819 S.E.2d 440
Va. Ct. App.2018Background
- Victim left a bar with appellant late at night, later found naked from the waist down with vaginal lacerations and significant blood loss; BAC 0.244% and she had limited memory of the events.
- Forensic testing found sperm in the victim’s anus and both victim and appellant’s DNA on blood in appellant’s truck; appellant admitted inserting fingers and a fist into the victim’s vagina and claimed the acts were consensual or accidental.
- A jury convicted appellant of forcible sodomy and aggravated sexual battery (among other counts not at issue here).
- At trial the Commonwealth’s jury instructions defined the offenses by the dispositive element “against [the victim’s] will” and listed, in the disjunctive, three alternative means of overcoming the victim’s will: force, physical helplessness (with knowledge), or mental incapacity (with knowledge).
- Appellant argued those combined, alternative-means instructions were confusing and could allow a non‑unanimous verdict because jurors might disagree about which means was proven; the trial court overruled the objection and the jury convicted; the court polled the jury, and each juror affirmed the verdicts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether instructions that list force, physical helplessness, or mental incapacity in the disjunctive permit a non‑unanimous verdict | Commonwealth: the instructions correctly state the law; the means are alternative ways to show the element (victim acted against her will) | Davison: combining alternative means in one instruction is confusing and could lead jurors to convict without unanimity on the means | No error. The court held the alternatives are means of satisfying a single element (absence of consent), not separate elements requiring unanimity. |
Key Cases Cited
- Schad v. Arizona, 501 U.S. 624 (plurality opinion) (jury need not unanimously agree on a single means of committing a single offense)
- Richardson v. United States, 526 U.S. 813 (1999) (when statute makes separate violations elements, jury must be unanimous as to each)
- Molina v. Commonwealth, 272 Va. 666 (instruction combining force and incapacity assumed erroneous but harmless; consent not required to be separately found if incapacity proven)
- Jackson v. Commonwealth, 266 Va. 423 (means used to overcome will are underlying facts, unanimity not required on which set of facts proved the element)
- Jockisch v. United States, 857 F.3d 1122 (11th Cir.) (no unanimity required as to which statute violated when alternatives are means, not elements)
- Cooper v. Commonwealth, 277 Va. 377 (trial court’s instruction rulings reviewed for correct statement of law)
- Lawlor v. Commonwealth, 285 Va. 187 (instruction stating law incorrectly is reversible error)
- Sarafin v. Commonwealth, 288 Va. 320 (instruction accuracy reviewed de novo)
- Bunch v. Commonwealth, 225 Va. 423 (use of “or” indicates separate factors, proof of any one suffices)
- Turner v. Commonwealth, 538 S.W.3d 305 (Ky. App.) (unanimity satisfied when all jurors convict under a theory supported by the evidence)