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Full Opinion
COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Bray
Argued at Richmond, Virginia
ROGER TALLEY CLIFTON
v. Record No. 0103-95-3 OPINION BY
JUDGE JERE M. H. WILLIS, JR.
COMMONWEALTH OF VIRGINIA MARCH 26, 1996
FROM THE CIRCUIT COURT OF WASHINGTON COUNTY
Charles H. Smith, Jr., Judge
C. David Whaley (Anthony G. Spencer;
Morchower, Luxton & Whaley, on brief), for
appellant.
Linwood T. Wells, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
On appeal from his convictions in a jury trial of breaking
and entering with intent to commit rape and of rape, Roger Talley
Clifton contends (1) that the evidence is insufficient to support
his convictions, and (2) that the trial court erred by refusing
to give a jury instruction addressing his perception that the
victim consented. We find no error and affirm the judgment of
the trial court.
On appeal, we view the evidence in the light most favorable
to the Commonwealth, granting to it all reasonable inferences
fairly deducible therefrom. Higginbotham v. Commonwealth, 216
Va. 349, 352, 218 S.E.2d 534, 537 (1975). "The jury's verdict
will not be disturbed on appeal unless it is plainly wrong or
without evidence to support it." Traverso v. Commonwealth, 6 Va.
App. 172, 176, 366 S.E.2d 719, 721 (1988).
"A conviction of rape may be sustained solely upon the
credible testimony of the prosecutrix." Myers v. Commonwealth,
11 Va. App. 634, 635, 400 S.E.2d 803, 804 (1991). "'[T]he
credibility of witnesses and the weight to be given to their
testimony are questions exclusively within the province of a
jury.'" Id. (citation omitted).
The victim testified that on the morning of January 6, 1994,
her next door neighbor, Clifton, entered her house. Her husband
was at work and her three children were asleep. She testified
that she was in the kitchen, dressed only in a nightgown and
underclothes, when she heard a "peck." She looked out the window
and saw Clifton standing outside pointing at the door. She
gestured for him to wait. When she walked into the front room,
Clifton was already standing inside the door. He grabbed her and
began rubbing her breasts. After she told him "to quit," he
twisted her arm behind her back and dragged her to the couch. He
bent her over the couch, pulled her panties down, and announced
his intention to have sexual intercourse with her. She
testified, "I told him no, stop, and I started crying." However,
she said that she did not resist, but submitted to sexual
intercourse with Clifton because she was afraid for her children
and did not want them to be awakened and see what was happening.
During the intercourse, the victim saw her husband drive by
and saw Clifton's daughter outside the house. She told Clifton
of this, but he continued to have intercourse until he was
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"finished." When she told Clifton that a black Blazer was
pulling into his driveway, he released her and went home. She
denied having had intercourse with Clifton previously.
Clifton testified that he and the victim had prior sexual
relations in 1991. He testified that on the morning in question,
he walked out onto his front porch and saw the victim motioning
to him through the window. He walked over to her house and
entered through an open door. He testified that she said, "it
has been a long time since we did anything." He testified that
she pulled the elastic waistband of his pants out, put her hand
inside his pants, and fondled him. She then lifted her
nightgown, knelt on the couch, reached behind her, grabbed his
penis, and inserted it. He testified that while they were having
intercourse, the victim saw her husband's car go by outside and
became nervous. He assured her that her husband would not arrive
for a few minutes and said "[l]et's finish what we started here."
After Clifton left, the victim telephoned her sister-in-law
and her husband. The sister-in-law corroborated this, testifying
that the victim telephoned her and told her that Clifton had
raped her. When the victim's husband arrived home, he called the
police. Officer Snodgrass of the Abingdon Police Department
testified that when he arrived at the victim's home, she was
upset and crying.
The victim was taken to the hospital for a rape examination.
Dr. Moore, a medical expert who testified on Clifton's behalf,
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stated that according to the victim's records, the examination
did not disclose injury that would normally be expected to result
from forcible sexual penetration.
I.
Clifton acknowledges that he had sexual intercourse with the
victim, but contends that it was consensual. He argues that her
non-resistance proves her consent. We disagree.
The victim was in her own home when Clifton entered. Her
three small children were asleep in their rooms, and her husband
was at work. Her account sufficiently described a rape and was
not inherently incredible. Her explanation that she did not
resist because she was afraid for her children was reasonable.
"Her credibility and the weight to be given to her testimony were
peculiarly within the province of the jury." Myers at 637, 400
S.E.2d at 805.
II.
The trial court gave the following instructions:
Instruction 15.
The defendant is charged with the crime
of rape. The Commonwealth must prove beyond
a reasonable doubt each of the following
elements of that crime:
(1) That the defendant had sexual
intercourse with [the victim] who was not
then the defendant's spouse; and
(2) That it was against her will and
without her consent; and
(3) That it was by force, threat or
intimidation. . . .
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Instruction B.
The Commonwealth need not show that [the
victim] cried out or physically resisted the
defendant in order to convict him of the
offense for which he is charged, but the
absence of such resistance may be considered
to show that the act alleged was not against
her will.
Instruction C.
Consent by [the victim] is an absolute
bar to conviction of rape. If, after
consideration of all the evidence, you have a
reasonable doubt as to whether [the victim]
consented to have intercourse with him, then
you shall find him not guilty.
The trial court refused the following jury instruction,
which was proposed by Clifton:
If you find the defendant actually believed
that [the victim] was consenting to have
sexual intercourse, and if his belief was
reasonable, then you shall find him not
guilty. The burden is on the Commonwealth to
prove beyond a reasonable doubt that the
defendant either knew that [the victim] did
not consent to sexual intercourse, or that a
reasonable person in the position of the
defendant would have known that [the victim]
did not consent to sexual intercourse.
Contending that the refusal of this instruction was error,
Clifton argues that rape is a crime of intent and that the
Commonwealth was required to prove that he knew or should have
known that the intercourse was accomplished without the victim's
consent. We disagree.
Although proof of rape requires proof of intent, the
required intent is established upon proof that the accused
knowingly and intentionally committed the acts constituting the
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elements of rape. The elements of rape, as pertinent to this
case, consist of engaging in sexual intercourse with the victim,
against her will, by force, threat, or intimidation. See Code
§ 18.2-61(A); Carter v. Commonwealth, 16 Va. App. 118, 127, 428
S.E.2d 34, 41 (1993). In support of a consent defense, an
accused may produce evidence of circumstances, including conduct 1
or statements by the victim, tending to prove consent. He may
testify as to his observations or perceptions of statements or
conduct by the victim suggesting consent. However, the element
to be proven by the Commonwealth is the fact that the intercourse
was accomplished against the victim's will. The accused's
perception may be evidence bearing on the sufficiency of the
proof of this element, but it is not itself an element of the
crime. See Bailey v. Commonwealth, 82 Va. 107, 111 (1886). 2
Instructions 15, B, and C properly and fully informed the
jury of the elements the Commonwealth was required to prove in
order to convict Clifton of rape. Instruction C specifically
addressed Clifton's affirmative defense of consent. The jury was
instructed that if it had a reasonable doubt whether the victim
1
Contrary to the assertions in the dissent, we do not hold
that the victim's conduct is irrelevant, nor do we hold that
consent can never be shown in the absence of words indicating a
willingness to engage in intercourse. We hold merely that the
defendant's state of mind regarding the issue of consent is not
an element the Commonwealth is required to prove.
2
Although the law no longer requires, as proof of non-
consent, the level of resistance recited in Bailey, the elements
of rape remain the same.
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consented to sexual intercourse with Clifton, it could not
convict him of rape.
The judgment of the trial court is affirmed.
Affirmed.
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BENTON, J., dissenting.
I disagree with the majority's holding that the trial judge
did not err in refusing Clifton's proposed jury instruction. The
principle is well established that "[a] jury must be instructed
on any theory or affirmative defense supported by the evidence."
McCoy v. Commonwealth, 9 Va. App. 227, 229, 385 S.E.2d 628, 629
(1989). Thus, this Court has "held that it was error not to give
a separate instruction defining consent when 'consent was vital
to [the] defense and was supported by sufficient evidence to make
it a jury issue.'" Morse v. Commonwealth, 17 Va. App. 627, 637,
440 S.E.2d 145, 151 (1994) (citation omitted). As in Morse, the
instruction that Clifton tendered in this case and that was
rejected by the trial judge addressed "the meaning of consent."
Id. Moreover, Clifton's evidence supported the giving of an
instruction that would have required the jury, if it accepted
Clifton's evidence, to determine whether consent occurred in the
absence of a verbal manifestation of consent.
The Commonwealth's evidence proved that Clifton, the
complainant's neighbor, entered complainant's residence when she
was home with her children. The complainant testified that after
Clifton began rubbing her breasts, she told him "to quit." She
further testified that she told Clifton "no, stop" when he
forcefully grabbed her, moved her to a sofa, and stated that he
intended to have sexual intercourse with her. She testified
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further that her responses were tempered because she did not want
her children to awake and witness the assault. She denied any
prior sexual relations with Clifton.
In his defense, Clifton testified that the complainant
invited him into her residence while she was wearing a nightgown.
He testified that the complainant talked about their prior
sexual encounters, fondled him, and engaged in consensual sexual
intercourse. He testified that she made no statement indicating
that she was unwilling to have sexual intercourse. He further
testified that the complainant became agitated and disengaged
from the act when her husband drove by. She then expressed
concern about her husband returning.
Clifton further testified that he had known the complainant
for five years and that they had sexual intercourse on two
previous occasions when her husband was absent. He also
introduced in evidence a photograph of complainant in underwear
and testified that she gave it to him.
Clifton's evidence included testimony by a physician that
the complainant exhibited no signs of rape. The physician found
no bruising marks on her wrists, arms, or body suggesting force.
The doctor also testified that the complainant exhibited no
signs of stress, emotions, fear, or anger. When she was
examined, all of her "vital signs" were normal. The doctor
further testified that the examination was "not consistent with
what [he had] seen in the past or would expect to see."
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The majority states that "Clifton argues that . . . the
Commonwealth was required to prove that he knew the intercourse
was accomplished without the victim's consent." I believe that
the majority misperceives Clifton's argument. In his brief,
Clifton argues that the jury could have found that he "actually
and reasonably believed that she did [consent]." Clifton does
not contend that the Commonwealth must affirmatively prove that
he had an awareness that the complainant did not consent.
Indeed, in Clifton's brief he acknowledges the principle that
"[a] person who proceeds to accomplish intercourse, in the face
of [the awareness that the consent of the other person is vital]
. . . is a rapist unless he/she reasonably believed that his/her
partner was truly consenting." Roger D. Groot, Criminal Offenses
and Defenses in Virginia 380 (3d ed. 1994).
The majority also states that Clifton's proposed instruction
was erroneous because, although "[t]he accused's perception may
be evidence bearing on the sufficiency of proof, . . . it is not
itself an element of the crime." Whether the complainant ever
actually gave verbal consent obviously may be an important
consideration in a rape prosecution; however, if the jury
believed Clifton's testimony, it was required to assess a
circumstance in which the complainant made no verbal statement
bearing on consent. The jury should have been instructed on the
question of how to determine whether the victim consented in the
absence of a verbal expression. Without a clear verbal
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manifestation of consent or lack thereof, the jury must consider
the victim's conduct. I believe that question should be
determined by the standard of a reasonable person. Thus, the
ultimate issue posed by Clifton's evidence is whether a
reasonable person in Clifton's position would have known, based
upon the victim's conduct, that the complainant did not consent.
Under the majority's reasoning, rape must be classified as a
strict liability crime because only "the fact" of consent can be
proven. The logical extension of that reasoning is that neither
the conduct of a complainant, no matter how inviting, nor the
intent of an accused, no matter how reasonable, is relevant in
determining the manner in which to instruct the jury concerning
the sufficiency of the evidence to prove consent.
In Virginia, rape is statutorily defined in pertinent part
as follows:
If any person has sexual intercourse with a
complaining witness who is not his or her
spouse . . . and such act is accomplished
. . . against the complaining witness's will,
by force, threat or intimidation of or
against the complaining witness or another
person, . . . he or she shall be guilty of
rape.
Code § 18.2-61(A). Because the offense requires that the act be
committed "against the complaining witness's will," id., rape, by
definition, must occur without the consent of the complainant.
See Groot, supra, at 380. Indeed, Virginia Model Jury
Instruction No. 45.100 states that the act must be committed
"against [the complainant's] will and without her consent."
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The issue that Clifton's appeal raises is what intent is
required to prove rape. As Professor Groot notes, "rape is not a
strict liability crime." Groot, supra, at 380. The Commonwealth
must prove an intent by the accused. Id. However, the
Commonwealth is not required to prove that an accused actually
knew that the complainant did not consent. Id. The Commonwealth
is only required to prove that under the circumstances the
accused knew or should have known that the complainant did not
wish to have sexual intercourse. This objective standard allows
the fact finder to consider all of the circumstances, including
the victim's conduct.
Clifton argues that the instruction he tendered was based on
this theory of the evidence and that his testimony was sufficient
to support the instruction. He further argues that he was
entitled to have the jury instructed that he must be acquitted if
he actually and reasonably believed that the complainant had
consented. See Groot, supra, at 394 n.20.
Although no Virginia cases address in detail the issue of
consent, cases from other states have done so. For example, the
Supreme Court of Connecticut ruled as follows:
A finding that a complainant had consented
would implicitly negate a claim that the
actor had compelled the complainant by force
or threat to engage in sexual intercourse.
Consent is not made an affirmative defense
under our sex offense statutes, so, as in the
case of the defense of alibi, the burden is
upon the state to prove lack of consent
beyond a reasonable doubt whenever the issue
is raised.
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While the word "consent" is commonly
regarded as referring to the state of mind of
the complainant in a sexual assault case, it
cannot be viewed as a wholly subjective
concept. Although the actual state of mind
of the actor in a criminal case may in many
instances be the issue upon which culpability
depends, a defendant is not chargeable with
knowledge of the internal workings of the
minds of others except to the extent that he
should reasonably have gained such knowledge
from his observations of their conduct. The
law of contract has come to recognize that a
true "meeting of the minds" is no longer
essential to the formation of a contract and
that rights and obligations may arise from
acts of the parties, usually their words,
upon which a reasonable person would rely.
Similarly, whether a complainant has
consented to intercourse depends upon her
manifestations of such consent as reasonably
construed. If the conduct of the complainant
under all the circumstances should reasonably
be viewed as indicating consent to the act of
intercourse, a defendant should not be found
guilty because of some undisclosed mental
reservation on the part of the complainant.
Reasonable conduct ought not to be deemed
criminal.
It is likely that juries in considering
the defense of consent in sexual assault
cases, though visualizing the issue in terms
of actual consent by the complainant, have
reached their verdicts on the basis of
inferences that a reasonable person would
draw from the conduct of the complainant and
the defendant under the surrounding
circumstances. It is doubtful that jurors
would ever convict a defendant who had in
their view acted in reasonable reliance upon
words or conduct of the complainant
indicating consent, even though there had
been some concealed reluctance on her part.
If a defendant were concerned about such a
possibility, however, he would be entitled,
once the issue is raised, to request a jury
instruction that the state must prove beyond
a reasonable doubt that the conduct of the
complainant would not have justified a
reasonable belief that she had consented.
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State v. Smith, 554 A.2d 713, 717 (Conn. 1989)(citation omitted).
In his defense, Clifton testified concerning the facts and
circumstances that he contends occurred on the day of the
incident. His testimony described the complainant's attire and
her conduct after, as he alleged, she invited him into her
residence. His theory of defense was that, although the
complainant did not verbally affirm her intentions, her conduct
constituted consent or, at a minimum, gave rise to a reasonable
belief in his mind that she consented. He contends that he
actually believed from her conduct and surrounding circumstances
that she consented and that his belief was reasonable.
The instruction that Clifton tendered was a correct
statement of the law. It stated the following:
If you find that the defendant actually
believed that [the complainant] was
consenting to have sexual intercourse, and if
his belief was reasonable, then you shall
find him not guilty. The burden is on the
Commonwealth to prove beyond a reasonable
doubt that the defendant either knew that
[the complainant] did not consent to sexual
intercourse, or that a reasonable person in
the position of the defendant would have
known that [the complainant] did not consent
to sexual intercourse.
The instruction gave meaning to consent and clearly informed
the jury that Clifton's subjective belief was insufficient to
find him not guilty. "When the accused claims mistake as to the
fact of consent, he/she should at most obtain an instruction that
he/she cannot be convicted if (1) he/she actually believed the
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victim was consenting, and (2) the belief was reasonable."
Groot, supra, at 394 n.20. The instruction informed the jury
that it could convict only if the Commonwealth proved beyond a
reasonable doubt that Clifton subjectively did not believe the
victim had consented or that a reasonable person in Clifton's
position could not have believed the victim had consented. Thus,
the jury was required to consider all of the circumstances
surrounding the case, including whether the victim actually
consented.
The trial judge instructed the jury on consent as follows:
Consent by [the victim] is an absolute bar to
conviction of rape. If, after consideration
of all the evidence, you have a reasonable
doubt as to whether [the victim] consented to
have intercourse with him, then you shall
find him not guilty.
Under the circumstances of this case, this instruction, which is
Instruction No. 45.700 from the Virginia Model Jury Instructions
(Criminal), was inadequate because it leaves ambiguous whether
consent may be manifested by conduct in the absence of verbal
expression. If consent can be manifested by conduct and I
believe it can be, the jury must be given guidance. The
instruction should include the directive that conduct will
suffice to establish consent but only if the defendant both
sincerely and reasonably interprets it as consent. This
instruction failed to inform the jury that if they found, as
Clifton testified, that the complainant made no verbal
expressions, they could nonetheless find from the facts and
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circumstances of complainant's conduct that Clifton sincerely and
reasonably believed she consented.
For these reasons, I would reverse the conviction and remand
for a new trial.
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