Daniel Wade Inge v Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Humphreys and Retired Judge Kulp∗
Argued at Richmond, Virginia
DANIEL WADE INGE
MEMORANDUM OPINION∗∗ BY
v. 	Record No. 1628-98-2 	JUDGE JAMES W. BENTON, JR.
JUNE 20, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
William R. Shelton, Judge
David B. Hargett (Joseph D. Morrissey;
Morrissey & Hershner, PLC, on brief), for
appellant.
Linwood T. Wells, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
∗ Retired Judge James E. Kulp took part in the consideration
of this case by designation pursuant to Code § 17.1-400,
recodifying Code § 17-116.01.
∗∗ Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
A jury convicted Daniel Wade Inge of rape. 	See Code
§ 18.2-61(A). 	He contends the evidence was insufficient to
support the conviction. 	We disagree and affirm the conviction.
The complaining witness testified that she went to a hotel
room at night with her friend Christa Rosenberg to watch a fight
on television. 	When they arrived, Inge, who was Rosenberg's
boyfriend, and Jason Matthews were in the room. 	The complaining

witness, who was eighteen years old, drank one or two bottles of
beer that she brought to the room. 	She also drank "a pretty good
amount" of whiskey, estimating "probably six or seven" cups of
whiskey in two and a half hours. 	All four of them were drinking
alcoholic beverages.
During the evening, the complaining witness became ill from
alcohol consumption and vomited. 	While the complaining witness
was lying on the bed and vomiting, Rosenberg said that she had to
leave because her mother paged her. 	The complaining witness
testified that she asked Rosenberg to stay and that she did not
remember when Rosenberg left. 	After someone instructed her to
remove her shirt because she had vomited on it, she could not
remember anything else until she woke and realized that Inge "had
[her] hand on his penis." 	After she pulled her hand away, Inge
"tried to get [her] to get on top of him." 	She testified that she
was unable to do so because she "couldn't move." 	Inge then turned
her onto her stomach and began having sexual intercourse with her.
She testified that she did not physically resist because she was
unable to move and "didn't know what to do." 	She testified,
however, that she told him: 	"I don't want to get pregnant"; "I
didn't want to do it" and "I wanted to go home." 	She also
testified that she was "in and out [of consciousness]" and did not
know what was happening to her. 	She recalled that Matthews "was
on the bed beside [them] passed out."
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After the sexual intercourse ceased, she got off the bed and
fell, hitting her head on a bureau. 	She then attempted to make a
phone call, but Inge took the phone and instructed her to give him
the number that she wished to call. 	Inge dialed a number and
reported to her that no one answered. 	When she again attempted to
use the phone, Inge unplugged it. 	After she dressed, Inge drove
her home.
When she arrived home, she called her boyfriend and her
sister. 	Her sister arrived at her house and called the police.
The nurse who examined the complaining witness that night at the
hospital testified that she had no bruising or scratches on her
outward body. 	The nurse did find, however, that the complaining
witness had some "light reddened abrasions on both labia majora."
She testified those were consistent with the complaining witness'
account but also consistent with some acts of consensual
intercourse.
Rosenberg testified that when she left to go home, the
complaining witness was still fully awake and conscious and "waved
good bye" to her. 	She testified that the complaining witness had
vomited but was able to engage in conversation. 	The day after
these events, Inge told her it was Matthews who had sexual
intercourse with the complaining witness.
Matthews testified that during that evening the complaining
witness "laid on top of [him] . . . and fondled [him]." 	When the
complaining witness vomited, he removed her shirt because it was
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soiled and rinsed it. 	He testified that, aside from being sick,
she was coherent. 	He also testified that he declined an offer of
oral sex from the complaining witness. 	He testified that he went
to sleep on the bed, later woke, and saw the complaining witness
"on top of [Inge]" having sexual intercourse. 	Matthews said he
"was pretty much out of it . . . and went right back to sleep."
A detective testified that when he interviewed Inge, Inge
denied having "sex" with the complaining witness and said Matthews
"had sex with [her]." 	Later, after having been given Miranda
warnings, Inge said he, Matthews, and the complaining witness
engaged in a drinking contest, which caused her to get sick. 	Inge
said he had "consensual sex" with the complaining witness after
Matthews went to sleep. 	Inge recounted that she rolled over,
mounted him, and engaged in intercourse. 	He said Matthews woke up
and smiled as this was occurring. 	Inge said he then "rolled her
over onto her stomach" and continued to have sexual intercourse.
Inge also told the detective that Matthews "had said he would
. . . cover for [Inge] if [Rosenberg] had ever found out that they
. . . had had consensual sex."
In Inge's defense, a man testified that when he was dating
the complaining witness she flirted with Inge. 	Rosenberg also
testified again and said the complaining witness offered to
perform oral sex on Matthews if he took "a triple shot" of
whiskey. 	She also testified that the complaining witness later
"crawled up in [Matthews'] lap."
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Inge testified that the complaining witness asked him to have
sexual intercourse with her. 	Inge testified that he did not force
the complaining witness to have sexual intercourse with him, did
not threaten her, and did not intimidate her in any way. 	He also
testified that during the sexual intercourse, she was able to move
and, contrary to her testimony, was on top of him. 	Inge testified
that she never said "stop" or "no" during the sexual intercourse.
He further testified that Matthews had agreed to tell Rosenberg
that Matthews had "had sex with [the complaining witness]."
On this evidence, the jury convicted Inge of rape.
II.
In pertinent part, Code § 18.2-61 provides as follows:
A. 	If any person has sexual intercourse
with a complaining witness who is not his or
her spouse or causes a complaining witness,
whether or not his or her spouse, to engage
in sexual intercourse with any other person
and such act is accomplished (i) against the
complaining witness's will, by force, threat
or intimidation of or against the
complaining witness or another person, or
(ii) through the use of the complaining
witness's mental incapacity or physical
helplessness, or (iii) with a child under
age thirteen as the victim, he or she shall
be guilty of rape.
When, as in this case, the evidence contains conflicting
testimony, "the jury . . . [must] determine the credibility of
the witnesses, by 'weighing such factors as the appearance and
manner of the witness on the stand, their intelligence, their
opportunity for knowing the truth and observing the things about
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which they testify, their interest in the outcome of the case,
their bias, and if any had been shown, their prior inconsistent
statements.'" 	Love v. Commonwealth, 18 Va. App. 84, 89-90, 441
S.E.2d 709, 713 (1994) (citation omitted). 	Therefore, when an
issue is raised on appeal concerning the sufficiency of the
evidence, we review the evidence in the light most favorable to
the Commonwealth, granting to that evidence all reasonable
inferences fairly deducible therefrom. 	See Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
Viewed in the light of these principles, the evidence was
sufficient for the jury to find beyond a reasonable doubt that
the complaining witness' version of the events was credible.
Although the record contains extensive conflicting evidence, the
jury decided those factual questions adversely to Inge. 	Indeed,
the complaining witness' testimony alone, if believed by the
jury, was sufficient to support the conviction. 	See Snyder v.
Commonwealth, 220 Va. 792, 796, 263 S.E.2d 55, 57 (1980); Love,
18 Va. App. at 90, 441 S.E.2d at 713.
The evidence as presented by the complaining witness
established that, when she was inebriated and unable to move,
Inge tried to put her on top of him, then turned her onto her
stomach, and had sexual intercourse with her. 	From this
evidence, the jury could find beyond a reasonable doubt the
element of force necessary to support the conviction.
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To determine whether the element of force
has been proved in the crimes of
non-statutory rape and sodomy by force, the
inquiry is whether the act or acts were
effected with or without the victim's
consent. 	The issue is: 	Was the victim
willing or unwilling? 	In that connection,
there must be evidence of "some array or
show of force in form sufficient to overcome
resistance, but the woman is not required to
resist to the utmost of her physical
strength, if she reasonably believes
resistance would be useless and result in
serious bodily injury to her." 	And the
amount of resistance which may be required
necessarily depends on the circumstances of
each case, taking into consideration the
relative physical condition of the
participants and the degree of force
manifested. 	Indeed, this court has said
that "no positive resistance" by the victim
need be demonstrated if it appears that the
crime was effected without her consent.
Jones v. Commonwealth, 219 Va. 983, 986, 252 S.E.2d 370, 372
(1979).
Inge testified that he engaged in sexual intercourse with
the complaining witness but contends that it was consensual.
The complaining witness testified, however, that when these
events were occurring, she "said I didn't want to . . . [,] said
I didn't want to get pregnant . . . [, and] said I wanted to go
home." 	That evidence, believed by the jury, was sufficient to
prove beyond a reasonable doubt that the sexual intercourse was
committed against her will and without her consent.
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Accordingly, we hold that the evidence was sufficient to
prove the elements of rape, and we affirm the conviction.
Affirmed.
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