COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Frank and Humphreys
Argued at Chesapeake, Virginia
WALT SABOL, JR.
JUDGE ROBERT P. FRANK
OCTOBER 16, 2001
Record No. 2204-00-1
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
E. Preston Grissom, Judge
Timothy Wade Roof for appellant.
Donald E. Jeffrey, III, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Walt Sabol, Jr., (appellant) was convicted by a jury of two
counts of rape, in violation of Code § 18.2-61.
On appeal, he
contends the trial court erred in denying his motion to strike
because (1) the Commonwealth failed to prove that the sexual act
was accomplished against the victim's will by force, threat or
intimidation and (2) the Commonwealth failed to prove the
specific date and time of the offenses.
For the reasons stated
herein, we affirm in part and reverse in part.
The victim, L.D., who was thirty-one years old at the time
of trial, described appellant as her "adopted father" and the
"only father [she had] ever known."
She lived with him and her
mother from the time she was three years old until her
In 1988, while she was still living with appellant and her
mother in California, L.D. took her mother's automatic teller
machine (ATM) card and withdrew $700 from the account without
Appellant "confronted" her soon after the incident,
and she admitted taking the money.
Appellant told L.D. he had
talked to a lawyer who was going to prosecute her for the theft,
and if she "didn't have sexual intercourse with him and [do]
what he wanted [her] to do that [she] was going to jail."
said she believed appellant would carry out the threat.
In early 1989, the victim and her family, including
appellant, moved to Chesapeake, Virginia.
years old at that time.
L.D. was twenty-one
L.D. indicated she moved to Virginia
with her parents because she had nowhere to live and "[b]ecause
my dad's threat about his bank card that also hung over my
The family moved to their Chesapeake address on Adair Lane
in February 1989.
One day in the fall of 1990, about "a year and a half"
after they had moved to Chesapeake, appellant "called [her] in"
while she was raking leaves.
L.D. did not want to go inside,
but she did.
Appellant then "led [her] down the hallway" and told her
she had to "take care of him," which she knew meant she had "to
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have sex with him."
While he was leading her down the hallway,
she told him how much she "hated" him.
She described appellant
as being "behind [her] kind of pushing [her] towards the
bedroom, leading [her] to the bedroom," where she "would [lie]
on the bed."
He then got "on top of [her]" and "put his penis
into [her] vagina."
She held her arms in a way that minimized
her physical contact with appellant and told him that she "hated
him and [she] hated [him] doing it."
When he was finished, she
pushed him away and went into the bathroom to "wipe it all
During cross-examination, the victim stated this rape
took place in the "fall" of 1990, about "a year-and-a-half"
after they had moved into the Chesapeake house.
The other incident occurred when her mother was "away in
During cross-examination, L.D. stated this incident
occurred in May 1990.
During his testimony, appellant confirmed
his wife was in England in May 1990.
Appellant again told L.D. to "take care of him."
said she "didn't want to," he threatened to revoke her privilege
to use the family car and to withhold money from her.
"went back in the bedroom" because she "just felt like [she] had
She explained, "My whole life he has controlled me.
never had to work.
to care for myself.
I never had to do anything.
I didn't have
My parents took care of it for me."
When L.D. got back to the bedroom, she lay on the bed, and
appellant "pulled down his pants and got on top of [her]."
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then "stuck his penis in [her] vagina."
She "just laid there
and pretended it wasn't really happening" and "looked up at the
When it "ended," she "push[ed] him off" and went into
L.D. said she "continued" to "allow appellant to have sex"
with her because he "still held that incident of the ATM . . .
over [her] head."
She indicated that, although she may have
been able to move in with her uncle, she "grew up having
everything, and to go from everything to living somewhere where
[she] didn't have [anything], it might sound crazy, but it was
- it's hard to go from one lifestyle to another."
She said she
did not think she could "make it on [her] own" because she did
not have a car or money and had only a high school education.
She explained that appellant "always bought [her] affection."
L.D. finally went to the police in January 1999 after she
and appellant got into an argument about her eight-year-old
daughter staying alone with him.
She reported the rapes to
police because she was "tired of hiding it or pretending it
never happened," and she "didn't want anything to happen to
While L.D. told her husband about the rapes in
1991, before they were married, she never confided in her mother
During cross-examination, L.D. admitted she could have
lived with an uncle instead of moving with her mother and
appellant to Chesapeake.
She also conceded that she continued
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to have a "good relationship" with appellant following the rapes
and in fact continued to live in his house until 1994.
Appellant denied any sexual involvement with L.D.
Appellant moved to strike the evidence at the end of the
Commonwealth's case, alleging that the Commonwealth had failed
to prove the "force, threat or intimidation" element of the
charges and the Commonwealth had failed to prove the rapes
occurred in the time frames alleged in the warrants.
his motion following the defense's case-in-chief in regards to
the sufficiency of evidence to show "force, threat or
However, he did not renew his motion claiming
the Commonwealth failed to prove the rapes had occurred during
the time frames alleged in the warrants.
In overruling appellant's motion to strike following the
Commonwealth's case, the trial judge pointed to testimony of
appellant's threats to put L.D. in jail if she did not have sex
with him and of the control appellant had over L.D. as
sufficient evidence of force and intimidation to overcome the
The trial court further found evidence of force when
appellant pushed L.D. toward the bedroom.
FORCE, THREAT OR INTIMIDATION
In order to find appellant guilty of rape under Code
§ 18.2-61(A)(i), the evidence must support a finding that the
sexual intercourse was accomplished against the victim's will
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"by force, threat or intimidation."
In its review, this Court
examines the evidence and all the reasonable inferences fairly
deducible therefrom in the light most favorable to the
Clark v. Commonwealth, 30 Va. App. 406, 408-09,
517 S.E.2d 260, 261 (1999).
However, this review must occur
within the parameters set by Code § 18.2-61, which are strictly
construed against the Commonwealth.
Battle v. Commonwealth, 12
Va. App. 624, 627, 406 S.E.2d 195, 196 (1991).
Force generally requires proof of more than "merely the
force required to accomplish . . . the statutorily defined
Johnson v. Commonwealth, 5 Va. App. 529, 534,
365 S.E.2d 237, 240 (1988).
the victim's will.
The force must be used to overcome
Id. at 535, 365 S.E.2d at 240.
must be evidence of 'some array or show of force in form
sufficient to overcome resistance.'"
Jones v. Commonwealth, 219
Va. 983, 986, 252 S.E.2d 370, 372 (1979) (quoting Davis v.
Commonwealth, 186 Va. 936, 946, 45 S.E.2d 167, 171 (1947)).
Whether force was used to overcome the victim's will is a
factual question, and this Court defers to the fact finder's
decision unless plainly wrong.
See Young v. Commonwealth, 185
Va. 1032, 1042, 40 S.E.2d 805, 810 (1947).
Evidence that appellant pushed L.D. down the hall toward
the bedroom to accomplish the fall 1990 rape was sufficient
proof of the use of force to overcome her will.
court found when ruling on the motion to strike:
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As the trial
If you consider the evidence in the light
most favorable to the Commonwealth in this
case, you have non-consensual acts that were
committed against the victim, and force is
present even though it may not be so great
as to cause bodily harm. She testified that
[during] one of the incidents he was pushing
her down the hallway against her will
towards the bedroom, that none of it was
done with her consent, that she held her
body in such a way that he could not get as
close to her as he otherwise could, and that
she demanded that he not do it . . . .
The record here supports the jury's finding of guilt on one
While appellant pushed L.D. down the hall, he said she
"had to take care of him."
Although L.D. expressed her hatred
of him, appellant ignored her statements and continued to push
her toward the bedroom and the bed.
This evidence supports a
finding that appellant used force to overcome the victim's will.
We cannot say that the "jury's verdict . . . is plainly wrong or
without evidence to support it."
Ashby v. Commonwealth, 33 Va.
App. 540, 548-49, 535 S.E.2d 182, 187 (2000).
However, no evidence of force was presented in relation to
the May 1990 incident.
L.D. walked to the bedroom by herself
and undressed herself; appellant touched her only enough to
commit the sexual intercourse.
Therefore, the Commonwealth had
to prove appellant used either a threat or intimidation to
overcome the victim's will.
"'[T]hreat means expression of an intention to do bodily
Morse v. Commonwealth, 17 Va. App. 627, 634, 440 S.E.2d
145, 150 (1994) (quoting Sutton v. Commonwealth, 228 Va. 654,
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663, 324 S.E.2d 665, 669-70 (1985)).
In Bivens v. Commonwealth,
19 Va. App. 750, 752, 454 S.E.2d 741, 742 (1995), a robbery
case, this Court defined a threat as "an overt expression, by
words or conduct, of a present intention to commit an immediate
act of violence or force against the victim."
No evidence suggests appellant expressly threatened L.D.
with bodily harm.
He did threaten, apparently years earlier, to
have her prosecuted for theft.
However, nothing in the record
suggests this threat was a threat to do bodily harm or that L.D.
perceived it as a threat to her physically.
"Intimidation differs from threat in that it occurs without
an express threat by the accused to do bodily harm."
753, 454 S.E.2d at 742-43.
Intimidation requires "putting a
victim in fear of bodily harm by exercising such domination and
control of her as to overcome her mind and overbear her will.
Intimidation may be caused by the imposition of psychological
pressure on one who, under the circumstances, is vulnerable and
susceptible to such pressure."
Sutton v. Commonwealth, 228 Va.
654, 663, 324 S.E.2d 665, 670 (1985).
This fear of bodily harm
must derive from some conduct or statement of the accused.
Harris v. Commonwealth, 3 Va. App. 519, 522, 351 S.E.2d 356, 357
In Sutton, the fear of bodily harm was created by the
threat to return the fifteen-year-old victim to her father, who
"beat her 'all the time,'" unless she allowed her uncle to have
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sexual intercourse with her.
228 Va. at 659-60, 324 S.E.2d at
The girl also feared Sutton himself would beat her.
at 660, 324 S.E.2d at 668.
Although the threat was not explicit, the evidence in
Sutton supported a finding of intimidation, given the proven
danger of bodily harm if the victim were returned to her father
and the testimony that the victim feared bodily injury by
Sutton's hand because he appeared so angry when she refused him.
See also Woodard v. Commonwealth, 27 Va. App. 405, 410, 499
S.E.2d 557, 559 (1998).
Although the evidence is viewed in the light most favorable
to the Commonwealth, Higginbotham v. Commonwealth, 216 Va. 349,
352, 218 S.E.2d 534, 537 (1975), no evidence in this record
supports the finding that appellant intimidated L.D. into sexual
intercourse with him while his wife was away in England.
victim never claims appellant, through words or deeds, put her
in fear of bodily harm.
Nothing in the record suggests she was
ever in danger of bodily harm.
L.D. never testified that she
was actually in fear for her personal safety, only that she was
afraid of losing the lifestyle to which she had become
This case is very different from Myers v. Commonwealth, 11
Va. App. 634, 400 S.E.2d 803 (1991).
In Myers, the Court found
intimidation because Myers told the victim "she was going to do
something for him or get out [of the truck] and walk," and the
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victim "was frightened at the prospect of being alone and on
foot in a deserted area and was fearful of whom she might meet
and what might be done to her."
Id. at 637, 400 S.E.2d at 805.
From this evidence, the fact finder could infer that Myers's
statement intimidated the victim, that the prospect of being
alone in a deserted area, far from any community, put her in
fear of bodily harm and overcame her will to resist his demand
for sexual intercourse.
Here, the victim never testified she feared bodily harm if
she refused appellant's demands.
While she did testify he was
like a father to her, that relationship by itself does not
support an inference of intimidation.
This Court recently considered a similar case where the
father of a thirteen-year-old girl lay down beside her in bed
and began fondling her.
551 S.E.2d 1 (2001).
Bower v. Commonwealth, 36 Va. App. 382,
The Commonwealth in Bower argued that the
evidence of their familial relationship and Bower's physical size
was sufficient to prove intimidation.
We find no language . . . that creates a
subclass of victims over age twelve where
evidence of intimidation, force or threat is
sufficiently proved based solely on
parentage or size differential. The
Commonwealth must prove beyond a reasonable
doubt events or a course of conduct that
shows the victim's will has been overcome by
Bower was charged with object sexual penetration in
violation of Code § 18.2-67.2(A)(2), which, like Code
§ 18.2-61(A)(i), requires proof of force, threat or
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such dominion and control as to put the
victim in fear of bodily harm.
Id. at 391, 551 S.E.2d at 5.
Here also, the Commonwealth failed to prove appellant used
force, threat or intimidation to overcome L.D.'s will in May
DATES ON WARRANTS
Appellant contends the Commonwealth did not prove the rapes
occurred on a specific date and at a specific time.
that the victim did not testify about a specific day, month, or
year in which these events occurred.
He made this argument to
the trial court in a motion to strike at the close of the
Commonwealth's evidence and to the jury in his closing argument.
To preserve an issue for appeal, appellant must make a
contemporaneous objection to the court's ruling.
"[I]n a jury trial, the closing argument is addressed to the
jury, not the trial judge, and does not require the trial judge
to rule on the evidence as a matter of law.
Only a motion to
strike the evidence accomplishes that objective [of preserving a
sufficiency issue] in a jury trial."
Campbell v. Commonwealth,
12 Va. App. 476, 481, 405 S.E.2d 1, 3 (1991) (en banc).
Appellant did not make his argument to the trial court at
the close of all the evidence, after the jury returned with the
guilty verdicts, or at the final sentencing hearing.
time the trial court considered the sufficiency of the evidence
to prove the dates of the offenses was before appellant
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testified and corroborated the time frame for at least one of
Appellant, therefore, has not preserved this issue for
Contrast Zook v. Commonwealth, 31 Va. App. 560, 568,
525 S.E.2d 32, 36 (2000) (holding that under appropriate
circumstances and with appropriate rulings by the trial court,
an untimely objection to evidence can preserve an issue for
For these reasons, we affirm the conviction for the fall of
1990 rape offense.
The trial court record in this case does not
clearly delineate which docket number pertains to which charge.
Accordingly, this matter is remanded to the trial court to
determine which warrant and docket number pertains to the May
1990 rape conviction.
Upon such determination, the trial court
is further directed to dismiss the appropriate warrant.
Affirmed in part and
reversed and remanded
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