Although a girl’s testimony established that defendant, her mother’s live-in boyfriend, raped her the first time he molested her, her description of subsequent incidents of sexual contact describe “oral or intercourse sex” without specifying more precisely what conduct occurred, and the appellate court must reverse seven of eight counts of rape on which defendant was convicted.
Here, the victim described a rape that took place on April 10 or 11, 2002, and she correctly defined the term intercourse when asked by the prosecutor. Defendant concedes this evidence is sufficient to prove rape. However, as to the remaining seven counts, defendant argues there was insufficient evidence to prove that he engaged in sexual intercourse with the victim because the victim failed to distinguish whether the acts were “oral or intercourse sex.”
The victim’s testimony in this case, while credible, is simply incomplete. The testimony establishes that on an unknown number of occasions defendant had some kind of sexual involvement with the victim. However, the prosecutor did not elicit any further information from the victim (or from any other source) that would allow the jury to infer what type of sexual activity occurred each time. In other words, while the occurrence of several sexual acts may have been established, the nature of the sexual activity – punishable under separate statutes – is completely speculative. The jury had no evidence from which it could reasonably infer how many times defendant had sexual intercourse with the victim at this particular location.
Here, the commonwealth provided no evidence at trial, circumstantial or direct, from which the jury could find that seven rapes occurred. There was only evidence of one rape.
However, defendant’s convictions of carnal knowledge of a child between ages 13 and 15, in violation of Code § 18.2-63, are affirmed.
Affirmed in part, reversed and dismissed in part.
Beales, J.: I join in the court’s opinion. While the commonwealth could have charged defendant with forcible sodomy or rape under other subsections of the statute criminalizing rape regardless of the age of the victim, the commonwealth instead prosecuted the rape charges only under subpart (A)(iii), where it must prove defendant had sexual intercourse with the victim before she turned 13 – and then simply failed to put on evidence to show that 1) the victim actually was under 13 at the time of the incidents at the Ventura Circle house or, 2) even if she was under 13, whether the nature of the sexual activity satisfied the mandatory elements of the statute under which defendant was charged. While the victim testified well (and the trial court clearly found her a very credible witness), the commonwealth simply failed to elicit the evidence from her or others to prove the elements of the particular crime for which the commonwealth decided to prosecute defendant.
Slate v. Commonwealth (Petty, J.) No. 0702-07-3, March 11, 2008; Bristol Cir. Ct. (Kirksey) James R. Henderson IV for appellant; Gregory W. Franklin, AAG, for appellee. VLW 008-7-118(UP), 11 pp.