Herbert Lewis, Sr. v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
HERBERT LEWIS, SR.
v. 	Record No. 2045-94-1 	MEMORANDUM OPINION*
BY JUDGE JOSEPH E. BAKER
COMMONWEALTH OF VIRGINIA 	FEBRUARY 6, 1996
FROM THE CIRCUIT COURT OF ACCOMACK COUNTY
Glen A. Tyler, Judge
Carl H. Bundick for appellant.
Kathleen B. Martin, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on brief),
for appellee.
Herbert Lewis, Sr. (appellant) appeals from a judgment of
the Circuit Court of Accomack County (trial court) that approved
his jury convictions for two counts of rape and one count of
attempted rape. 	He contends that the trial court erroneously
admitted evidence of his flight from officers and further erred
by refusing instructions he offered relating to "aggravated
sexual battery" and "sexual battery." 	Finding no error, we
affirm the convictions.
Upon familiar principles, we view 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).
Because the parties are well advised concerning the evidence, we
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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state only the facts necessary to an understanding of this
opinion.
On April 8, 1993, appellant was arrested on three counts of
rape alleged to have occurred on Chincoteague Island, following
which he was released on bond requiring his appearance in
district court on April 13, 1993. 	On that date, appellant failed
to appear. 	Pursuant to a capias issued, members of the police
attempted to stop appellant when they sighted him on a causeway,
appearing to flee to the mainland. 	Appellant failed to accede to
police warnings and during the chase by the police, appellant
drove his motor vehicle at speeds "in excess of eighty miles an
hour," finally stopping only after he had run off the road.
At trial, the victim testified that after being permitted to
enter her house, appellant, without her permission, pushed her to
the floor, threatened her, and raped her three times between
10:30 p.m. and daybreak the next morning. 	The victim denied
having consensual sex with appellant. 	A doctor testified that
his examination of the victim's vaginal entrance showed trauma
and disclosed sperm. 	The trauma, the doctor said, resembled that
seen in younger women who had been "gang raped."
Appellant's defense was that the victim had consented to
have sexual intercourse but that he was unable to perform due to
medical conditions from which he suffers.
Evidence that the accused fled to avoid arrest is admissible
to show consciousness of guilt. 	See Bowie v. Commonwealth, 184

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Va. 381, 392, 35 S.E.2d 345, 350 (1945), and cases there cited.
Here, the evidence of appellant's flight clearly shows his
intention to elude the police and avoid arrest on the capias.
Although the evidence incidentally disclosed that appellant may
also have been guilty of another crime, it still may be shown to
prove the consciousness of guilt. 	See Langhorne v. Commonwealth,
13 Va. App. 97, 102, 409 S.E.2d 476, 479 (1991). 	The purpose of
the evidence concerning the manner in which appellant was driving
was not to show he drove recklessly, but rather to show his
intent to avoid trial on the rape charges.
At trial, appellant's defense was not only that he did not
commit the rapes, but that he was incapable of committing those
offenses. 	It is clear that appellant had to be convicted of
rape, attempted rape, or set free, as no other offenses are shown
by the record. 	For that reason, it was not error to refuse
instructions that dealt with sexual battery as a lesser-included
offense of the crime of rape. 	See Bennett v. Commonwealth, 236
Va. 448, 470-71, 374 S.E.2d 303, 319 (1988), cert. denied, 490
U.S. 1028 (1989); Frye v. Commonwealth, 231 Va. 370, 389, 345
S.E.2d 267, 281 (1986).
For the reasons stated, the judgment of the trial court is
affirmed.
Affirmed.