NOTICE: The opinions posted here are subject to formal
revision. If you find a typographical error or other formal error, please notify
the Virginia Court of Appeals.
COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Senior Judge Overton
Argued by teleconference
Record No. 2668-02-2
JOHN IAN MITCHELL
COMMONWEALTH OF VIRGINIA
OPINION BY JUDGE NELSON T. OVERTON
OCTOBER 28, 2003
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Bruce H. Kushner, Judge
Melvin J. Radin for appellant.
Donald E. Jeffrey, III, Assistant Attorney General (Jerry W.
Attorney General, on brief), for appellee.
John Ian Mitchell appeals his bench trial conviction for
forcible sodomy. He argues the
evidence was insufficient to support his conviction.
Specifically, he contends the Commonwealth
failed to establish he performed the act through the use of the
victim’s mental incapacity. For the
reasons that follow, we disagree and affirm his conviction.
"On appeal, ‘we review the evidence in the light most
favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible
therefrom.’" Archer v. Commonwealth,
26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation
So viewed, the evidence proved that on December 8, 2001, Michael
Wright picked up
Ross Klinefelter, a twenty-two-year-old mentally retarded male.
Wright drove Klinefelter to
Mitchell’s residence. Mitchell played a pornographic videotape
depicting homosexual sex acts
and asked Klinefelter if he was "getting turned on."
Mitchell then performed oral sex on
Klinefelter. Klinefelter became upset, left the house, and
reported the incident to his mother who
contacted the police.
In a statement to the police, Mitchell initially denied having
performed oral sodomy on
Klinefelter, but later admitted having done so. Mitchell also
remarked that he knew Klinefelter
was mentally ill and that he thought Klinefelter "did not
know what was going on."
In pertinent part, Code ? 18.2-67.1 provides:
An accused shall be guilty of forcible sodomy if he or she
in . . . fellatio . . . with a complaining witness who is not
his or her
spouse . . . and . . . [t]he act is accomplished against the
will of the
complaining witness . . . through the use of the complaining
witness’s mental incapacity . . . .
The evidence established Klinefelter is mentally retarded.
Mitchell admitted he knew Klinefelter
was retarded, and in his written statement acknowledged he did
not think Klinefelter knew what
was happening. Mitchell, alone with Klinefelter in his bedroom,
played a pornographic video in
order to arouse his victim. He admitted he then performed oral
sex on Klinefelter. The evidence
also indicated that Klinefelter did "not understand ‘the
nature and consequences of the sexual act
involved.’" Adkins v. Commonwealth, 20 Va. App. 332,
343, 457 S.E.2d 382, 387 (1995)
"The inferences to be drawn from proven facts, so long as
they are reasonable, are within the
province of the trier of fact." Hancock v. Commonwealth, 12
Va. App. 774, 782, 407 S.E.2d 301,
306 (1991). Based upon the evidence presented, the trial court
reasonably concluded Mitchell
performed the sex act through the use of Klinefelter’s mental
incapacity. The Commonwealth’s
evidence was competent, was not inherently incredible, and was
sufficient to prove beyond a
reasonable doubt that Mitchell was guilty of forcible sodomy.
Accordingly, we affirm the decision of the trial court.