Torrence Lamont Smith v. Commonwealth of Virginia ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Bumgardner and Humphreys
Argued at Salem, Virginia
TORRENCE LAMONT SMITH
MEMORANDUM OPINION * BY
v. Record No. 2319-00-3 JUDGE RUDOLPH BUMGARDNER, III
NOVEMBER 20, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
James F. Ingram, Judge
S. Jane Chittom, Appellate Defender (Public
Defender Commission, on briefs), for
appellant.
Stephen R. McCullough, Assistant Attorney
General (Randolph A. Beales, Attorney
General, on brief), for appellee.
The trial court convicted Torrence Lamont Smith of robbery
and attempted forcible sodomy. He maintains the evidence was
insufficient to convict him of attempted forcible sodomy. We
conclude the evidence proved the attempt and affirm the
conviction.
Late at night, the defendant approached the victim as she
climbed the stairs to her apartment. 1 The victim recognized the
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
"On appeal, 'we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom.'" Archer v.
Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)
(citation omitted).
defendant but did not know him by name. He asked to use her
bathroom, and she let the defendant into her apartment. Once
inside the apartment, the defendant went to a window and started
clicking an object in his pocket. The victim thought the
clicking noise was a gun. The defendant stated, "I hate to say
it but if you don't do what I say do, I'm gon' fuck you up." He
then said, "Suck my dick."
The victim fled downstairs, and the defendant pursued. He
caught her at the bottom of the stairs and started choking her
when she screamed for help. The defendant thrust his hand in
the victim's throat to stop the screaming, so she started
kicking her neighbor's door. Eventually, the defendant twisted
a necklace from the victim's neck and ran off.
The defendant concedes the evidence proves he intended to
commit forcible sodomy. He contends, however, that the evidence
does not prove that he committed any act in furtherance of the
sexual act. He maintains to prove an attempt of a sex crime the
evidence must show an act of a sexual nature.
"'An attempt is composed of two elements: the intention to
commit the crime, and the doing of some direct act towards its
consummation which is more than mere preparation but falls short
of execution of the ultimate purpose.'" Hopson v. Commonwealth,
15 Va. App. 749, 752, 427 S.E.2d 221, 223 (1993) (quoting
Sizemore v. Commonwealth, 218 Va. 980, 983, 243 S.E.2d 212, 213
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(1978)). Although the Commonwealth must prove an overt act in
order to establish an attempt, "if 'the design of a person to
commit a crime is clearly shown, slight acts done in furtherance
of this design will constitute an attempt.'" Tharrington v.
Commonwealth, 2 Va. App. 492, 494, 346 S.E.2d 337, 339 (1986)
(quoting State v. Bell, 316 S.E.2d 611, 616 (N.C. 1984)).
In this case, the defendant entered the victim's apartment
by trickery and threatened to hurt her if she did not do as he
commanded. He stated his intentions explicitly. When his
victim ran, he caught her, and attacked violently. Only the
victim's indomitable resistance prevented the defendant from
subduing her.
Forcible sodomy is a crime of violence that an accused must
accomplish by force and against the will of the victim. In this
case, the defendant announced his intention to commit sodomy by
force. When the victim resisted, he proceeded to apply force to
subdue her to his will just as he stated he would. Those acts
were direct acts toward consummation of the crime, not mere
preparation. The evidence proved "direct ineffectual acts
toward the commission of the offense . . . ." Martin v.
Commonwealth, 195 Va. 1107, 1112, 81 S.E.2d 574, 577 (1954).
"Neither the ineffectuality of [the defendant's] acts nor the
prevention of performance . . . was of a kind to rid his acts of
their criminal character." Id. (citation omitted).
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The evidence was sufficient to prove beyond a reasonable
doubt that the defendant committed attempted forcible sodomy.
Accordingly, we affirm.
Affirmed.
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