                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Annunziata and Overton
Argued at Richmond, Virginia


KEITH LORENZO JONES
                                           MEMORANDUM OPINION * BY
v.         Record No. 0033-96-2          JUDGE ROSEMARIE ANNUNZIATA
                                             FEBRUARY 25, 1997
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY
                Charles L. McCormick, III, Judge
          Theodore Tondrowski (Bowen & Bowen, on
          brief), for appellant.

          Margaret Ann B. Walker, Assistant Attorney
          General (James S. Gilmore, III, Attorney
          General, on brief), for appellee.



     Following a bench trial, appellant, Keith Lorenzo Jones, was

convicted of assault and battery and attempted forcible sodomy.

On appeal he contests the sufficiency of the evidence to support

each conviction.   For the reasons that follow, we affirm.

     When considering the sufficiency of the evidence on appeal

in a criminal case, this Court views the evidence in a light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.    Higginbotham v.

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).    "The

weight which should be given to evidence and whether the

testimony of a witness is credible are questions which the fact

finder must decide."   Bridgeman v. Commonwealth, 3 Va. App. 523,

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
528, 351 S.E.2d 598, 601 (1986).    On review, this Court does not

substitute its own judgment for that of the trier of fact.         Cable

v. Commonwealth, 243 Va. 236, 239, 415 S.E.2d 218, 220 (1992).

Instead, the trial court's judgment will not be set aside unless

it appears that the judgment is plainly wrong or without

supporting evidence.   Code § 8.01-680; Josephs v. Commonwealth,

10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) (en banc).

     The victim, H., who was fifteen years old at the time of the

alleged incident, testified that she and a friend, S.,

accompanied appellant and another man, Herbert, to a motel room.

Although H. had met appellant only that night, the two kissed in

Herbert's truck as the group drove to the motel.     Inside the

room, S. and Herbert began kissing.      H. exited the room,

intending to leave the two alone.    Appellant followed.   H.

entered Herbert's truck; appellant climbed in behind her.       The

two talked, and appellant tried to kiss H.     H. "pulled away and

. . . said no.   I can't do this anymore.    I'm sorry.   I just

can't.   I've got a boyfriend.   I shouldn't have done it in the

first place."    Appellant proceeded and attempted to pull down

H.'s pants.   H. pulled her pants up, telling appellant, "[N]o.

I'm not going to do anything."    Appellant persisted and pulled

H.'s pants down to her knees, still trying to kiss her despite

H.'s continued protestations.    Appellant pried H.'s legs apart,

put his head between them and touched his tongue to her vagina.

H. continued to resist, but appellant managed to position himself



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on top of her.    At that point, H. was crying, repeatedly telling

appellant "no."    Appellant inserted his penis in H.'s vagina.

Appellant removed himself from H. when S. and Herbert approached.

Both S. and Herbert testified that H. was crying when they

reached the truck.    S. further testified that H. told her she and

appellant had sex but that she had said "no."      Appellant admitted

having sexual intercourse with H. but testified that she

consented.    He asserted that H. cried because she felt guilty,

thinking of her boyfriend.
        At the close of the evidence the court stated,
             I think at the very least, at the very least,
             this defendant is guilty of aggrivated [sic]
             sexual battery on this girl. I think it at
             the very least. I think that's giving him
             the benefit of the doubt that I can give him.
              And I think also he's guilty of the
             attempted act of sodomy on her. So I'm going
             to find that this defendant is guilty of
             those two offenses.


        Appellant filed a motion to reconsider, arguing in part that

aggravated sexual battery is not a lesser included offense of

rape.    The court agreed and reduced the conviction to misdemeanor

assault and battery.    The attempted forcible sodomy conviction

stood.    Appellant raised no further objection.

        Generally speaking, assault and battery is a non-consensual,

unlawful touching.     See Johnson v. Commonwealth, 5 Va. App. 529,

534-35, 365 S.E.2d 237, 240 (1988); Banovitch v. Commonwealth,

196 Va. 210, 219, 83 S.E.2d 369, 374-75 (1954); II Virginia Model
Jury Instructions, Criminal 38.300 ("An assault and battery is




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any bodily hurt, however slight, done to another in an angry,

rude or vengeful manner.").   Forcible sodomy is, inter alia, the

act of cunnilingus accomplished against the will of the

complaining witness and by force, threat or intimidation.    Code

§ 18.2-67.1.   An attempt is an "unfinished crime, composed of

. . . the intent to commit the crime and the doing of some direct

act toward its consummation, but falling short of the

accomplishment of the ultimate design.    See Johnson v.
Commonwealth, 209 Va. 291, 293, 163 S.E.2d 570, 573 (1968).

     Appellant contends that, in refusing to convict him of rape,

the trial court resolved the issue of consent in his favor,

because the fact of intercourse was not in doubt (i.e., consent

was the only element of the crime in dispute).   It follows,

appellant argues, that if the court found H. consented to

intercourse, it had no basis to convict him of assault and

battery.   By extension, he also argues that if H. consented to

intercourse, it is implausible that she did not also consent to

the alleged act of sodomy.

     Appellant made no objection to the trial court's reduction

of his conviction to misdemeanor assault and battery on any

grounds, much less on the ground he apparently argues here; viz.,
that the trial court would have convicted him of rape had it

found no consent.   Accordingly, that argument is procedurally

barred on appeal.   Rule 5A:18.

     We find no basis for applying the ends of justice exception,




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because we find that the record reflects sufficient evidence to

support appellant's convictions for assault and battery and

attempted forcible sodomy beyond a reasonable doubt.   The trial

court's finding that the evidence was sufficient to support a

conviction for aggravated sexual battery resolves the issue of

consent.   See Code § 18.2-67.3 ("An accused shall be guilty of

aggravated sexual battery if he . . . sexually abuses the

complaining witness . . . against [her] will."). 1
     Accordingly, we hold that the evidence was sufficient to

prove beyond a reasonable doubt the elements of each offense, and

we affirm appellant's convictions.

                                                         Affirmed.




     1
      Finally, contrary to appellant's assertion, the court's
resolution of the issue of consent with respect to the
intercourse does not necessarily bear on its resolution of the
issue of consent with respect to the sodomy. Even had the court
found H. consented to intercourse, such a finding would not
preclude the finding that she did not consent to the attempted
sodomy.




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