THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE Edward L.
Charles L. Weber, Jr., for appellant.
C. Campbell, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Present: Chief Judge Huff, Judges Russell and AtLee Argued at
G. RUSSELL, JR. JUDGE
Vay, appellant, was convicted, in a jury trial, of rape in
violation of Code § 18.2-61, sodomy in violation of Code
§ 18.2-67.1, and abduction with intent to defile in
violation of Code § 18.2-48. On appeal, he argues that
the trial court erred in 1) denying appellant's motions
to strike the evidence of abduction, 2) refusing to give a
proposed jury instruction on the law of incidental detention,
3) failing to conduct voir dire on whether appellant
voluntarily waived his right to testify, 4) refusing to
strike a juror for cause, and 5) its response to questions
from the jury. For the reasons stated below, we affirm.
well-settled principles of appellate review, we consider the
evidence presented at trial in the light most favorable to
the Commonwealth, the prevailing party below."
Smallwood v. Commonwealth, 278 Va. 625, 629, 688
S.E.2d 154, 156 (2009) (quoting Bolden v.
Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586
(2008)). This principle requires us to "discard the
evidence of the accused in conflict with that of the
Commonwealth, and regard as true all the credible evidence
favorable to the Commonwealth and all fair inferences to be
drawn therefrom." Parks v. Commonwealth, 221
Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis and
internal quotation marks omitted).
viewed, the evidence established that, on September 22, 2012,
the victim, L.S., then a seventeen-year-old college student,
attended a party in Charlottesville. The party was crowded,
and many of the guests were dancing. L.S. initially danced
with her friends, but because of the crowd, she became
separated from her friends and began dancing with appellant.
While dancing, appellant grabbed L.S. by the waist and pushed
her toward a wall. He then attempted to lift up her skirt.
L.S. characterized appellant as becoming "really
forceful" and testified that she intended to "just
get away from [appellant]" when the song ended. Before
she had a chance to leave, appellant removed his penis from
his pants, grabbed her hand, and forced her to touch him.
When the song ended, L.S. attempted to move away from
appellant, but he grabbed her by the waist and pushed her
through the crowd of people. She explained at trial:
[T]here is a guy that I don't know leading me somewhere,
who knows where I'm going and he has, like, control in a
sense. I don't know how to explain it, but he is using a
lot of force and I know he's using a lot of force because
there's [sic] so many people in that party for him to be
able to push me through people. I meant literally people
were---I was---my shoulders were bumping against people, . .
. imagine, I don't know, there's a crowd of people
around you and, you know, you're trying to get to the
front of the line or something and you have to use a lot of
force to get through people or else people won't move, so
that's what he was doing.
pushed L.S. through the kitchen, down a hallway, and into a
bathroom, a distance of forty feet. Appellant immediately
locked the bathroom door behind them and tried to remove
L.S.'s skirt. L.S. tried to push his hands away and
repeatedly asked him to "please stop." Appellant
responded by telling her that she would enjoy it.
eventually ripped off L.S.'s skirt and underwear. He then
unsuccessfully tried to penetrate L.S. from behind. Appellant
pushed L.S. to the floor and pinned her down with his body.
L.S. struggled against him, repeatedly telling him to stop.
Despite her efforts to resist, appellant was able to
penetrate her vagina with his penis and later with his
tongue. L.S. also testified that, at one point, appellant
"pushed [her] shirt down and pushed [her] bra down and .
. . started sucking on [her] nipple . . . using so much force
[that it was] . . . painful, " which caused her to
he was finished, appellant asked L.S. for her telephone
number. L.S. swore at appellant, left the bathroom, and
eventually found her friends and called police.
Police Officer Tara Sanchez responded to the call of a
possible sexual assault. Officer Sanchez arrived at the scene
within a minute of the call and found L.S. lying on the
ground with a "disconnect[ed] look on her face."
She appeared as though she had been crying and was breathing
heavily. Officer Sanchez described L.S. as being in
"almost a hyperventilating state." L.S. did not
appear intoxicated. L.S. gave Officer Sanchez a detailed
account of the events that just had taken place and described
Laughon, Ph.D., an associate professor of nursing at the
University of Virginia, testified as an expert in the field
of sexual assault injuries. She was called to the emergency
room on September 23 at 2:30 a.m. to meet with and examine
L.S. She described L.S. as tearful and upset, but
cooperative. Laughon observed bruising and redness on
L.S.'s lower legs, but was unable to conduct a complete
exam because L.S. complained of pain.
matter was scheduled to be tried on June 10, 2013. Shortly
before the trial was scheduled to commence, appellant moved
to continue the trial date. The trial court convened a
hearing on appellant's motion for continuance on June 4,
hearing, appellant, by counsel, explained that certain
witnesses he wished to call had not been subpoenaed
successfully and one would be out of the country on June
10th. During the hearing, it was revealed that counsel only
recently had been in touch with these potential witnesses and
had sought to compel the attendance of the witnesses only
recently. In attempting to explain why he previously had not
sought issuance of the subpoenas, appellant's counsel
indicated that he was limited in what he could say because
the decision to seek the witnesses was related to "our
trial strategy[, which] has been evolving."
trial court responded by noting that it did not want
appellant to have to reveal anything protected by the
"attorney/client privilege or [reveal trial]
strategy." The trial court asked if the Commonwealth
would allow him to discuss the issue with just appellant and
his counsel so the court would be fully aware of the reasons
for the requested continuance but "any [trial] strategy
wouldn't be disclosed to the Commonwealth . . . ."
The trial court made clear it would take this step "only
if the Commonwealth doesn't object."
Commonwealth did not object, and the courtroom was cleared.
The trial court noted that "for the record, the
Commonwealth has left and nobody is left in the courtroom
other than the bailiff, [appellant], [appellant's
counsel], the court reporter, [and] the clerk." At that
point, appellant's counsel indicated that the witnesses
in question were being sought to testify about certain
aspects of the party, e.g., how people ended up
there, the lighting, the physical layout of the premises,
reason counsel had not sought the attendance of the witnesses
before was that appellant could testify about these issues;
however, according to counsel, the defense recently had
decided that appellant would exercise his right not to
testify, thus requiring other witnesses to establish the
facts counsel had planned to elicit from appellant.
Specifically, counsel told the trial court that
[w]e came to a point where I had a fairly frank discussion
with [appellant] and said it might be in his best interest to
consider not testifying at trial. That was fairly recent,
after I've had several meetings with [appellant] and came
to the conclusion---we came to that conclusion [that he would
present in the courtroom without any opposition present,
appellant gave no indication that counsel's statement was
anything less than absolutely accurate. Based on the
representations in the closed hearing, the trial court
granted appellant's motion for a continuance.
voir dire, the Commonwealth asked whether anyone
served as a volunteer for groups that worked with the victims
of sexual assault. One juror, a sociology professor at the
University of Virginia who is affiliated with Women and
Gender Studies at the University, stated that she had
supervised students who were involved with the local Sexual
Assault Resource Agency and had done research projects on the
issue of sexual assault. The juror was asked if she would be
able to "sit impartially" and make a decision in
the case based solely on the evidence presented. She
responded, "Yes." Although both parties asked
additional specific questions about her ability to be
impartial, the juror continued to maintain consistently that
she could be impartial and that, if seated, she would decide
the case on the evidence presented.
objected to seating the juror because "her extensive
experience with sexual assault cases and having her students
volunteer with various programs has led her to a bias against
the defendant." The court overruled the motion, stating
that the juror was "unwavering and very credible"
and that he "was listening carefully to see if
there's any hesitation and [there] was none . . . ."
the Commonwealth presented its evidence and rested its case,
the trial court asked appellant's counsel,
"[Y]ou've discussed with your client his right to
testify and his right not to testify?" Appellant's
counsel responded, "Yes, Your Honor." The trial
court asked if appellant was exercising his right not to
testify, and appellant's counsel replied, "I believe
so, Your Honor" and "I haven't discussed that
with him very recently, so I will discuss that with him
again." The trial court stated, "That's fine, .
. . I want to give you ample time to do that and so we will
take a recess and let us know when you're ready."
Appellant was present in the courtroom during the exchange.
After the recess, appellant's counsel made a motion to
strike the abduction with the intent to defile charge. The
trial court denied the motion.
then called one witness and rested his case at the conclusion
of that witness' testimony. Appellant did not testify.
rested his case, appellant renewed his motion to strike. Both
appellant and the Commonwealth reasserted the arguments that
had been made when the motion to strike had been made at the
close of the Commonwealth's evidence. The trial court
again denied the motion to strike.
deliberating during the guilt phase, the jury returned guilty
verdicts on all three charges.
the sentencing phase of the trial, the jury sent the
following questions to the trial court: "Do these 3
sentences run concurrently?" and "Can we recommend
that the sentences be served concurrently?" The trial
court stated to counsel, outside the presence of the jury,
"I think the whole answer is that they don't have
the authority to . . . recommend they run concurrently."
The trial court then asked appellant's counsel, "Do
you agree with that?" Appellant's counsel replied,
"I think that's right, Judge." The trial court
proposed, "We could say imposing concurrent sentences is
not within the province of the jury." Appellant's
counsel stated, "Yes, that sounds right." The
Commonwealth agreed. The record indicates the trial court
wrote the response and sent it to the jury room. For the