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MITCHELL v. COMMONWEALTH




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MITCHELL

v.

COMMONWEALTH


COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Bumgardner and Senior Judge Overton

Argued by teleconference

Record No. 2668-02-2

JOHN IAN MITCHELL

v.

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.
Kilgore,

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
omitted).

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
engages

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)

(citation omitted).

"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.

Affirmed.

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