Where the court instructed the jury that it could convict defendant of forcible sodomy and aggravated sexual battery if it found either that he overcame the victim’s will by force or because of her physical or mental capacity, there was no error.
Appellant “Davison contended that the jury instructions were flawed because they required the jury to find that he committed the proscribed sexual acts against the victim’s will by force or through her physical helplessness while knowing or having reason to know that she was physically helpless, or through her mental incapacity while knowing or having reason to know of her mental incapacity.
“He argued that these instructions were confusing to the jury and speculated that they could have resulted in a non-unanimous jury with some jurors adopting one theory and others adopting another.
“The Court of Appeals determined that the elements of [forcible sodomy and aggravated sexual battery] were: (1) that Davison committed the proscribed sexual acts against the victim and (2) that those acts were committed without her consent and against her will. …The jury must be unanimous in finding those elements proved.
“Following the weight of authority in other jurisdictions, both federal and state, that have decided the question, the Court of Appeals held that juror unanimity is not required for deciding the means used in the commission of an element of a crime. …
“Thus, if all jurors in the present case agreed that Davison committed the alleged sexual acts without the victim’s consent and against her will, it is immaterial that some jurors may have thought her will was overcome by force while others may have ascribed it to knowing exploitation of her physical helplessness or mental incapacity. …
“Reviewing the record, the Court of Appeals found the evidence at trial sufficient to support a finding that Davison committed both crimes against the victim’s will by each of the means contained in the instructions: force, her physical helplessness or her mental incapacity. … Accordingly, the Court of Appeals held that the trial court correctly instructed the jury and affirmed the convictions. …
We agree with the analysis, the reasoning and the holdings of the Court of Appeals expressed in its published opinion and accordingly affirm the convictions.
Davidson v. Commonwealth. Record No. 182594 (Published Order) Dec. 12, 2019 (COA). David Bernard Hargett for Appellant, David Michael Uberman, Virginia Bidwell Theisen for Appellee. VLW 019-6-090, 3 pp.