember that much.
The victim testified that appellant placed his penis inside her
vagina and that when someone attempted to initiate oral sex with
her, she bit that person's penis. 	The victim admitted that she
never specifically told appellant she did not wish to have sex
with him, and she stated that no one physically restrained her.
When these sexual encounters ended, the victim left the
bathroom wearing only a white t-shirt. 	She remained on the couch
for a short time, calling for Allen Elliott to join her in
another sexual encounter, and then returned to the bathroom. 	At
this time, Mike Brockman had sexual intercourse with the victim.
The victim again left the bathroom, exited Snap's apartment
wearing only her t-shirt, and knocked on a neighbor's door. 	The
neighbor testified that she heard a knock at her door, followed
by faint pleas for help. 	When the neighbor opened her front
door, the victim collapsed into her apartment and onto the floor,
where she began to vomit. 	After paramedics arrived, the victim
told them, "it hurts, it hurts." 	When the victim's mother and
father arrived at the neighbor's apartment and asked the victim
what had transpired and who was responsible, she replied,
"Bennie."
After being transported to the hospital, the victim was
still unable to recognize her parents. 	The victim cried, moaned,

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and passed "in and out of consciousness." 	An attending physician
testified the victim "smelled of alcohol," "was lethargic," "was
difficult to arouse to verbal stimuli," and had a serum blood
alcohol level of .12 milligrams per deciliter. 	The victim
testified that she was "drunk" at the party, was taking
"antidepressant" medication that day, did not have a condition
which rendered her unable to recall events, and "felt fine"
before she drank the alcohol at the party.
Mike Brockman testified that the victim flirted with
appellant, Lester Campbell, and himself; that she willingly had
sex with him; that appellant requested him to assist in removing
the victim's pants; and that he observed appellant on top of the
victim while the victim had her hands around appellant.
Appellant testified that the victim flirted with him, which
was verified by several witnesses present at Snap's apartment.
Appellant testified that the victim led him into the bathroom, an
event also observed by several witnesses. 	Appellant accompanied
the victim to the bathroom after she told him she wanted to make
love, a statement overheard by a person present at the party.
Appellant testified that the victim removed his penis from his
pants and fondled it, and he had intercourse with the victim
after Mike Brockman removed her pants. 	Appellant further
testified that the victim never said "one way or another" whether
he could have sex with her, and that she told him "to take it
easy" when they were about to begin intercourse. 	Following

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intercourse, appellant asked the victim if she would give him a
"blow job," but she said "no."
Ashley Alligood, another person at the party, testified that
she heard the victim giggling while she was in the bathroom.
Letha Elliott, another person at the party, testified that while
the victim and Lester Campbell were in the bathroom, she
overheard Lester Campbell ask the victim if she wanted him "to
stop," to which the victim "said no."
Investigator Lawrence Hockman of the Norfolk Police
testified that appellant made a sworn statement on December 5,
1992, in which he denied having sexual intercourse with the
victim. 	Appellant admitted having consensual sex with the victim
after being confronted with a sworn statement from Lester
Campbell disputing his original story.
At the end of the Commonwealth's case-in-chief, appellant
moved to strike the evidence on the ground of insufficiency; the
trial court overruled such motion. 	Appellant then presented
evidence but did not make another motion to strike the evidence
or make a motion to set aside the verdict. 	Closing arguments
were not transcribed and are not included in the record. 	The
trial court found appellant guilty of rape and sentenced him on
December 16, 1993 to twenty-five years in prison, with fifteen
years suspended.
On February 17, 1994, appellant filed a motion to set aside
the verdict and to grant a new trial based on after-discovered

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evidence that called the victim's veracity into question. 	The
trial court held a hearing on the matter on March 17, 1994 and
denied appellant's motion on March 22, 1994, "after hearing said
motions and arguments of counsel, and for reasons stated in the
record."

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II.
MOTION TO STRIKE EVIDENCE/SUFFICIENCY
Appellant asserts that the trial court erred in finding,
based upon the evidence presented, that appellant raped the
victim, who claimed to be physically helpless. 	We agree.
First, the Commonwealth correctly argues that, as a
procedural matter, "when [appellant] elect[ed] to present
evidence on his behalf, he waive[d] the right to stand on his
motion to strike the evidence made at the conclusion of the
Commonwealth's case." 	McQuinn v. Commonwealth, 20 Va. App. 753,
755, 460 S.E.2d 624, 625 (1995)(en banc)(citing Spangler v.
Commonwealth, 188 Va. 436, 438, 50 S.E.2d 265, 266 (1948)); see
White v. Commonwealth, 3 Va. App. 231, 233, 348 S.E.2d 866, 867
(1986); Rule 5A:18.
This Court has held that in a bench trial, where a defendant
wishes to preserve a sufficiency motion after presenting
evidence, the defendant must make a motion to strike at the
conclusion of all the evidence, present an appropriate argument
in summation, or make a motion to set aside the verdict. 	See
Campbell v. Commonwealth, 12 Va. App. 476, 478-81, 405 S.E.2d 1,
1-3 (1991)(en banc); McGee v. Commonwealth, 4 Va. App. 317, 321,
357 S.E.2d 738, 739-40 (1987); Rule 5A:18. 	In this case, after
appellant presented evidence, he failed to renew his motion to
strike or move to set aside the verdict. 	The trial transcript
does not contain closing arguments.

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Nevertheless, the sufficiency issue was preserved for
appeal. 	The record reveals that after counsel for each side
presented closing arguments, the trial court, sitting without a
jury, stated that it needed to recess court until a further day
to allow it the opportunity to examine the issue of the victim's
physical helplessness. 	Specifically, the trial court stated:
Gentlemen, I have gone over my notes. 	I have received
the statements. 	There are certain other things and
certain matters that I need to look into. 	I am going
to take this under advisement until Tuesday afternoon.
If either of you desire to present any matters on
physical helplessness, of course I know what the
definition is. 	At the time of the offense the victim
in this case had a condition which rendered her unable
to communicate an unwillingness to engage in sex and
the defendant knew or should have known that
definition. 	I know the definition. 	So if you don't
mind, both of you give me the definition, but I will
give you a decision on this matter at four o'clock on
Tuesday afternoon.
We believe the purpose of Rule 5A:18 was met in this bench
trial. 	The trial court took the sufficiency issue under
advisement in order to consider it intelligently and, if
necessary, to take corrective action to avoid unnecessary
appeals, reversals, and mistrials. 	Head v. Commonwealth, 3 Va.
App. 163, 167, 348 S.E.2d 423, 426 (1986).
Reaching the merits of the issue, the Commonwealth did not
prove beyond a reasonable doubt that the victim was physically
helpless. 	Code § 18.2-61(a)(ii) states:
If any person has sexual intercourse with a complaining
witness who is not his or her spouse . . . and such
act is accomplished . . . through the use of the
complaining witness's mental incapacity or physical

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helplessness . . . he or she shall be guilty of rape.
(Emphasis added.)
Code § 18.2-67.10(4) defines "physical helplessness" as:
unconsciousness or any other condition existing at the
time of an offense under this article which otherwise
rendered the complaining witness physically unable to
communicate an unwillingness to act and about which the
accused knew or should have known.
(Emphasis added.)
Viewing the evidence in the light most favorable to the
Commonwealth, the appropriate standard of review, we believe the
Commonwealth did not prove its contention that the victim was so
drunk that she could not give her consent to the acts committed
by appellant. 	Miller v. Commonwealth, 181 Va. 906, 910, 27
S.E.2d 57, 58 (1943). 	A plethora of facts supports this
conclusion. 	The victim specifically testified that when someone
attempted to initiate oral sex with her, she bit that person's
penis. 	The victim also refused to consent to appellant's request
to engage in oral sex, even though she did not refuse his
attempts at sexual intercourse. 	Witnesses testified that the
victim initiated sexual relations with various men at the party,
specifically asking the appellant to "make love to [her]."
Witnesses described the victim as sitting on appellant's lap,
kissing him, and discussing sexual relations before leading him
into the bathroom. 	Prior to engaging in sexual intercourse, the
victim told appellant to "take it easy." 	After engaging in
intercourse with appellant, the victim then initiated further

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sexual contact with other men. 	A witness testified that while
the victim and Lester Campbell were in the bathroom shortly
before appellant entered the bathroom, she overheard Campbell ask
the victim if she wanted him "to stop," to which the victim "said
no."
After engaging in sexual relations with appellant, the
victim testified that she left the bathroom and sat on the couch.
At that point, the victim testified she was "yelling for Allen
. . . I was saying that I wanted Allen." 	Subsequently, the
victim admitted going into the bathroom with Mike Brockman and
Allen Elliott and having sexual intercourse with Mike Brockman.
These actions are consistent with the behavior of someone
who exercised volition over her decisions and actions, negating
any reasonable inference of "being physically unable to
communicate" as required by the statute. 	Diminished capacity or
poor judgment is not the issue in this case. 	The question is
whether the victim's use of alcohol made her "physically unable
to communicate." 	The trial court, confronted with conflicting
testimony, was required to make appropriate credibility
determinations. 	However, the victim's testimony did not
contradict the testimony furnished by numerous unimpeached
defense witnesses. 	In fact, the victim, who testified that she
could not remember many of the details of the alleged rape,
testified consistently in many respects with the defense
witnesses.

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The Commonwealth asserts that the trial court reasonably
could have inferred physical helplessness from the fact the
victim went to a neighbor's apartment shortly after the alleged
incident, partially clothed, before vomiting and collapsing. 	The
Commonwealth highlights the fact that the victim could not
recognize her parents for a period of hours and passed in and out
of consciousness after being taken to the hospital, where doctors
determined she was intoxicated. 	However, assuming the victim was
intoxicated to the point of being physically unable to
communicate at the time she exited the apartment, this does not
prove she was intoxicated to the same degree when she engaged in
sexual intercourse with appellant. 	Even in conjunction with
other evidence, the Commonwealth's case was not strong enough to
prove appellant's guilt beyond a reasonable doubt. 	Compare
Woodward v. Commonwealth, 12 Va. App. 118, 402 S.E.2d 244
(1991)(affirming the appellant's rape conviction where the victim
was physically helpless because she was asleep at the time of
intercourse). 	In so holding, we find the following admonition
appropriate: "[t]he conduct of [appellant] cannot be condoned.
It was disgraceful. 	It was enough to shame one steeped in moral
infamy. 	But he was not tried for that. 	Rape was the charge laid
at his door and the Commonwealth's evidence fail[ed] to sustain
it." 	Miller, 181 Va. at 910, 27 S.E.2d at 58.
III.
AFTER-DISCOVERED EVIDENCE

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Because we reverse on the sufficiency issue, we need not
address appellant's argument regarding after-discovered evidence.
We therefore reverse the conviction based on the foregoing
reasons.
Reversed and dismissed.