an appeal from a judgment rendered by the Court of Appeals of
Virginia No. 0633-17-2.
Present: Lemons, C.J., Goodwyn, Mims, Powell, Kelsey, and
McCullough, JJ., and Russell, S.J.
2017, Harry Lee Davison, III, was convicted in a jury trial
in the Circuit Court of the City of Fredericksburg of
forcible sodomy, aggravated sexual battery, object sexual
penetration (two counts) and unlawful wounding in the
commission of a felony (two counts) against the will of a
female victim. In accordance with the jury's verdict, the
court imposed a sentence of 20 years imprisonment and a $35,
appealed his forcible sodomy and aggravated sexual battery
convictions to the Court of Appeals and only those two
convictions are before us. Davison assigned two errors: (1)
that the evidence was insufficient to support his convictions
and (2) that the trial court erred in giving jury
instructions that combined the alternative theories of force,
the victim's mental incapacity or physical helplessness
as the means by which the sexual acts were committed against
the victim's will.
Court of Appeals refused Davison's assignment of error
challenging the sufficiency of the evidence but granted and
considered this second assignment of error. The question of
law presented by Davison's second assignment of error had
been presented to the Court of Appeals in Molina v.
Commonwealth, 47 Va.App. 338 (2006), but in that case
the Court of Appeals assumed, without deciding, that the
trial court erred in granting such a combined instruction but
that in the circumstances of that case, the error was
harmless. On appeal to this Court, we affirmed Molina's
conviction but did not reach the combined instruction
question because we determined that it had not been preserved
for appeal in the trial court. Molina v.
Commonwealth, 272 Va. 666, 673 (2006). Thus, the present
case is the first in which either of our appellate courts has
addressed this question on its merits.
Court of Appeals affirmed Davison's convictions in a
published opinion. Davison v. Commonwealth, 69
Va.App. 321 (2018). Because that opinion sets forth the facts
in evidence pertinent to this appeal, it is not necessary to
repeat them in this order.
contended that the jury instructions were flawed because they
required the jury to find that he committed the proscribed
sexual acts against the victim's will by force or through
her physical helplessness while knowing or having reason to
know that she was physically helpless, or through her mental
incapacity while knowing or having reason to know of her
mental incapacity. He argued that these instructions were
confusing to the jury and speculated that they could have
resulted in a non-unanimous jury with some jurors adopting
one theory and others adopting another.
Court of Appeals determined that the elements of both crimes
were: (1) that Davison committed the proscribed sexual acts
against the victim and (2) that those acts were committed
without her consent and against her will. 69 Va.App. at 330.
The jury must be unanimous in finding those elements proved.
Following the weight of authority in other jurisdictions,
both federal and state, that have decided the question, the
Court of Appeals held that juror unanimity is not required
for deciding the means used in the commission of an element
of a crime. Id. at 328-31. Thus, if all jurors in
the present case agreed that Davison committed the alleged
sexual acts without the victim's consent and against her
will, it is immaterial that some jurors may have thought her
will was overcome by force while others may have ascribed it
to knowing exploitation of her physical helplessness or
mental incapacity. Id.
the record, the Court of Appeals found the evidence at trial
sufficient to support a finding that Davison committed both
crimes against the victim's will by each of the means
contained in the instructions: force, her physical
helplessness or her mental incapacity. Id. at 331.
Accordingly, the Court of Appeals held that the trial court
correctly instructed the jury and affirmed the convictions.
Id. at 332.
appealed his convictions to this Court, presenting the same
two assignments of error. (Pet. 3). We also refused his first
assignment of error challenging the sufficiency of the
evidence. We awarded him an appeal on his second assignment
of error relating to jury instructions in order to resolve
the question of law left unanswered in Molina.
agree with the analysis, the reasoning and the holdings of
the Court of Appeals expressed in its published opinion and
accordingly affirm the convictions.
order shall be published in the Virginia Reports and
certified to the Court of Appeals of Virginia and to the