Lester Lee Morris v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: April 1, 2003
• Docket: 2931011
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bumgardner, Felton and Senior Judge Overton Argued at Chesapeake, Virginia

LESTER LEE MORRIS MEMORANDUM OPINION * BY v. Record No. 2931-01-1 JUDGE NELSON T. OVERTON APRIL 1, 2003 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Thomas S. Shadrick, Judge

William P. Robinson, Jr. (Robinson, Neeley & Anderson, on brief), for appellant.

Eugene Murphy, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Lester Morris, appellant, appeals a decision of a jury

finding him guilt of sodomy. 1 He contends on appeal that the

trial court erred in admitting evidence of alleged acts of

misconduct and that the evidence was insufficient to prove he

committed sodomy. Finding no error, we affirm.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 Appellant was also convicted for the distribution of narcotics to a minor. However, this Court granted the issue challenging the sufficiency of the evidence for only the sodomy charge. BACKGROUND

The teen-aged victim was staying with appellant at

appellant's residence for a few days. The victim testified that

appellant often gave or sold him Valium and other drugs. On the

evening of August 13, 1999, the victim purchased from appellant

and consumed about six-and-one-half Valium pills. At about

midnight that night, appellant offered the victim two more

Valium pills. The victim took one of the pills, then said he

could not take anymore because he was "messed up." The victim

fell asleep on the floor of appellant's bedroom.

The victim testified that when he awoke, he was lying on

his side, his boxer shorts "were halfway down to [his] knees"

and appellant was "right" "behind [him] kind of close." The

victim stated that appellant was close enough "to feel him

touching." Appellant's face was toward the victim's back. The

victim stated, "I noticed something was nasty behind me--

something sticky, slimy." The next day, the victim asked

appellant what he was "doing behind [him]," and appellant

replied, "Nothing." The victim then asked appellant what he

would have done if the victim had not awakened when he did, and

appellant replied, "I probably would have finished."

On the evening of August 16, 1999, a sexual assault nurse

examiner examined the victim. She testified that the victim was

emotionally distraught and upset. The nurse found tears in the

victim's anal tissue, a bruise at the edge of the anus into the - 2 - anal sphincter, and abnormal redness of tissue in the area. She

estimated that the injuries were about thirty-six to forty-eight

hours old. The nurse also stated that "blunt force trauma"

directed "inward" caused the victim's injuries. She opined that

the injuries could not have been caused by "hard stool."

A medical doctor also examined the victim on August 16,

1999. The doctor conducted an anoscopy, which allowed him to

examine the tissue approximately four centimeters inside the

victim's anus. The doctor observed abnormal irritation,

redness, and inflammation inside the victim's anus consistent

with the blunt force trauma the nurse reported as the cause of

the external injuries.

Appellant denied that he gave or sold medications or drugs

to the victim. He also denied that he had any sexual contact

with the victim.

After describing the August 1999 incident, the victim

testified that appellant had made several comments to him prior

to August 1999. The victim stated that appellant once described

him as "looking all sexy" when he saw the victim wearing only a

towel around his waist. The victim also stated that appellant

showed him pornographic movies and once offered to give the

victim pills if he would masturbate while watching a

pornographic movie.

- 3 - EVIDENCE OF PRIOR MISCONDUCT

Appellant contends the trial court abused its discretion in

admitting evidence of three prior acts of misconduct by

appellant. However, the pages of the appendix cited by

appellant in his opening brief do not contain objections or

arguments concerning the evidence he challenges. "We will not

search the record for errors in order to interpret appellant's

contention and correct deficiencies in a brief." Buchanan v.

Buchanan, 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992).

Moreover, the portion of the transcript wherein the victim

testified concerning the incidents of appellant's prior

misconduct does not contain any objections or arguments made by

appellant regarding the admissibility of the evidence. "No

ruling of the trial court . . . will be considered as a basis

for reversal unless the objection was stated together with the

grounds therefor at the time of the ruling, except for good

cause shown or to enable the Court of Appeals to attain the ends

of justice." Rule 5A:18. Accordingly, Rule 5A:18 bars our

consideration of this question on appeal. Moreover, the record

does not reflect any reason to invoke the good cause or ends of

justice exceptions to Rule 5A:18.

SUFFICIENCY OF THE EVIDENCE

"On appeal, 'we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.'" Archer v. - 4 - Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)

(citation omitted).

"To sustain a conviction for sodomy, the Commonwealth must

prove beyond a reasonable doubt that penetration occurred.

However, penetration may be proved by circumstantial evidence,

and that evidence need only be slight." Lawson v. Commonwealth,

13 Va. App. 109, 113, 409 S.E.2d 466, 468 (1991) (citations

omitted). "[I]n the context of a sodomy charge, '[e]vidence of

the condition, position, and proximity of the parties . . . may

afford sufficient evidence of penetration . . . .'" Morrison v.

Commonwealth, 10 Va. App. 300, 301, 391 S.E.2d 612, 612 (1990)

The jury accepted the victim's testimony concerning the

offense and did not believe appellant's testimony. "The

credibility of the witnesses and the weight accorded the

evidence are matters solely for the fact finder who has the

opportunity to see and hear that evidence as it is presented."

Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730,

732 (1995). The victim's testimony was competent and was not

inherently incredible. In addition, penetration, like any other

element, "may be proved by circumstantial evidence and is not

dependent on direct testimony from the victim that penetration

occurred." Morrison, 10 Va. App. at 301, 391 S.E.2d at 612.

From the victim's testimony that his shorts had been lowered

while he slept, that appellant was close behind the victim and - 5 - was facing toward his back, and that he felt something "sticky,

slimy" behind him, coupled with the medical evidence, the jury

could conclude beyond a reasonable doubt that appellant

sodomized the victim.

For the foregoing reasons, the decision of the trial court

is affirmed.

Affirmed.

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