Opinion
Record No. 0237-94-1
Decided: April 4, 1995
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH, L. Cleaves Manning, Judge
William R. Brown for appellant.
Leah A. Darron, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Judges Barrow, Koontz and Elder
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Terry Wayne Millard (appellant) appeals his convictions for two counts of rape in violation of Code Sec. 18.2-61; one count of forcible oral sodomy in violation of Code Sec. 18.2-67.1; one count of forcible anal sodomy in violation of Code Sec. 18.2-67.1; and one count of parental child neglect in violation of Code Sec. 18.2-371.1. Appellant contends (1) that the trial court erred in denying his motion to strike on the charge of parental child neglect or abuse and (2) that the evidence was insufficient to support his five convictions. We hold that appellant preserved the sufficiency of the evidence issue only on the charge of parental child neglect or abuse, but because the evidence was sufficient to support a finding of guilt, we affirm his convictions.
The facts viewed in the light most favorable to the Commonwealth show that from January to March of 1992, the eight-year-old victim and her four-year-old brother lived with their mother, Elizabeth Millard, and their stepfather (appellant) in Portsmouth. According to the victim's testimony, beginning in January of 1992, Elizabeth Millard would wake her during the night and order her to come to her mother's bedroom and lie down on the bed. At trial the victim recounted specific incidents that included being vaginally penetrated and orally and anally sodomized by appellant.
Appellant was tried before a jury in the Circuit Court for the City of Portsmouth from November 29, 1993 to November 30, 1993. At the conclusion of the Commonwealth's evidence, appellant made a motion to strike pertaining to the charge of parental child neglect or abuse. Appellant specifically stated that (1) no evidence established that he was responsible for the victim's care; (2) no evidence established that any actions endangered the victim's health; and (3) there was insufficient corroborative evidence of the victim's allegations. The court overruled this motion. Appellant made no argument that the evidence was insufficient to prove the rape or sodomy charges. After appellant was found guilty on all counts, the court overruled his motion to set aside the jury verdict as "contrary to the law and the weight of the evidence" and sentenced appellant.
Initially, we hold that the motion to set aside the jury verdict as "contrary to the law and the weight of the evidence" did not preserve the sufficiency issue as to the rape and sodomy charges and we will not consider that argument on appeal. Rule 5A:18. However, we hold that appellant properly preserved for appellate review the issue of whether the trial court erred in denying his motion to strike the charge of parental child neglect or abuse. At the conclusion of the Commonwealth's case in chief, appellant made a motion to strike and articulated specific grounds pertaining to the charge of parental child neglect. The trial court overruled this motion.
Under the facts of this case, appellant's motion to strike as to the charge of parental neglect or abuse at the conclusion of the Commonwealth's case made it unnecessary for appellant to make a motion to strike the verdict after the conclusion of his case. See Code Sec. 8.01-384 ("No party, after having made an objection or motion known to the court, shall be required to make such objection or motion again in order to preserve his right to appeal . . . ."); Cotter v. Commonwealth, 19 Va. App. 382, 385, 452 S.E.2d 20, 21-22 (1994) (same).
The same result is reached under McQuinn v. Commonwealth, 19 Va. App. 418, 451 S.E.2d 704 (1994), which is currently scheduled for a rehearing en banc. In McQuinn, we stated that when a defendant presents conflicting evidence after making a motion to strike the evidence, reconsideration of the motion, once denied, is unnecessary. Id. at 422, 451 S.E.2d at 706.
In reaching our decision on the merits, we hold that there was sufficient evidence for the trial court to deny appellant's motion to strike on the charge of parental child neglect. On appeal, "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). "The jury's verdict will not be disturbed on appeal unless it is plainly wrong or without evidence to support it." Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988) (citations omitted).
There was sufficient evidence to show that appellant was responsible for the victim's care and that his actions against her endangered her life and health. Appellant also personally testified that he considered himself a "father" to the victim and her brother, treated them as if they were his own children, and that they called him "dad."
Finally, "[i]t is well settled in Virginia that the credibility of witnesses and the weight to be given their testimony are questions exclusively for the jury." Coppola v. Commonwealth, 220 Va. 243, 252, 257 S.E.2d 797, 803 (1979), cert. denied, 444 U.S. 1103 (1980); Myers v. Commonwealth, 11 Va. App. 634, 635, 400 S.E.2d 803, 803 (1991). It was within the province of the jury to credit the victim's testimony and to disbelieve appellant's testimony and other evidence.
For these reasons, we affirm the judgment of the trial court.
Affirmed.