Opinion
Record No. 0148-92-2
August 10, 1993
FROM THE CIRCUIT COURT OF HENRICO COUNTY GEORGE F. TIDEY, JUDGE.
Andrea C. Long (David E. Boone; Boone, Beale, Carpenter Cosby, on brief), for appellant.
Leah A. Darron, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Judges Coleman, Willis and Elder.
Argued at Richmond, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Dwain O'Connor Sharpe appeals from his convictions for attempted rape and forcible sodomy. On appeal, he argues that the trial court erred in refusing his proffered jury instruction on misdemeanor sexual battery as a lesser-included offense of both the attempted rape and forcible sodomy charges. The Commonwealth contends that appellant did not properly preserve his assignment of error for appeal. For the reasons set forth below, we affirm appellant's convictions.
The parties are familiar with the record; consequently, this memorandum opinion discusses only those facts necessary to a disposition of the issues before the Court.
The Commonwealth contends that appellant failed to preserve his objection to the court's refusal to give the lesser-included offense instruction because the record contains no proffered instructions nor does it contain any reasons for the court's failure to give them. Apparently, all discussions concerning the instructions were held off the record. The only relevant dialogue in the record is as follows:
[COUNSEL FOR DEFENDANT/APPELLANT]: [T]his is the instruction on consent to sexual activity, which she admitted on that night. I'd ask that be given. I understand the Court's ruling is not to give it. Also, Judge, I have asked the Court to instruct on the lesser included offense of sexual battery on the instructions for both sodomy and attempted rape.
THE COURT: All right, bring the jury in. . . .
The court then instructed the jury on the elements of forcible sodomy, sodomy, attempted rape, and sexual battery. It did not, however, instruct the jury on sexual battery as a lesser-included offense of attempted rape or forcible sodomy.
Assuming, without deciding, that the issue has been preserved for appeal, we affirm the convictions for the reasons that follow.
On the merits of this appeal, we must determine whether the trial court erred in failing to instruct the jury on sexual battery as a lesser-included offense of both attempted rape and forcible sodomy. We are guided by the principle that the accused, on request, is entitled to have the jury instructed on a lesser-included offense that is supported by the evidence: "If any credible evidence in the record supports a proffered instruction on a lesser-included offence, failure to give the instruction is reversible error." Brandau v. Commonwealth, ___ Va. App. ___, ___, 430 S.E.2d 563, 564 (1993) (quoting Boone v. Commonwealth, 14 Va. App. 130, 132, 415 S.E.2d 250, 251 (1992)). If the court determines that the offense covered by the proffered instruction is a lesser-included offense of the one charged, see Taylor v. Commonwealth, 11 Va. App. 649, 651, 400 S.E.2d 794, 795 (1991), it must next determine whether the "instruction . . . [is] supported by more than a mere scintilla of evidence." Brandau, ___ Va. App. at ___, 430 S.E.2d at 564 (quoting Boone, 14 Va. App. at 132, 415 S.E.2d at 251). In considering this latter issue on appeal, we must "view the evidence pertinent to [the] refused instruction in the light most favorable to [appellant]." Martin v. Commonwealth, 13 Va. App. 524, 526, 414 S.E.2d 401, 401 (1992) (en banc) (citingBlondel v. Hays, 241 Va. 467, 469, 403 S.E.2d 340, 341 (1991)).
We consider this issue first in the context of the attempted rape charge, holding that appellant was not entitled to an instruction on sexual battery because it is not a lesser-included offense of attempted rape.
A lesser included offense is one "composed entirely of the elements that are also elements of the greater offense." . . . [I]f a crime is a lesser included offense . . ., the commission of the greater offense must invariably also be a commission of the lesser offense. . . .
The determination of what offenses are necessarily included lesser offenses of the crime charged is based on the fundamental nature of the offenses involved, not on the particular facts of a specific case or the language of a given indictment. . . . Even if one offense is committed in almost all cases of the commission of another offense, it is not a necessarily included lesser offense of the other one. Neither the facts charged in the indictment nor those proved at trial determine whether an offense is a necessarily included offense; the determination, instead, is made by examining the elements of the crimes that must be proved in order to sustain a conviction.
Taylor, 11 Va. App. at 652-53, 400 S.E.2d at 795-96 (citations and footnotes omitted). A sexual battery is not a lesser-included offense of attempted rape; it requires proof of a touching whereas attempted rape does not. See Howard v. Commonwealth, 221 Va. 904, 908-09, 275 S.E.2d 602, 604-05 (1981) (holding that the taking of indecent liberties with a child is not a lesser-included offense of attempted sodomy because evidence of feeling the victim's breast with lascivious intent was a necessary element to prove an indecent liberties offense but was not required to prove attempted sodomy).
As the jury was instructed, a conviction for sexual battery requires proof that the accused sexually abused the victim against her will, and by force, threat or intimidation. Code § 18.2-67.4. Code § 18.2-67.10 defines sexual abuse as follows:
an act committed with the intent to sexually molest, arouse, or gratify any person, where: (a) The accused intentionally touches the [victim's] intimate parts or clothing covering such intimate parts; (b) The accused forces the [victim] to touch the accused's, the [victim's] own, or another person's intimate parts or clothing covering such intimate parts; (c) The accused forces another person to touch the [victim's] intimate parts or clothing covering such intimate parts.
A conviction for attempted rape requires proof that the accused intended to have sexual intercourse with the victim, against her will and by force, threat or intimidation, and that he committed some direct act which amounted to the beginning of the actual commission of the rape. Code § 18.2-61(A); Wright v. Commonwealth, 245 Va. 177, 193, 427 S.E.2d 379, 390 (1993).
A hypothetical based on the facts of Granberrry v. Commonwealth, 184 Va. 674, 36 S.E.2d 547 (1946), in which the defendant was convicted of attempted rape, clearly illustrates this point. In Granberry, the defendant abducted the prosecutrix at knifepoint and told her to lie down, pull up her dress and pull down her pants. While the accused was kneeling, engaged in unbuttoning his own pants, she jumped up and ran away. Id. at 676, 36 S.E.2d at 547. Although the Supreme Court held that the evidence was sufficient to support defendant's conviction for attempted rape, id. at 678, 36 S.E.2d at 548, it clearly would not have been sufficient to support a conviction for sexual battery because no touching took place.
Under the evidence in this case, by contrast, the jury could have found that appellant lacked the intent to rape but that he nevertheless committed a sexual battery by rubbing his penis on the victim's vagina. As discussed above, however, this is not the appropriate standard for determining whether appellant was entitled to the sexual battery instruction. Because an act of attempted rape is not always a sexual battery, the trial court did not err in refusing to instruct the jury on sexual battery as a lesser-included offense of attempted rape.
We also hold that the trial court did not err in refusing to instruct the jury on sexual battery as a lesser-included offense of forcible sodomy, but for different reasons. We assume without deciding that sexual battery is a lesser-included offense of forcible sodomy under the test outlined above, but we hold that the record contained no evidence to support such an instruction. Lofton testified that appellant penetrated her vagina with his tongue. This testimony described appellant's objective actions. Had appellant testified or offered some other form of evidence that he engaged in oral-vaginal contact but that no penetration occurred, a factual dispute would have existed, and he would have been entitled to an instruction on sexual battery as a lesser-included offense. His testimony, contradicted only by Lofton's testimony, would clearly have provided the evidence necessary to support the giving of the requested instruction. Although we must view the evidence relating to the proffered instruction in the light most favorable to appellant, he offered no evidence on that issue, and the evidence in the record is therefore susceptible to only one interpretation. The record does not contain the evidence necessary to support the giving of an instruction on sexual battery as a lesser-included offense of forcible sodomy.
This stands in marked contrast to a situation in which the disputed element between the primary and lesser-included offenses is the intent of the accused. Where the objective actions of the accused neither prove nor disprove his intent, his failure to testify does not mandate the conclusion that he acted with the intent necessary to support a conviction for the primary offense. Where the facts viewed in the light most favorable to the accused would allow the jury to draw either of two conclusions regarding his intent, more than a scintilla of evidence exists, and he is entitled to have the jury instructed on the lesser-included offense. See Martin v. Commonwealth, 13 Va. App. 524, 527, 414 S.E.2d 401, 402 (1992) (en banc) (holding that defendant was entitled to instruction on lesser-included offense where intent in waving knife at police officer was in issue).
For the aforementioned reasons, we affirm appellant's attempted rape and forcible sodomy convictions.
Affirmed.