Daniel Louis Moneymaker v. Commonwealth of Virginia ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Willis and
Senior Judge Overton
Argued at Alexandria, Virginia
DANIEL LOUIS MONEYMAKER
MEMORANDUM OPINION * BY
v. Record No. 0641-00-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
JANUARY 23, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PAGE COUNTY
John J. McGrath, Jr., Judge
(Robert A. Downs, on brief), for appellant.
Appellant submitting on brief.
(Mark L. Earley, Attorney General; Marla
Graff Decker, Assistant Attorney General, on
brief), for appellee. Appellee submitting on
brief.
Daniel Louis Moneymaker (appellant) was convicted in a bench
trial of sexual penetration with an animate object by force,
threat or intimidation, in violation of Code § 18.2-67.2, and
attempted forcible sodomy, in violation of Code § 18.2-67.5. 1 On
* Pursuant to Code § 17.1-413 this opinion is not
designated for publication.
1
The Court notes that the sentencing order indicates that
the appellant was found guilty of attempted forcible sodomy in
violation of Code § 18.2-67.1. However, as the appellant was
found guilty under Code § 18.2-67.5, this matter is remanded to
the trial court for the sole purpose of correcting that clerical
error to reflect that the appellant was convicted of attempted
forcible sodomy under Code § 18.2-67.5.
appeal, he contends the evidence was insufficient to prove his
guilt. We disagree and affirm his convictions. 2
I. Background
When an accused challenges the sufficiency of the evidence on
appeal, we must examine the evidence in the light most favorable
to the Commonwealth, the prevailing party below, granting to that
evidence all reasonable inferences fairly deducible therefrom.
See Juares v. Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677,
678 (1997). So viewed, the evidence established that between May
22 and May 27, 1997, Jeffrey Carver (Carver) and appellant were
incarcerated in the Page County jail. Appellant frequently
exposed himself to Carver and attacked him. During these attacks,
appellant told Carver that "he was going to fuck [Carver] up the
ass" and "[y]ou're going to be my bitch."
On May 26, during one such attack, Carver was being held down
when he "felt somebody stick their fingers up my butt." Appellant
"had his hand up underneath my butt, like that. And I was trying
to get up, and he was sticking me in the butt with his fingers."
Carver was unsure how far the finger went in but it was "[e]nough
to where it hurt." Jason Campbell (Campbell), another inmate,
observed this attack and corroborated Carver's testimony regarding
appellant's actions and statements. Based upon the totality of
the evidence, the trial court found appellant guilty as charged.
2
Appellant was also convicted of assault and battery. He
does not challenge this conviction.
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II. Sexual Penetration with an Animate Object
Appellant alleges that the evidence was insufficient to
convict him of sexual penetration with an animate object. In a
bench trial, it is within the province of the trial court "'to
assess the credibility of the witnesses and the probative value
to be given their testimony.'" Mercer v. Commonwealth, 259 Va.
235, 242, 523 S.E.2d 213, 217 (2000) (quoting Richardson v.
Richardson, 242 Va. 242, 246, 409 S.E.2d 148, 151 (1991)). "'On
review, this Court does not substitute its judgment for that of
the trier of fact. Instead, the [verdict] will not be set aside
unless it appears that it is plainly wrong or without supporting
evidence.'" Jett v. Commonwealth, 29 Va. App. 190, 194, 510
S.E.2d 747, 748 (1999) (quoting Canipe v. Commonwealth, 25 Va.
App. 629, 644, 491 S.E.2d 747, 754 (1997)).
Code § 18.2-67.2 provides:
An accused shall be guilty of inanimate or
animate object sexual penetration if he or
she penetrates the labia majora or anus of a
complaining witness . . . [and] [t]he act is
accomplished against the will of the
complaining witness, by force, threat or
intimidation of or against the complaining
witness . . . .
(Emphasis added). The Commonwealth bears the burden of proving
each of these elements of the offense beyond a reasonable doubt.
See Holz v. Commonwealth, 220 Va. 876, 880, 263 S.E.2d 426, 428
(1980). The penetration need only be slight. See Jett, 29 Va.
App. at 194, 510 S.E.2d at 749; see also Horton v. Commonwealth,
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255 Va. 606, 612, 499 S.E.2d 258, 261 (1998). "A finger is an
animate object." Bell v. Commonwealth, 22 Va. App. 93, 98, 468
S.E.2d 114, 117 (1996).
In the instant case, Carver testified that appellant and
another inmate held him down. As Carver struggled to get up, he
"felt somebody stick their fingers up my butt." At that instant,
appellant "had his hand up underneath Carver's butt" and appellant
"was sticking [Carver] in the butt with his fingers." Appellant's
penetration was enough to cause Carver pain.
Appellant argues that Carver's testimony is inherently
incredible, or so contrary to human experience as to render it
unworthy of belief. See Willis & Bell v. Commonwealth, 218 Va.
560, 563, 238 S.E.2d 811, 812-13 (1977). However, Campbell also
observed the incident and corroborated Carver's testimony. The
trial court believed the testimony of Carver and Campbell.
III. Attempted Forcible Sodomy
Appellant next contends that the evidence was insufficient
to convict him of attempted forcible sodomy. It is well
established in Virginia that in order to establish an attempted
crime, the Commonwealth must prove "(1) the intent to commit it;
and (2) a direct ineffectual act done towards its commission." 3
3
Code § 18.2-67.1 provides:
An accused shall be guilty of forcible
sodomy if he or she engages in cunnilingus,
fellatio, anallingus, or anal intercourse
with a complaining witness who is not his or
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Goodson v. Commonwealth, 22 Va. App. 61, 74, 467 S.E.2d 848, 855
(1996) (citations omitted). Intent may be established by the
conduct or statements of the accused and may be proven by
circumstantial evidence. Mickens v. Commonwealth, 247 Va. 395,
408, 442 S.E.2d 678, 687 (1994) (citing Barrett v. Commonwealth,
210 Va. 153, 156, 169 S.E.2d 449, 451 (1969)). Although an
overt act is required to prove attempted offenses, it need not
be the last proximate act toward the completion of the
contemplated crime. Id. at 408-09, 169 S.E.2d at 687. However,
the act "must go beyond mere preparation and be done to produce
the intended result." Tharrington v. Commonwealth, 2 Va. App.
491, 494, 346 S.E.2d 337, 339 (1986) (citations omitted).
"Whenever the design of a person to commit a crime is clearly
shown, slight acts done in furtherance of this design will
constitute an attempt." Id. at 495, 346 S.E.2d at 341.
In the instant case, the evidence established the requisite
elements of attempted forcible sodomy. Appellant told Carver
"[y]ou're going to be my bitch," and previously stated that "he
was going to fuck [Carver] up the ass," while rubbing his penis on
her spouse, or causes a complaining witness,
whether or not his or her spouse to engage
in such acts with any other person, and
* * * * * * *
(2) The act is accomplished against the
will of the complaining witness, by force,
threat or intimidation of or against the
complaining witness.
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the victim. These statements sufficiently established appellant's
intent to commit forcible sodomy. Appellant's conduct constituted
the requisite act as he held Carver down against his will,
stripped Carver's pants and combined with appellant's prior
actions and statements were adequate to support the trial court's
determination that appellant committed attempted forcible sodomy.
Accordingly, we hold that the evidence was sufficient to sustain
appellant's convictions of sexual penetration with an animate
object and attempted forcible sodomy and affirm the trial court's
decision.
Affirmed.
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