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Cabral v. Commonwealth

Court of Appeals of Virginia

July 17, 2018

CHRISTOPHER PARRIS CABRAL
v.
COMMONWEALTH OF VIRGINIA

          FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG AND COUNTY OF JAMES CITY Michael E. McGinty, Judge

          Richard G. Collins (Collins & Hyman, PLC, on brief), for appellant.

          Leah A. Darron, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

          Present: Judges Russell, AtLee and Malveaux Argued at Norfolk, Virginia

          OPINION

          MARY BENNETT MALVEAUX JUDGE

         Christopher Parris Cabral ("appellant") was convicted of aggravated sexual battery, in violation of Code § 18.2-67.3.[1] On appeal, appellant argues the evidence was insufficient to support the charge because there was no evidence that he used a deadly weapon. For the reasons that follow, we affirm appellant's conviction.

         I. BACKGROUND

         On August 31, 2015, the victim, T.V., began her morning run at approximately 5:20 a.m. She ran south on Richmond Road in the City of Williamsburg, stopping about a quarter mile into her run to adjust the arm band holding her phone. While stopped, she observed a man jogging toward her from the north, the direction of a restaurant. T.V. backed off of the sidewalk into the grass to let the man pass. Instead of passing, the man ran towards T.V., grabbed her left arm and shoulder with one hand, and pulled out an object with the other. T.V. knew the object to be a Taser because of the "very loud and audible" sound it made when activated. T.V. felt the man strike her stomach with the Taser. She was not incapacitated because "it was not fully powered." She began to fight, and the man "struck" her with the Taser two more times during the altercation.

         The man dragged T.V. across the grass to a nearby parking lot where both fell to the ground. He covered her mouth, placed an arm around her throat, and wrapped his leg around her legs to prevent her from kicking. The man used his right hand to rub T.V.'s vagina "back and forth" over her clothing. He then told her that "he worked security . . . nearby" and that she "needed to learn that it wasn't safe for a woman to run on their own in the morning." The man turned T.V. away from him and told her to wait while he fled the scene. T.V. counted to five, turned around to get a look at the man as he ran back north, and then turned and began running south.

         When T.V. felt comfortable, she stopped running and called 911. Officer Powell arrived and T.V. gave him a description of her attacker, which Powell provided to other officers. Officers found appellant, who fit the description of the man given by T.V., parked in the nearby restaurant parking lot and detained him. T.V. was able to identify appellant as her attacker by his appearance and voice.

         Officers searched appellant's vehicle and recovered security apparel, including a uniform and badge, as well as a Taser. Officer Powell tested the Taser by pressing a button, and the Taser "admitted a charge," "sparked," and "made noise."

         T.V.'s injuries included swelling to her neck, back, shoulders, and abdomen. The trial court found that T.V. had been "tased three times," and her abdominal swelling was "consistent with being tased in the abdomen."

         II. ANALYSIS

         Appellant contends the evidence was insufficient to support the aggravated sexual battery charge because the Commonwealth failed to prove that the Taser he used qualifies as a "deadly" ...


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