Torrence Lamont Smith v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: November 20, 2001
• Docket: 2319003
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Bumgardner and Humphreys Argued at Salem, Virginia

TORRENCE LAMONT SMITH MEMORANDUM OPINION * BY v. Record No. 2319-00-3 JUDGE RUDOLPH BUMGARDNER, III NOVEMBER 20, 2001 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE James F. Ingram, Judge

S. Jane Chittom, Appellate Defender (Public Defender Commission, on briefs), for appellant.

Stephen R. McCullough, Assistant Attorney General (Randolph A. Beales, Attorney General, on brief), for appellee.

The trial court convicted Torrence Lamont Smith of robbery

and attempted forcible sodomy. He maintains the evidence was

insufficient to convict him of attempted forcible sodomy. We

conclude the evidence proved the attempt and affirm the

conviction.

Late at night, the defendant approached the victim as she

climbed the stairs to her apartment. 1 The victim recognized the

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 "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. Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation omitted). defendant but did not know him by name. He asked to use her

bathroom, and she let the defendant into her apartment. Once

inside the apartment, the defendant went to a window and started

clicking an object in his pocket. The victim thought the

clicking noise was a gun. The defendant stated, "I hate to say

it but if you don't do what I say do, I'm gon' fuck you up." He

then said, "Suck my dick."

The victim fled downstairs, and the defendant pursued. He

caught her at the bottom of the stairs and started choking her

when she screamed for help. The defendant thrust his hand in

the victim's throat to stop the screaming, so she started

kicking her neighbor's door. Eventually, the defendant twisted

a necklace from the victim's neck and ran off.

The defendant concedes the evidence proves he intended to

commit forcible sodomy. He contends, however, that the evidence

does not prove that he committed any act in furtherance of the

sexual act. He maintains to prove an attempt of a sex crime the

evidence must show an act of a sexual nature.

"'An attempt is composed of two elements: the intention to

commit the crime, and the doing of some direct act towards its

consummation which is more than mere preparation but falls short

of execution of the ultimate purpose.'" Hopson v. Commonwealth,

15 Va. App. 749, 752, 427 S.E.2d 221, 223 (1993) (quoting

Sizemore v. Commonwealth, 218 Va. 980, 983, 243 S.E.2d 212, 213

- 2 - (1978)). Although the Commonwealth must prove an overt act in

order to establish an attempt, "if 'the design of a person to

commit a crime is clearly shown, slight acts done in furtherance

of this design will constitute an attempt.'" Tharrington v.

Commonwealth, 2 Va. App. 492, 494, 346 S.E.2d 337, 339 (1986)

(quoting State v. Bell, 316 S.E.2d 611, 616 (N.C. 1984)).

In this case, the defendant entered the victim's apartment

by trickery and threatened to hurt her if she did not do as he

commanded. He stated his intentions explicitly. When his

victim ran, he caught her, and attacked violently. Only the

victim's indomitable resistance prevented the defendant from

subduing her.

Forcible sodomy is a crime of violence that an accused must

accomplish by force and against the will of the victim. In this

case, the defendant announced his intention to commit sodomy by

force. When the victim resisted, he proceeded to apply force to

subdue her to his will just as he stated he would. Those acts

were direct acts toward consummation of the crime, not mere

preparation. The evidence proved "direct ineffectual acts

toward the commission of the offense . . . ." Martin v.

Commonwealth, 195 Va. 1107, 1112, 81 S.E.2d 574, 577 (1954).

"Neither the ineffectuality of [the defendant's] acts nor the

prevention of performance . . . was of a kind to rid his acts of

their criminal character." Id. (citation omitted).

- 3 - The evidence was sufficient to prove beyond a reasonable

doubt that the defendant committed attempted forcible sodomy.

Accordingly, we affirm.

Affirmed.

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