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NEWBY v. COMMONWEALTH OF VIRGINIA (unpublished)


NEWBY v. COMMONWEALTH OF
VIRGINIA
(unpublished)


JULY 1, 1997
Record No. 2473-95-2

GEORGE ROBERT NEWBY, JR.

v.

COMMONWEALTH OF VIRGINIA

Herbert C. Gill, Jr., Judge
Present: Judges Benton, Elder and Senior Judge Cole
Argued at Richmond, Virginia

MEMORANDUM OPINION [1] BY
UDGE LARRY G. ELDER
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY

John B. Boatwright, III (Boatwright & Linka, on briefs), for
appellant.

Richard B. Smith, Assistant Attorney General (James S. Gilmore,
III, Attorney General, on brief), for appellee.


A jury convicted George Robert Newby of rape, forcible sodomy,
and animate object sexual penetration. See Code ?? 18.2-61, 18.2-67.1, and
18.2-67.2. On appeal, Newby argues that the trial judge erred in
(1) denying Newby’s motion to strike the evidence on the charge
of forcible sodomy, (2) denying Newby’s motion for a mistrial,
and (3) refusing to inform the jury, in response to a question
posed by the jury, that any sentence imposed would not be subject
to parole. For the reasons that follow, we affirm the
convictions.

I.

At trial, the victim testified that on the first night that
she began working as a waitress and bartender at Crossflite
Restaurant, Newby, a customer, was drinking beer and playing
pool. During the course of the evening, he conversed with the
victim about her family and he made several comments about her
appearance. At closing time when another female employee asked
customers to leave, Newby and two other customers were still in
the bar. After Newby and the other customers left, the victim and
the other employee began cleaning and closing the bar. When the
other employee had difficulty locking the front door, she opened
the door and was startled to find Newby leaning against the wall
outside. Newby offered to help and reentered the restaurant. When
the two female employees finished cleaning, Newby was still
present. Newby walked the victim to her car and asked for a ride
home.

The victim agreed and drove following Newby’s directions. When
she entered the driveway on a nearby street, Newby "brought
his [left] arm . . . around [her] neck." As she tried to
pull away, Newby tightened his grip, threatened to kill her, and
put a sharp blade across her nose. Newby then pushed her out of
the car and into the woods. Newby made her undress, threw her
clothing into a ditch, and then "put his penis in [her] vagina." The victim testified that because she "was
very dry and unlubricated," Newby removed his penis from her
and "put his mouth on [her] vaginal area and . . .
drooled." The victim further specified that Newby’s mouth
"was on [her] vulva area."

After these events, Newby stood up, pulled his pants up, and
threw the victim’s jeans to her. Newby told her that if she told
anybody he would kill her and her children. After the victim
repeatedly assured Newby that she would not tell anyone, Newby
stated, "This isn’t the first time that I raped and you
better not be the first one to tell."

When Newby told the victim that she could leave, she started
her car and drove into a ditch. Newby went to the car and began
to push the car out of the ditch. When they could not move the
car, Newby left, and the victim walked to a gas station. She
called one of her female friends and told her that she had been
raped. When her friend arrived, a police officer was with her.
The officer called an ambulance to take the victim to the
hospital.

At the conclusion of the Commonwealth’s case-in-chief, the
trial judge denied Newby’s motion to strike the Commonwealth’s
evidence on the charge of forcible sodomy. Newby then testified
that the victim offered him a ride home on her own initiative,
stopped the car, walked with him to a ravine area, and
voluntarily engaged in mutual kissing and fondling. Newby
testified that they engaged in consensual sexual intercourse. He
further testified that while doing so he "did lick [her] vaginal area and [he] did penetrate her with his [penis] and have
sex, but at no time did she say, ‘No,’ did she say, ‘stop,’ or
anything."

On cross-examination, the Commonwealth’s attorney asked Newby,
"[Y]ou have, in fact, categorized yourself to other people
as a rapist, is that correct?" Before Newby responded, his
attorney objected and requested a mistrial. After hearing
argument, the trial judge overruled the motion for a mistrial and
instructed the jury to disregard the question.

At the conclusion of all the evidence, the jury found Newby
guilty of rape, animate object sexual penetration, and forcible
sodomy. When the jury was deliberating regarding the proper
sentence to impose, the jury asked the judge the following
questions: "Does the no parole law apply here?" and
"If not, when will he be eligible for parole?" Newby’s
attorney requested the judge to instruct the jury regarding the
unavailability of parole. The trial judge denied that request and
told the jury that "[t]he only way that I can answer those
questions is . . . that you cannot concern yourself with what may
happen afterwards. You must impose what sentence you feel is just
under the circumstances." The jury imposed a sentence of
thirty years for the rape conviction, thirty years for the
forcible sodomy conviction, and twenty-five years for the animate
object sexual penetration conviction.

II.

Newby argues that the evidence was insufficient to prove
forcible sodomy because the testimony failed to establish
penetration of the victim’s sexual organs. We disagree.

"[T]he issue of penetration is a question for the jury
upon the evidence in the case and . . . the penetration that must
be shown need be only slight." Ryan v. Commonwealth,
219 Va. 439, 444, 247 S.E.2d 698, 702 (1978). "[P]enetration
of any portion of the vulva, which encompasses the ‘external
parts of the female sex organs considered as a whole’ and
includes, beginning with the outermost parts, the labia majora,
labia minora, hymen, vaginal opening and vagina, is sufficient to
show penetration." Love v. Commonwealth, 18 Va. App.
84, 88, 441 S.E.2d 709, 712 (1994) (citation omitted).

"On appeal, we must view the evidence in the light most
favorable to the Commonwealth." Id. at 87, 441 S.E.2d
at 711. The victim testified that Newby "put his mouth on
[her] vaginal area" and "on [her] vulva area." In
addition, Newby testified that he "did lick [her] vaginal
area." Based on the evidence, the jury could have found that
during Newby’s protracted assault of the victim and effort to
moisten her, his mouth penetrated her vulva. Indeed, the victim
testified that his mouth was on her vulva and that she could feel
heat emanating from his mouth. We cannot say that this evidence
was insufficient, as a matter of law, to prove penetration. See
Ryan, 219 Va. at 441-45, 247 S.E.2d at 700-02 (finding the
evidence sufficient where the victim testified that the defendant
licked her vagina).

III.

Newby argues that the trial judge erred in denying his motion
for a mistrial after the Commonwealth’s attorney asked Newby, on
cross-examination, whether Newby had "categorized [him]self
to other people as a rapist." We disagree.

"Whether to grant a mistrial is a matter resting within
the sound discretion of a trial [judge]." Wright v.
Commonwealth
, 245 Va. 177, 188, 427 S.E.2d 379, 387 (1993), vacated
on other grounds
, 512 U.S. 1217 (1994).

Whether improper evidence is so prejudicial as to require a
mistrial is a question of fact to be resolved by the trial
[judge] in each particular case. Unless this Court can say that
the trial [judge's] resolution of that question was wrong as a
matter of law, it will not disturb the trial [judge's] decision
on appeal. A judgment will not be reversed for the improper
admission of evidence that a [judge] subsequently directs a jury
to disregard because juries are presumed to follow prompt,
explicit, and curative instructions. When the evidence is so
prejudicial that it "probably remained on the minds of the
jury and influenced their verdict," however, the judgment
will be reversed on appeal.

Beavers v. Commonwealth, 245 Va. 268, 280, 427 S.E.2d
411, 420 (1993) (citations omitted).

In the argument on the motion for a mistrial, the
Commonwealth’s attorney represented that Newby had earlier
authored a letter in which he described himself as a rapist and
made other statements. The trial judge ruled that any testimony
about the document was inadmissible on grounds of relevance and
remoteness. Under the circumstances of this case, we cannot say
that the question was "so prejudicial as to require a
mistrial." Id. Significantly, Newby did not answer
the question. Moreover, the judge immediately gave a curative
instruction that admonished the jury "to disregard the . . .
question." Under these circumstances, we hold that the trial
judge did not abuse his discretion in concluding that a mistrial
was unwarranted.

IV.

Newby next argues that the trial judge erred in refusing to
inform the jury, in response to the jury’s question, that Newby
would be ineligible for parole. We disagree.
A panel of this Court, which was presented with a strikingly
similar factual scenario, has already held that a trial judge
does not commit error by refusing to inform the jury that the
defendant is not eligible for parole. See Mosby v.
Commonwealth
, 24 Va. App. 284, 482 S.E.2d 72 (1997). We are
bound by this ruling and accordingly hold that the trial judge
did not commit error on this ground.

Accordingly, we affirm the convictions.

Affirmed.

_____________

Benton, J., concurring and dissenting.

I concur in Parts I, II, and III of the majority opinion. For the
reasons more particularly stated in my dissenting opinion in Walker
v. Commonwealth
, __ Va. App. ___, ___, ___ S.E.2d ___, ___
(1997) (Benton, J., dissenting), I do not concur in Part IV.

While deciding the proper sentence to impose upon Newby, the
jury asked the trial judge, "Does the no parole law apply
here?" and "If not, when will he be eligible for
parole?" [2] The jury’s effort to determine
Newby’s parole eligibility conclusively establishes that the
issue of parole had an impact on the jury’s sentencing decision.

It is error not to instruct the jury when the jury may make
findings based upon a mistaken belief of the law. See Martin
v. Commonwealth
, 218 Va. 4, 7, 235 S.E.2d 304, 305 (1977)
(per curiam). After the jury asked about parole, the judge knew
the jury was unaware that Newby was ineligible for parole. Under
these circumstances, I would hold that the trial judge erred in
refusing to answer the jury’s question. See Walker,
___ Va. App. at ___, ___ S.E.2d at ___ (Benton, J., dissenting)
("The courts should not permit jurors to sentence based upon
the erroneous belief that parole release still exists.").

To exacerbate matters, the trial judge responded to the
question by telling the jury, "you cannot concern yourself
with what may happen afterwards. You must impose what sentence
you feel is just under the circumstances." By referring to
parole as something that "might happen," the judge
implied that parole was, in fact, available.

It is true, as the State points out, that the trial court
admonished the jury that "you are instructed not to consider
parole" and that parole "is not a proper issue for your
consideration." Far from ensuring that the jury was not
misled, however, this instruction actually suggested that parole was
available but that the jury, for some unstated reason, should be
blind to this fact. . . . While juries ordinarily are presumed to
follow the court’s instructions, we have recognized that in some
circumstances "the risk that the jury will not, or cannot,
follow instructions is so great, and the consequences of failure
so vital to the defendant, that the practical and human
limitations of the jury system cannot be ignored."

Simmons v. South Carolina, 512 U.S. 154, 170-71, 114 S.
Ct. 2187, 2197 (1994) (plurality opinion) (citations omitted).
The trial judge’s response to the jury’s question did not aid in
alleviating the confusion, and in fact, it may have misled the
jury. Thus, I would hold that the trial judge erred by providing
a jury instruction that was misleading. Cf. Blevins v.
Commonwealth
, 209 Va. 622, 628, 166 S.E.2d 325, 330 (1969).

I would therefore remand the case for re-sentencing in
accordance with Code ?
19.2-295.1.

 

FOOTNOTES:

[1] Pursuant to Code ? 17-116.010, this opinion
is not designated for publication.

[2] "The essence of parole is
release from prison, before the completion of sentence, on the
condition that the prisoner abide by certain rules during the
balance of the sentence." Morrissey v. Brewer, 408
U.S. 471, 477 (1972).

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