Charles Allen Breeden was convicted in a bench trial of several offenses, among them rape, in violation of Code § 18.2-61; use of a firearm in the commission of a felony, in violation of Code § 18.2-53.1; statutory burglary, in violation of Code § 18.2-91; and possession of marijuana, in violation of Code § 18.2-250.1. On appeal, Breeden contends the trial court erred in finding the evidence sufficient to support each of these convictions and in admitting evidence of the complaining witness’ recent complaints of rape under Code § 19.2-268.2. For the reasons that follow, we affirm Breeden’s convictions.
I. BACKGROUND
Familiar appellate principles dictate that “we view the evidence and all reasonable inferences fairly deducible from that evidence in the light most favorable to the Commonwealth, the party that prevailed below.”
Banks v. Commonwealth,
On March 20, 2001, the complaining witness left her house at 7:30 p.m. She locked her house when she left. While she was out, Breeden broke into her house through a back window and waited for her to return. When she returned at 11:30 p.m., Breeden “jumped out from behind the door” with a pistol in his hand.
Holding the gun, Breeden demanded that she tell him where she had been that night. She responded, “What do you mean, where have I been? What are you doing?” He grabbed her face between his hands, repeated his question, pushed her to the couch, and told her to sit down. Leaning over her, he told her this “was going to be the night that he ended it” and “he didn’t have anything to live for.” Putting the gun under his chin, Breeden threatened to “blow his head off.” He then told her he wanted to “make love to her one last time before [he] end[ed] it.” When she told him “no,” Breeden hit her in the face with his hand, causing her nose to bleed “profusely.” As she tried to stop the bleeding, Breeden lifted the front of her sweater, wiped her nose with it, and told her to go upstairs and wash her face. When she refused to go upstairs, Breeden, who had the pistol in one hand and a 12-gauge shotgun in the other, “kicked her in the butt.”
When they got upstairs, Breeden pointed the pistol at himself, again threatened to kill himself, and told her he was going to have intercourse with her. She said “no,” telling him she did not “feel like making love, not with somebody that’s busted me in the nose.” After placing the pistol on a shelf above the bed, Breeden “went ahead and had sex [with her] anyway.” The complaining witness testified on cross-examination that Breeden did not threaten, force, or intimidate her to have sex. Rather, she “was afraid he was going to kill himself.” When he finished having sexual intercourse, Breeden picked up the gun and kept it with him in bed throughout the night. The complaining witness testified she was “frightened,” “scared,” and “terrified” throughout the night and was able to sleep only “a little bit.” She also testified she did not leave the house because she feared he would kill himself.
In the morning, she effectuated her “plan to get away from” Breeden and told him she was going to work. She agreed to give him a ride to his residence but, when he went back into the house to get his shoes, she left without him.
The complaining witness drove to a friend’s house. Her friend immediately observed that she “had been hurt,” noting one of her eyes was swollen, her nose appeared to be broken, and she was “really shaky” and crying. Over Breeden’s objection, the friend
Around 8:30 a.m., Page County Investigator Rebecca Hilliards recorded a detailed statement from the complaining witness concerning the previous night’s events. The entire thirty-nine-page transcript of the statement was admitted into evidence, over Breeden’s objection. When asked during that interview if Breeden threatened her before having sexual intercourse with her, the complaining witness said Breeden “held the gun up under his chin” and told her she would have a “bigger mess” than she already had from when he hit her in the face before. He told her “he was going to make love to her.” She told him “no” and he said he was going to anyway, “[o]ne last time.” He then had sexual intercourse with her.
During an interview the next day with Page County Investigator Carl S. Cook and other investigators, Breeden admitted to possessing some marijuana that was found in his home. He confirmed that admission at trial, explaining that someone had given it to him, but he “hadn’t used it yet.”
Testifying on his own behalf at trial, Breeden denied he raped the complaining witness. He explained that, because she told him she did not want to “make love” with him after he hit her in the nose, he “had sex” with her instead. “Having sex,” he further explained, “is just being with somebody, ... like screwing them. And making love is different.”
The trial court convicted Breeden of, among other crimes, rape, in violation of Code § 18.2-61; use of a firearm in the commission of a felony, in violation of Code § 18.2-58.1; statutory burglary, in violation of Code § 18.2-91; and possession of marijuana, in violation of Code § 18.2-250.1. This appeal followed.
II. SUFFICIENCY OF THE EVIDENCE
A. Standard of Review
When the sufficiency of the evidence is challenged on appeal, we review the evidence “in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.”
Bright v. Commonwealth, 4
Va. App. 248, 250,
B. Rape
Breeden contends on appeal that the evidence was insufficient to convict him of rape because the Commonwealth did not prove the use of force, threat, or intimidation required under Code § 18.2-61. In support of this claim, he points to the complaining witness’ explicit testimony that Breeden did not force, threaten, or intimidate her to have sex.
Code § 18.2-61 reads, in pertinent part, as follows:
If any person has sexual intercourse with a complaining witness who is not his or her spouse or causes a complaining witness, whether or not his or her spouse, to engage in sexual intercourse with any other person and such act is accomplished ... against the complaining witness’s will, by force, threat or intimidation of or against the complaining witness or another person, ... he or she shall be guilty of rape.
(Emphasis added.)
In order to prove force sufficient to support a rape conviction, “[t]he force must
As used in the statute, threat means expression of an intention to do bodily harm. Intimidation may occur without threats. Intimidation, as used in the statute, means 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,
In this case, the evidence amply supports a finding that Breeden used a combination of threats and force to intimidate the complaining witness and overcome her will. 1 When she returned to her house at night, Breeden was there with a gun and held it the entire time. He used physical force against her, including pushing her, hitting her face, and kicking her buttocks, and repeatedly threatened to kill himself. He told her he wanted to “make love to her one last time before [he] end[ed] it.”
Breeden’s words and conduct were clearly intended to put the complaining witness “in fear of bodily harm by exercising such domination and control of her as to overcome her mind and overbear her.”
Sutton,
In view of these events, the fact finder could give little weight to the complaining witness’ testimony that Breeden did not threaten, force, or intimidate her to have sexual intercourse with him because her testimony in its entirety estab
lished that she had sex with him because she “was afraid he was going to kill himself’ and the evidence proved that she told her friend the following morning that Breeden had “raped” her and “forced [her] to have sex with him.” In a case where the evidence offered by a complaining witness is “internally inconsistent,” the finder of fact has “the discretion to ignore” that portion of the witness’ testimony that is contrary to the portion believed to be true.
Seaton v. Commonwealth,
C. Use or Display of a Firearm in the Commission of a Felony
Breeden further contends the evidence was insufficient to convict him of the use or display of a firearm in the commission of a felony because the Commonwealth failed to prove he used or displayed a firearm to accomplish the rape. We disagree.
In order to support Breeden’s conviction under Code § 18.2-53.1, the Commonwealth had to prove Breeden “actually had a firearm in his possession and that he used or attempted to use the firearm or displayed the firearm in a threatening manner while committing or attempting to commit [rape].”
Yarborough v. Commonwealth,
As noted above, the record reveals that Breeden was holding the gun the entire time. Putting the gun under his chin, Breeden told the complaining witness he was going to “blow his head off.” He then told her he wanted to “make love to her one last time before [he] end[ed] it.” After she refused, he picked up a shotgun in his free hand and told her to go upstairs. While holding the shotgun and pistol, he kicked her, forcing her to climb the stairs to the bedroom. At least two more times, Breeden pointed the pistol at himself and threatened to kill himself. “[A]fraid he was going to kill himself,” the complaining witness engaged in sexual intercourse with him against her will. He put the pistol on a shelf above the bed within his reach while he raped her. Later, he retrieved the pistol.
Based on this evidence, the trial court could properly conclude that Breeden “actually had a firearm in his possession and that he used or attempted to use the firearm or displayed the firearm in a threatening manner while committing” the rape. Id. Accordingly, the evidence was sufficient to prove beyond a reasonable doubt that Breeden used a firearm during the commission of the rape.
D. Statutory Burglary
Breeden concedes on appeal that the evidence established he broke into and entered the complaining witness’ house. He contends, however, that the evidence was insufficient to support his conviction for statutory burglary under Code § 18.2-91 because the Commonwealth failed to prove he entered the house with the requisite intent to commit larceny or any other felony or assault and battery. We disagree.
A conviction for statutory burglary is supported by evidence of a breaking and entering “with intent to commit assault and battery.” Code § 18.2-91. “In a prosecution for statutory burglary under Code § 18.2-91, proof that the accused unlawfully entered another’s dwelling supports an inference that the entry was made for an unlawful purpose. The specific intent with which the unlawful entry is made may be inferred from the surrounding facts and circumstances.”
Rob
ertson v. Commonwealth,
Here, the evidence, viewed in the light most favorable to the Commonwealth, proved that Breeden broke into the locked house through a back window. When the complaining witness later arrived, Breeden stepped from behind the front door with a pistol in his hand, demanding to know where she had been. He then grabbed her face, pushed her to the couch, and hit her in the nose.
The trial court, as fact finder, could reasonably infer from this evidence that Breeden had the intent to assault and batter the complaining witness when he broke into and entered her house that night. His unlawful entry into the residence supports the inference that he entered with an unlawful purpose, and the surrounding circumstances support an inference that he entered with an intent to assault and batter. We conclude, therefore, that the evidence was sufficient to prove beyond a reasonable doubt the elements of the offense.
Breeden also challenges the sufficiency of the evidence to sustain his conviction for marijuana possession. He concedes, however, that the issue was not preserved at trial as required by Rule 5A:18, but contends “the ends of justice require this court to review this issue for the first time on appeal.” We disagree.
Pursuant to Rule 5A:18, “[t]he Court of Appeals 'will not consider an argument on appeal [that] was not presented to the trial court,”
Ohree v. Commonwealth,
“ ‘The ends of justice exception is narrow and is to be used’ ” only when the trial court error is “ ‘clear, substan
tial and material.’ ”
Redman v. Commonwealth,
To invoke the ends of justice exception to Rule 5A:18, the record must “affirmatively show[] that a miscarriage of justice has occurred, not ... merely ... that a miscarriage might have occurred.” Mounce v. Commonwealth, 4 Va. App. 433, 436,357 S.E.2d 742 , 744 (1987). To satisfy this burden, an appellant must show “more than that the Commonwealth failed to prove an element of the offense____ The appellant must demonstrate that he or she was convicted for conduct that was not a criminal offense[,] or the record must affirmatively prove that an element of the offense did not occur.” Redman, 25 Va.App. at 221-22,487 S.E.2d at 272-73 .
Marshall,
The record does not support Breeden’s contention that the “ends of justice” exception should apply. Indeed, it plainly demonstrates that Breeden admitted to possessing marijuana that was found inside his home. In light of this evidence, we cannot say that Breeden “was convicted for conduct that was not a criminal offense” or that “an element of the [possession of marijuana] offense did not occur.”
Redman,
III. ADMISSION OF RECENT COMPLAINTS OF RAPE
Breeden further contends the trial court erred in admitting evidence of the complaining witness’ recent complaints of rape to her friend and to Investigator Hilliards. We disagree.
The recent-complaint exception to the hearsay rule is codified as Code § 19.2-268.2, which provides, in pertinent part, as follows:
Notwithstanding any other provision of law, in any prosecution for criminal sexual assault ... the fact that the person injured made complaint of the offense recently after commission of the offense is admissible, not as independent evidence of the offense, but for the purpose of corroborating the testimony of the complaining witness.
“This statute makes admissible, as an exception to the hearsay rule, a recent complaint by the victim of’ a rape.
Mitchell v. Commonwealth,
In support of his claim that the trial court erred in admitting evidence of the recent complaints of rape, Breeden first argues that, at the time the trial court allowed such corroborative evidence to be admitted, “no evidence of rape had yet been presented by the Commonwealth.” Because the Commonwealth
We find Breeden’s argument meritless for two reasons. First, Code § 19.2-268.2 does not require, as a matter of law, that the Commonwealth establish a
prima facie
case of rape before the trial court may properly admit evidence of a recent complaint of rape. Breeden offers no authority, and we are aware of none, that compels the Commonwealth to do so. Code § 19.2-268.2 provides that evidence of the recent complaint is admissible simply “to corroborate the victim’s testimony and other independent evidence of the offense,” without regard to the sufficiency of the evidence.
Id.
at 86,
Second, Breeden’s assertion that the Commonwealth had not presented any evidence of rape when the evidence concerning the recent complaints was admitted is simply wrong. Prior to the admission of the recent-complaint evidence, the complaining witness testified concerning the events that occurred in her house. As we discussed above in considering the sufficiency of the evidence, her testimony clearly tended to show that she was raped.
Thus, we hold that the evidence was admissible “to corroborate [the complaining witness’] testimony and other independent evidence of the offense.”
Mitchell, 25
Va.App. at 86,
Breeden also argues that the trial court should not have admitted the entire thirty-nine-page transcript of the complaining witness’ statement because it gave a detailed and prejudicial account of the alleged rape. Even if the transcript was properly admitted, he further argues, “the only piece of evidence the trial court was allowed to consider was the fact that the complaint was made.”
As Breeden correctly points out on brief, Code § 19.2-268.2 limits the admissibility of evidence concerning recent complaints of sexual assault to corroboration purposes only and proscribes its use as independent evidence.
See Mitchell, 25
Va.App. at 85-86,
Recognizing these proscriptions and principles, the trial judge responded to Breeden’s objection to the admission of the interview transcript as follows:
THE COURT: All right. Well, [the transcript of the interview] is some thirty-nine pages long, so I can’t ... I have reviewed certain pertinent parts, in which she describes non-consensual sex to the investigator. And therefore, based on [Code § 19.2-268.2], I will admit it. But I do not admit it, and will not consider it relevant to other issues not having to do with the nature of the sex act, and what permission was or was not granted.
[PROSECUTOR]: I understand, sir.
THE COURT: But I can’t go through and try to expurgate it here. It is sort of woven throughout it. But it is not being admitted to prove various statements concerning the handling of the guns and things.
Breeden’s counsel raised no additional objection to the trial court’s decision.
Clearly, as the trial judge acknowledged, the interview transcript could not properly be considered in whole because it contained inadmissible details that went beyond the fact of the complaint of rape. The issue before us, then, is whether the trial court’s admission of the transcript was outside the
This Court’s reasoning in
Mitchell
is instructive. In that case, we considered the question whether the hearsay testimony of the victim’s brother detailing the appellant’s alleged proposition of an act of sodomy was admissible as evidence of the victim’s recent complaint of a sexual assault.
Id.
at 85-86,
The statute recognizes the probative value of the victim’s recent complaint of a sexual offense. It is unreasonable to expect the victim of such an offense, particularly a child, to express his report in succinct, technical terms. It is consistent with human experience that such a victim will lodge his complaint in the form of a description of the event, and in that description lies his complaint of the offense. The brother’s testimony described such a complaint. It exceeded in no significant way a report of the offense. The details of the victim’s complaint were elements of the offense. Without those details, the complaint would have been incomplete. Thus, the brother’s testimony was properly admitted into evidence as a report of the victim’s recent complaint of a sexual assault.
Id.
Here, as in Mitchell, the statement to Investigator Hilliards was not reported in succinct and technical terms. Indeed, given the intricate nature of the events, the complaining witness’ account of what happened that night was understandably not a simple, straightforward complaint of rape. Instead, she provided a lengthy, detailed description of the night’s events, recounting, among other things, Breeden’s assorted acts of violence against her, his pointing a gun at himself and threatening to kill himself, her denials of his requests to have sex, her fear that he would kill himself, and, ultimately, his having sex with her despite her denials of his requests. In other words, the fact of the complaint of rape lay in the details of her statement. Thus, as we said in Mitchell, “[t]he details of the ... complaint were elements of the offense. Without those details, the complaint would have been incomplete.” Id. Accordingly, it was proper for the trial court to admit those details “to corroborate [the complaining witness’] testimony and other independent evidence of the offense.” Id.
The fact remains, however, that the statement included inadmissible details that went beyond the fact of the complaint of rape. Finding it impossible to expurgate those inadmissible portions of the thirty-nine-page transcript from the admissible portions because they were inextricably “woven throughout” the statement, the trial judge admitted the entire transcript, with the qualification that he would consider only the admissible portions of the statement related to the alleged rape.
“A trial court is presumed to apply the law correctly.”
Shenk v. Shenk,
The trial judge specifically said he did “not admit [the statement], and [would] not consider it relevant to other issues not having to do with the nature of the sex act, and what permission was or was not granted.” Absent any evidence in the record to the contrary, “we are unwilling to disregard the court’s unequivocal statement” that it would limit its consideration of the transcript to those portions of it that were admissible in accordance with the recent-complaint exception to the hearsay rule.
Overton v. Commonwealth,
IV. CONCLUSION
For these reasons, we hold the trial court did not err in finding the evidence sufficient beyond a reasonable doubt to support each of the convictions addressed herein and in admitting the complaining witness’ recent complaints of rape under Code § 19.2-268.2. Accordingly, we affirm Breeden’s convictions.
Affirmed.
Notes
. It is undisputed that, before the sexual encounter with Breeden, the complaining witness explicitly refused consent to his sexual advances. Indeed, Breeden conceded at trial that she said "no” when he told her he was going to make love to her.