Virginia Lawyers Weekly VA Lawyers Weekly
Where appellant was convicted of two counts of rape, the trial court correctly denied his motion to strike after determining that the victim provided credible testimony about the assaults.
Further, the victim’s lack of consent was sufficient to prove appellant used force to accomplish the assaults.
Inconsistencies
Appellant “Thullah asserts that H.B.’s uncorroborated testimony was inherently incredible because it was ‘contrary to human experience.’ He notes that H.B. gave inconsistent accounts on various topics, including H.B.’s description of his clothing and whether she slept between the two assaults.
“He further argues that H.B.’s account of him taking her shirt and pants off, and taking his pants off while simultaneously holding her hands down, defies logic. Thullah stresses that H.B. dressed, went to work, and left him in her home after the rapes, rather than reporting the assaults immediately.
“He contends that H.B.’s allegations were also impeached by her willingness to drive him back to the military base alone and by waiting two days before reporting the rapes to the police.
“Finally, Thullah asserts that H.B.’s testimony was uncorroborated because of the lack of any noticeable injuries documented in the SANE examination.”
Credibility
“‘Determining the credibility of witnesses … is within the exclusive province of the [fact finder], which has the unique opportunity to observe the demeanor of the witnesses as they testify.’ …
“[A] rational fact-finder could have credited H.B.’s testimony notwithstanding the asserted deficiencies. ‘[A] conviction for … [a] sexual offense[] may be sustained solely upon the uncorroborated testimony of the victim.’ …
“Although Thullah asserts H.B.’s testimony was not credible because she waited two days to disclose the rapes, C.K. [H.B.’s friend] testified that H.B. called her on the morning of the rapes and told her Thullah ‘wanted to rape her.’
“When H.B. reached work, she could not finish her shift, and that afternoon, she texted Thullah that she was going to call the police. Within two days, a hysterically crying H.B. told C.K. that Thullah had raped her twice, and when C.K. confronted Thullah, he did not deny the rapes. Instead, he responded that he was praying H.B. was not pregnant.
“Although H.B.’s initial account given to Detective Conway varied in some respects from her testimony, the inconsistencies were not so significant as to render her testimony inherently incredible. Detective Conway emphasized that his notes of H.B.’s interview summarized her statements and omitted some details.
“As our Supreme Court has held, a witness’s delay in reporting an offense or providing inconsistent statements ‘does not necessarily render the testimony unworthy of belief. [Such] circumstance[s] [are] appropriately weighed as part of the entire issue of witness credibility, which is left to the jury to determine.’
“Whether H.B.’s decision to drive Thullah back to his base after the rapes demonstrates that H.B. did not exhibit any fear of her rapist as would be expected under the circumstances is also a matter for the jury’s determination. …
“Similarly, any skepticism about the physical possibility of Thullah taking off both of their garments while holding H.B.’s hands down does not render her testimony so incredible that a fact-finder would doubt the occurrence of the rapes.
“‘Judging the credibility of the witnesses and weighing the evidence as a whole, the factfinders are free to choose among all reasonable inferences, although some inferences may be more probable than others.’ …
“Additionally, Thullah admitted during cross-examination he lied to the police when he stated H.B. asked him to have sex with her. He also admitted he never told Detective Conway that H.B. consented to sex by ‘nodding’ at him or that his later apologies related solely to his lack of birth control.
“Based on Thullah’s admission that he deleted his text conversations with H.B., the fact-finder could also conclude that he deleted the text messages to conceal his guilt.
“Viewed in the light most favorable to the Commonwealth, the record does not demonstrate that H.B.’s testimony was inherently incredible. … Accordingly, the trial court did not err by denying Thullah’s motion to strike the evidence.”
Force
Thullah argues he did not use force or intimidation to accomplish the assaults.
“‘Virginia’s appellate courts have repeatedly held that in the context of sexual offenses … “force” [is defined to] include[] both actual and constructive force. … Constructive force is established … if the act was undertaken “without the victim’s consent” and “against [the] victim’s will.”’ …
“‘The prosecution does not need to prove “positive resistance” by the victim if the crime was committed “without [his or] her consent.”’ …
“Thus, we find no merit in Thullah’s argument that the trial court misconstrued Martin [v. Commonwealth, 272 Va. 31, 34 (2006),] when it concluded that ‘a sexual act undertaken against the victim’s will, and without the victim’s consent, is an act undertaken with force.’
“[T]he evidence supported a rational finding that Thullah used either actual force or constructive force to engage in sexual intercourse with H.B. the second time. The evidence was sufficient to prove actual force based on H.B.’s testimony and statements that Thullah grabbed her by the wrists, pulled her from the floor, and pushed her onto the bed. The evidence was also sufficient to prove that Thullah engaged in sexual intercourse with H.B. through constructive force because she did not consent.”
Thullah v. Commonwealth, Record No. 0088-22-4, Feb. 21, 2023. CAV unpublished opinion (Chaney). From the Circuit Court of Prince William County. (Hudson). Robert M. Lorey for appellant. Jason S. Miyares, Lucille M. Wall for appellee. VLW 023-7-090, 10 pp.
