Herbert Lewis, Sr. v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: February 6, 1996
• Docket: 2045941
• Status: Unpublished

Opinion

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. 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

- 2 - 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.

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