Jerome Darnell Holmes v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Moon, Judge Willis and Senior Judge Hodges
Argued at Alexandria, Virginia
JEROME DARNELL HOLMES
v. 	Record No. 1151-94-4 	MEMORANDUM OPINION*
PER CURIAM
COMMONWEALTH OF VIRGINIA 	OCTOBER 24, 1995
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Robert W. Wooldridge, Judge
Thomas P. Sotelo (Leiner, Hicks & Sotelo,
P.C., on briefs), for appellant.
Katherine P. Baldwin, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Jerome Darnell Holmes (appellant) was convicted of rape and
sodomy. 	On appeal, appellant attacks the rape conviction and
contends that the trial court erred in refusing to instruct the
jury on the lesser included offense of attempted rape. 	We
disagree, and affirm the conviction.
The victim testified that appellant pushed the victim into
the mud. 	The victim fought appellant as he removed her clothing
and tried to rape her. 	However, appellant was unable to maintain
an erection. 	The victim then stated that appellant "was able to
penetrate. . . . Into [her] vagina." 	She testified appellant
"was holding the base of his penis, in order to penetrate [her]."
She further testified, "I could feel his hand -- I could feel
his fist hitting me. 	Because his penis was in his hand. 	He was
holding it." 	On cross-examination, the victim said she did not
see appellant's penis penetrate her vagina.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

2
Later, at the hospital, the victim was examined by a sexual
assault nurse examiner. 	The nurse testified that the victim's
vagina contained "grass and dirt and pieces of rock and other
pieces of debris . . . ." 	The nurse further testified, "It is my
belief that there was penetration." 	On cross-examination, the
nurse testified that, based on the physical evidence, the
penetration could have been accomplished by digital penetration.
The nurse also stated that the victim "was sure of penile
penetration."
The forensic serologist testified that sperm was found on
"the side external genitalia, vaginal, cervical, perianal
buttocks and anal rectal smears . . ." taken from the victim.
Appellant presented no evidence and offered Jury Instruction
A, which addressed rape, attempted rape and sexual battery. 	The
trial court refused to grant the instruction. 	Appellant argues
on appeal that the trial court erred in refusing to instruct the
jury on the lesser included offense of attempted rape.1
"A reviewing court's responsibility in reviewing jury
instructions is 'to see that the law has been clearly stated and
that the instructions cover all issues which the evidence fairly
raises.'" 	Darnell v. Commonwealth, 6 Va. App. 485, 488, 370
S.E.2d 717, 719 (1988) (citation omitted). 	"If there is any
evidence that would support a conviction for the lesser included
1 The Commonwealth asserts that appellant never argued to
the trial court that the trial court should have given a
rape/attempted rape instruction, and that his argument on appeal
is barred by Rule 5A:18. 	However, the record indicates that the
trial court separately considered the attempted rape and sexual
battery arguments. 	Thus, the purpose of Rule 5A:18 was
fulfilled.

3
offense, the trial court must, upon request of counsel, instruct
the jury as to the lesser included offense. 	An instruction,
however, must be based on more than a scintilla of evidence."
Miller v. Commonwealth, 5 Va. App. 22, 24, 359 S.E.2d 841, 842
(1987) (citations omitted). 	"Attempted rape includes the intent
to engage in sexual intercourse, and some direct, yet
ineffectual, act toward its consummation." 	Fortune v.
Commonwealth, 14 Va. App. 225, 228, 416 S.E.2d 25, 27 (1992).
The evidence supported a jury instruction on rape only. 	The
victim testified that appellant's penis penetrated her vagina.
The victim testified that she did not actually observe
appellant's penis penetrate her vagina. 	The nurse testified
that, based on the physical evidence, the penetration could have
been accomplished by digital penetration. 	Further, the forensic
serologist testified that sperm was found on the vaginal and
cervical smears taken from the victim. 	None of this evidence
reasonably suggested penetration of the victim's vagina by an
object other than appellant's penis. 	See Tuggle v. Commonwealth,
228 Va. 493, 511-12, 323 S.E.2d 539, 550 (1984), vacated on other
grounds, 471 U.S. 1096, aff'd, 230 Va. 99, 334 S.E.2d 838 (1985).
The Commonwealth's evidence did not support the theory of
an ineffectual effort to penetrate. 	Appellant presented no
evidence. 	Accordingly, the trial judge did not err in refusing
to give the instruction on attempted rape.
For the foregoing reasons, the judgment of the trial court
is affirmed.
Affirmed.