COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Annunziata and Senior Judge Cole Argued at Richmond, Virginia
KEHINDE A. OGUNGBADE MEMORANDUM OPINION * BY v. Record No. 0991-97-2 JUDGE ROSEMARIE ANNUNZIATA MAY 26, 1998 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY William R. Shelton, Judge Andrea C. Long (Boone, Beale, Cosby & Long, on brief), for appellant.
Leah A. Darron, Assistant Attorney General (Richard Cullen, Attorney General, on brief), for appellee.
The appellant, Kehinde "Kenny" Ogungbade, appeals his
conviction of sexual battery in violation of Code § 18.2-67.4.
Appellant cites as error the trial court's refusal to give his
proffered jury instruction on consent. He further claims the
evidence was insufficient to support his conviction. We
disagree, and affirm.
Appellant was manager of a Crown service station and
convenience store in Chesterfield County, Virginia. The
complainant was one of his employees, and, at the time of the
incident, was assistant manager.
On July 4, 1996, complainant worked the second shift,
beginning at 2:00 p.m. and ending at 10:00 p.m. Before leaving
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. work, complainant was responsible for counting the money received
from sales during her shift. She accordingly went into the
office located at the back of the store to complete the task. As
she sat at a desk facing away from the door to count the money,
appellant entered the office and shut the door. While
complainant was in the office with appellant, a woman knocked on
the office door, and conversed briefly with appellant.
Complainant denied that appellant opened the door to speak with
the woman. After the woman knocked on the door, appellant remained in
the office between fifteen and twenty minutes. Appellant walked
up behind complainant, reached around her, and began fondling her
breasts and trying to open her blouse. Complainant moved her
arms upward to remove the appellant's hand from her breasts.
Appellant then reached for complainant's crotch and
simultaneously lifted her in her chair to unzip her pants.
Complainant held onto the desk and the top of her pants
struggling to keep them on. When a button on complainant's pants
popped off during the struggle, the appellant pulled
complainant's pants and underwear down. He removed his penis
from his pants and began rubbing it against her buttocks. He
attempted anal and vaginal intercourse several times and
ultimately ejaculated on the office floor. Appellant wiped the
semen from the floor with his jean jacket which hung on the back
of the office door and left.
2 After appellant left the office, complainant finished
counting the money, put it in the safe and left work. She met
her roommate and told her what had happened. Complainant was
trembling and on the verge of tears, so her roommate drove her
home.
Because complainant was in no condition to place the call
herself, her roommate telephoned the police on her behalf at
12:30 a.m. Other than evidence that items on the office desk had
been pushed around, there was no appearance of a struggle in the
room where the incident occurred. Police found evidence of semen
on the office floor as well as on appellant's jacket, and pubic
hairs were recovered from the floor in the location where
complainant had been assaulted. Appellant did not testify. Appellant introduced testimony
from a witness that, during the time appellant and complainant
were in the office, she knocked on the office door and spoke to
appellant. This witness testified that appellant opened the door
to speak to her, and when appellant answered the door he was
dressed, and that complainant was seated at the desk with stacks
of money in front of her. According to her testimony,
complainant left the office twenty minutes later and bought
cigarettes and gas before departing from the premises, evidencing
nothing unusual.
I.
Consent Instruction
3 Appellant argues that the trial court erred in refusing to
give an instruction on the issue of consent. At trial, appellant
offered the following instruction: Consent by [complainant] is an absolute bar to conviction of sexual battery. If after consideration of all the evidence you have a reasonable doubt as to whether [complainant] consented to sexual battery with [appellant], then you shall find him not guilty.
In refusing to give the instruction, the court reasoned that the
evidence supported the conclusion that the incident had occurred,
or that it had not, but that there was no evidence that
complainant had consented to a sexual touching. At the conference on jury instructions, appellant's counsel
acknowledged that "there is no direct evidence of consent." In
support of his argument on appeal, appellant contends that there
was evidence that complainant failed to struggle to repel
appellant and that she neither told appellant to stop nor yelled
out for help, even when a third party came to the door.
Where "consent [is] vital to [the] defense and [is]
supported by sufficient evidence to make it a jury issue," it is
error to refuse to give an instruction on the principle of
consent. Mery v. Commonwealth, 12 Va. App. 821, 826, 407 S.E.2d
18, 21 (1991). Conversely, the court does not err by refusing an
instruction where there is no evidence to support it. Eaton v.
Commonwealth, 240 Va. 236, 255, 397 S.E.2d 385, 396 (1990); Woodward v. Commonwealth, 12 Va. App. 118, 119, 402 S.E.2d 244,
244 (1991) (citing Bennett v. Commonwealth, 8 Va. App. 228, 234,
4 380 S.E.2d 17, 21 (1989)). "An instruction must be supported by
more than a scintilla of evidence." Hatcher v. Commonwealth, 218
Va. 811, 814, 241 S.E.2d 756, 758 (1978) (citing Gibson v.
Commonwealth, 216 Va. 412, 417, 219 S.E.2d 845, 849 (1975)).
"[T]he weight of the credible evidence that will amount to more
than a mere scintilla of evidence is a matter to be resolved on a
case-by-case basis." Brandau v. Commonwealth, 16 Va. App. 408,
412, 430 S.E.2d 563, 565 (1993). In determining whether evidence
amounts to more than a scintilla, "we must look at the evidence
in the light most favorable to [appellant]." Foster v.
Commonwealth, 13 Va. App. 380, 383, 412 S.E.2d 198, 200 (1991).
Code § 18.2-67.7 provides that "the Commonwealth need not
demonstrate that the complaining witness cried out or physically
resisted the accused in order to convict the accused of an
offense" under Code § 18.2-67.4. See Farish v. Commonwealth, 2
Va. App. 627, 631, 346 S.E.2d 736, 738-39 (1986). The same
statute, however, makes equally clear that "the absence of such
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COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Annunziata and Senior Judge Cole Argued at Richmond, Virginia
KEHINDE A. OGUNGBADE MEMORANDUM OPINION * BY v. Record No. 0991-97-2 JUDGE ROSEMARIE ANNUNZIATA MAY 26, 1998 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY William R. Shelton, Judge Andrea C. Long (Boone, Beale, Cosby & Long, on brief), for appellant.
Leah A. Darron, Assistant Attorney General (Richard Cullen, Attorney General, on brief), for appellee.
The appellant, Kehinde "Kenny" Ogungbade, appeals his
conviction of sexual battery in violation of Code § 18.2-67.4.
Appellant cites as error the trial court's refusal to give his
proffered jury instruction on consent. He further claims the
evidence was insufficient to support his conviction. We
disagree, and affirm.
Appellant was manager of a Crown service station and
convenience store in Chesterfield County, Virginia. The
complainant was one of his employees, and, at the time of the
incident, was assistant manager.
On July 4, 1996, complainant worked the second shift,
beginning at 2:00 p.m. and ending at 10:00 p.m. Before leaving
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. work, complainant was responsible for counting the money received
from sales during her shift. She accordingly went into the
office located at the back of the store to complete the task. As
she sat at a desk facing away from the door to count the money,
appellant entered the office and shut the door. While
complainant was in the office with appellant, a woman knocked on
the office door, and conversed briefly with appellant.
Complainant denied that appellant opened the door to speak with
the woman. After the woman knocked on the door, appellant remained in
the office between fifteen and twenty minutes. Appellant walked
up behind complainant, reached around her, and began fondling her
breasts and trying to open her blouse. Complainant moved her
arms upward to remove the appellant's hand from her breasts.
Appellant then reached for complainant's crotch and
simultaneously lifted her in her chair to unzip her pants.
Complainant held onto the desk and the top of her pants
struggling to keep them on. When a button on complainant's pants
popped off during the struggle, the appellant pulled
complainant's pants and underwear down. He removed his penis
from his pants and began rubbing it against her buttocks. He
attempted anal and vaginal intercourse several times and
ultimately ejaculated on the office floor. Appellant wiped the
semen from the floor with his jean jacket which hung on the back
of the office door and left.
2 After appellant left the office, complainant finished
counting the money, put it in the safe and left work. She met
her roommate and told her what had happened. Complainant was
trembling and on the verge of tears, so her roommate drove her
home.
Because complainant was in no condition to place the call
herself, her roommate telephoned the police on her behalf at
12:30 a.m. Other than evidence that items on the office desk had
been pushed around, there was no appearance of a struggle in the
room where the incident occurred. Police found evidence of semen
on the office floor as well as on appellant's jacket, and pubic
hairs were recovered from the floor in the location where
complainant had been assaulted. Appellant did not testify. Appellant introduced testimony
from a witness that, during the time appellant and complainant
were in the office, she knocked on the office door and spoke to
appellant. This witness testified that appellant opened the door
to speak to her, and when appellant answered the door he was
dressed, and that complainant was seated at the desk with stacks
of money in front of her. According to her testimony,
complainant left the office twenty minutes later and bought
cigarettes and gas before departing from the premises, evidencing
nothing unusual.
I.
Consent Instruction
3 Appellant argues that the trial court erred in refusing to
give an instruction on the issue of consent. At trial, appellant
offered the following instruction: Consent by [complainant] is an absolute bar to conviction of sexual battery. If after consideration of all the evidence you have a reasonable doubt as to whether [complainant] consented to sexual battery with [appellant], then you shall find him not guilty.
In refusing to give the instruction, the court reasoned that the
evidence supported the conclusion that the incident had occurred,
or that it had not, but that there was no evidence that
complainant had consented to a sexual touching. At the conference on jury instructions, appellant's counsel
acknowledged that "there is no direct evidence of consent." In
support of his argument on appeal, appellant contends that there
was evidence that complainant failed to struggle to repel
appellant and that she neither told appellant to stop nor yelled
out for help, even when a third party came to the door.
Where "consent [is] vital to [the] defense and [is]
supported by sufficient evidence to make it a jury issue," it is
error to refuse to give an instruction on the principle of
consent. Mery v. Commonwealth, 12 Va. App. 821, 826, 407 S.E.2d
18, 21 (1991). Conversely, the court does not err by refusing an
instruction where there is no evidence to support it. Eaton v.
Commonwealth, 240 Va. 236, 255, 397 S.E.2d 385, 396 (1990); Woodward v. Commonwealth, 12 Va. App. 118, 119, 402 S.E.2d 244,
244 (1991) (citing Bennett v. Commonwealth, 8 Va. App. 228, 234,
4 380 S.E.2d 17, 21 (1989)). "An instruction must be supported by
more than a scintilla of evidence." Hatcher v. Commonwealth, 218
Va. 811, 814, 241 S.E.2d 756, 758 (1978) (citing Gibson v.
Commonwealth, 216 Va. 412, 417, 219 S.E.2d 845, 849 (1975)).
"[T]he weight of the credible evidence that will amount to more
than a mere scintilla of evidence is a matter to be resolved on a
case-by-case basis." Brandau v. Commonwealth, 16 Va. App. 408,
412, 430 S.E.2d 563, 565 (1993). In determining whether evidence
amounts to more than a scintilla, "we must look at the evidence
in the light most favorable to [appellant]." Foster v.
Commonwealth, 13 Va. App. 380, 383, 412 S.E.2d 198, 200 (1991).
Code § 18.2-67.7 provides that "the Commonwealth need not
demonstrate that the complaining witness cried out or physically
resisted the accused in order to convict the accused of an
offense" under Code § 18.2-67.4. See Farish v. Commonwealth, 2
Va. App. 627, 631, 346 S.E.2d 736, 738-39 (1986). The same
statute, however, makes equally clear that "the absence of such
resistance may be considered when relevant to show that the act
alleged was not against the will of the complaining witness."
Code § 18.2-67.7. We have interpreted this statute to "allow[]
the defendant to use lack of resistance to buttress his consent
defense." Farish, 2 Va. App. at 632, 346 S.E.2d at 739.
Appellant points to his witness' testimony that appellant
opened the door of the office to converse with her, and argues
that complainant's failure to seek help during this time is
5 evidence of complainant's consent. Appellant's witness, however,
testified that when appellant opened the door to speak to her,
appellant was fully clothed and complainant was seated at the
desk in front of the money. Viewed in the light most favorable
to appellant, this testimony supports the conclusion that the
assault did not occur, but does not support the conclusion that
complainant consented to sexual touching.
In addition, "[t]he determination whether the minimum
quantum of credible evidence supports a particular proposition is
largely a factor of determining the weight of that evidence in
comparison to the weight of the other credible evidence that
negates the proposition in question." Brandau, 16 Va. App. at
411-12, 430 S.E.2d at 565. Contrary to appellant's argument, all
the evidence presented on the issue indicates that complainant
did not consent. Complainant testified that she had rebuffed
appellant's advances for at least a year and a half prior to the
night of the offense. Complainant testified that when appellant
began to fondle her, she moved her arms and elbows to block his
access to her body and move his arms away from her. She also
explained that when appellant tried to pull her out of her chair
and pull her pants down, she held onto the front of the desk and
held onto her pants to resist appellant's efforts. Complainant's
pants, introduced at trial, were missing a button, which
complainant testified was lost during the struggle.
We acknowledge that appellant's witness testified that,
6 after complainant left the office, complainant bought cigarettes,
bought gas, and laughed at a joke made by the witness. The
relationship of these facts to the issue of consent, however, is
highly attenuated. Appellant made no attempt to connect these
observations factually with the issue of complainant's consent to
sexual touching, and does not specifically argue that these facts
justify a consent instruction on appeal. At best, viewed in the
context of all the evidence, this evidence amounts to "'the least
particle'" of evidence of consent. Brandau, 16 Va. App. at 411,
430 S.E.2d at 565 (quoting Black's Law Dictionary 1345 (6th ed.
1990)) (defining "scintilla"). Simply put, we find that
appellant's evidence of consent did not amount to "more than a
scintilla." Hatcher, 218 Va. at 814, 241 S.E.2d at 758 (citing
Gibson, 216 Va. at 417, 219 S.E.2d at 849). We therefore hold
that the trial court properly refused to instruct the jury on the
issue of consent.
II.
Sufficiency of the Evidence
Appellant argues that the evidence is insufficient to
support his conviction on the ground that complainant's failure
to call for help when a woman knocked on the door of the office
and her "normal" appearance after the incident supports the
inference that she acquiesced in the actions of the appellant.
He also argues that "it is incredible" that he, as a store
manager on one of the busiest nights of the year, would risk an
7 outcry from complainant in the event she rejected his advances
and that complainant's actions further support the inference that
he acted "with the perception that [complainant] . . . assented."
A conviction for rape and other sexual offenses may be
sustained solely upon the uncorroborated testimony of the victim.
Fisher v. Commonwealth, 228 Va. 296, 299, 321 S.E.2d 202, 203
(1984). The credibility of witnesses and the weight assigned
their testimony are matters exclusively for the jury. Lea v. Commonwealth, 16 Va. App. 300, 304, 429 S.E.2d 477, 479 (1993)
(citing, inter alia, Schneider v. Commonwealth, 230 Va. 379, 383,
337 S.E.2d 735, 736-37 (1985)). The verdict of a jury will not
be disturbed on appeal unless it is plainly wrong or without
evidence to support it. Bell v. Commonwealth, 22 Va. App. 93,
96, 468 S.E.2d 114, 116 (1996) (citing, inter alia, Code
§ 8.01-680).
In contrast to evaluating a theory of defense instruction,
"[w]hen considering the sufficiency of the evidence on appeal in
a criminal case, this Court views the evidence in a light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." Carter v. Commonwealth,
25 Va. App. 721, 725, 492 S.E.2d 480, 482 (1997) (citing
Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,
537 (1975)). If there is evidence to support the verdict, this
Court "should not overrule it and substitute its own judgment,
even if its opinion might differ from that of the jury." George
8 v. Commonwealth, 242 Va. 264, 278, 411 S.E.2d 12, 20 (1991).
This standard "gives full play to the responsibility of the trier
of fact fairly to resolve conflicts in the testimony, to weigh
the evidence, and to draw reasonable inferences from basic facts
to ultimate facts." Jackson v. Virginia, 443 U.S. 307, 309
(1979).
Here, complainant's testimony was plainly sufficient to
support appellant's conviction. She testified to each of the
elements of appellant's offense, and her testimony was not
inherently incredible. Complainant's testimony was supported by
statements she made to her roommate and police officers
immediately after the assault. It was also supported by physical
evidence of semen on appellant's jacket, found in the office, and
a button missing from complainant's pants. Appellant also
testified that she "froze up" because she was "shocked" and
"terrified." We hold, therefore, that the evidence supports
appellant's conviction. Affirmed.