                                COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Kelsey and Haley
Argued at Chesapeake, Virginia


QUINCY JONES WALKER, S/K/A
 QUINCY JAMES WALKER
                                                                MEMORANDUM OPINION* BY
v.      Record No. 1456-04-1                                     JUDGE ROBERT P. FRANK
                                                                    OCTOBER 25, 2005
COMMONWEALTH OF VIRGINIA


                  FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
                               Frederick H. Creekmore, Judge

                  Nathan A. Chapman (William B. Parkhurst; Law Office of
                  William B. Parkhurst, P.C., on brief), for appellant.

                  John H. McLees, Senior Assistant Attorney General (Judith Williams
                  Jagdmann, Attorney General; Paul C. Galanides, Assistant Attorney
                  General, on brief), for appellee.


        Quincy J. Walker, appellant, was convicted, in a bench trial, of marital rape, in violation of

Code § 18.2-61(B), and attempted marital sexual assault in violation of Code § 18.2-67.2:1. On

appeal, he contends the trial court erred in (1) finding the evidence sufficient to show that appellant

and his wife lived separate and apart as required for a conviction for marital rape, (2) finding that

appellant and his wife lived together as required for a conviction of marital sexual assault, and

(3) finding that his wife revoked her implied consent to have marital intercourse. For the reasons

stated, we affirm.




        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                         BACKGROUND

       It is well settled that “[o]n appeal, we review the evidence in the light most favorable to

the party prevailing below, together with all reasonable inferences that may be drawn.” Benton

v. Commonwealth, 40 Va. App. 136, 139, 578 S.E.2d 74, 75 (2003).

       So viewed, the evidence establishes that the Walkers were married in 1995 and have five

children. At some point during the marriage, Mrs. Walker, a Lieutenant Junior Grade in the

United States Navy, moved to Rhode Island to attend school. While in Rhode Island, appellant

would occasionally visit Mrs. Walker and their children. Upon returning to Virginia in 2001,

Mrs. Walker initially lived on base, and then moved into an apartment in Chesapeake with just

her children. She testified at trial that appellant was living in Virginia Beach and that she and

appellant were “separated” at that time. Mrs. Walker testified that she assumed sole

responsibility for rent, utility bills, and food. Appellant did not have a key to her apartment.

Although appellant would occasionally go to church with Mrs. Walker, and they would exchange

Mother’s and Father’s Day gifts with each other, Mrs. Walker allowed these activities solely for

the sake of their children.

       Appellant opposed the separation and repeatedly attempted to reconcile with Mrs.

Walker. Mrs. Walker testified that “every time he came over” he would try to repair the

marriage. During October and November of 2001, they engaged in sexual relations on an

occasional basis. Mrs. Walker lost twins in December 2001 and became very distraught.

Although the couple continued to engage in sexual activity between January 2002 and March

2002, Mrs. Walker testified that it was always without her consent. She allowed appellant to

stay overnight from time to time because of the children. During this time period, the Walkers

discussed having another child, and Mrs. Walker became pregnant again after forced intercourse.




                                                -2-
In the spring of 2002 she informed appellant that she did not want him sleeping at her home

anymore.

       Mrs. Walker testified that in the early morning of June 15, 2002, appellant woke her by

ringing the doorbell at her apartment in Chesapeake. She had been asleep on the couch and

answered the door wearing her pajamas. Appellant had just left work and stated that he had

come by to see the children. He and Mrs. Walker sat on the couch and he immediately began

trying to kiss her, telling her he wanted a reconciliation. She told him to stop, yet he continued

to kiss her. He then grabbed her and “held [her] arms down and forced [her] to have sex.” She

testified that despite her telling him to “stop” and to “get off of me,” appellant pulled down her

pants, held down her arms, and forced her to have intercourse. He left the apartment later in the

morning after feeding the children breakfast. Mrs. Walker did not notify the police.

       Mrs. Walker testified that on June 26, 2002, appellant stopped by her apartment asking to

borrow the lawn mower. Her children were eating dinner, and Mrs. Walker was ironing a skirt in

preparation for church. She was wearing a top and a robe. She told appellant he could not

borrow the mower, so he went inside to talk with the children. After she went into the bathroom

to finish ironing, appellant came in, pushed her back into the bedroom, then back into the

bathroom. He tried to close the door while taking down his pants. Mrs. Walker told him to

“Stop. Stop.” He pinned Mrs. Walker against the wall, pulled her panties down to her thighs,

and put his penis on her vagina. Mrs. Walker yelled again for him to stop. The children ran to

the bathroom in response, and appellant stopped. Mrs. Walker reported both incidents to the

police the following day.




                                                -3-
                                             ANALYSIS

                                          MARITAL RAPE

       Appellant first contends the evidence is insufficient to support his rape conviction

because “the Walkers did not live separate and apart as required by statute.”1 He argues that

Code § 18.2-61(B) requires “some ongoing, express, protracted, unequivocal demonstration or

behavior which would clearly indicate to the other spouse that this one spouse, does not want to

be involved with the other.” The Commonwealth responds that appellant misinterprets the

meaning of the language “separate and apart.”

       We agree with appellant that in order to convict an accused of marital rape pursuant to

Code § 18.2-61(B), the Commonwealth must show that at the time of the offense the couple was

living “separate and apart.” However, we disagree with appellant’s application of the law in this

case. Here, the evidence sufficiently proved that appellant was living separate and apart from his

wife and we affirm the conviction.

       Appellant cites Weishaupt v. Commonwealth, 227 Va. 389, 315 S.E.2d 847 (1984), in

support of his argument. Weishaupt holds that a wife can unilaterally revoke her implied consent

to marital sex where she has (1) made manifest her intent to terminate the marital relationship by

living separate and apart from her husband; (2) refrained from voluntary sexual intercourse with

her husband; and (3) in light of all the circumstances, conducted herself in a manner that


       1
           Code § 18.2-61(B) in effect at the time provided:

                 If any person has sexual intercourse with his or her spouse and
                 such act is accomplished against the spouse’s will by force, threat
                 or intimidation of or against the spouse or another, he or she shall
                 be guilty of rape.

                 However, no person shall be found guilty under this subsection
                 unless, at the time of the alleged offense, (i) the spouses were
                 living separate and apart, or (ii) the defendant caused bodily injury
                 to the spouse by the use of force or violence.
                                                   -4-
establishes a de facto end to the marriage. Id. at 405, 315 S.E.2d at 855; see also Kizer v.

Commonwealth, 228 Va. 256, 261-62, 321 S.E.2d 291, 294 (1984) (“[W]e cannot say that

[wife’s] subjective intent was manifested objectively to the husband, in view of the wife’s

vacillating conduct, so that he perceived, or reasonably should have perceived, that the marriage

actually was ended.”).

       In Kizer, the Supreme Court reversed appellant’s rape conviction. The evidence there

showed that while the couple physically lived in separate places, the wife was considering a

reconciliation that prevented a finding that she had expressed her subjective intent to end the

marriage. Accordingly, the Supreme Court reversed the conviction because the wife had not

“conducted herself in a manner that established an actual end to the marriage.” Kizer, 228 Va. at

261, 321 S.E.2d at 294.

       Appellant’s reliance on Weishaupt and Kizer is misplaced. Subsequent to the Supreme

Court’s decisions in those cases, the General Assembly amended Code § 18.2-61(B) in 1986 to

create marital rape as a separate offense. The statute provides only that the intercourse be

against the spouse’s will while living “separate and apart.” The statute does not define “separate

and apart,” nor does it require proof of the spouse’s subjective intent to end the marital

relationship. The statute merely criminalizes unwanted intercourse between spouses who are not

living together. Because the Weishaupt and Kizer element of intent is omitted from the statute,

we need not determine whether Mrs. Walker’s behavior led appellant to believe that the marital

relationship was ongoing. Instead, we only decide whether the evidence supports a finding that

appellant and Mrs. Walker lived “separate and apart” as contemplated by the statute.

       When considering the sufficiency of the evidence on appeal, we view the evidence in the

light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible

therefrom. See Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).

                                                -5-
“In so doing we must ‘discard the evidence of the accused in conflict with that of the

Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all

fair inferences that may be drawn therefrom.’” Norman v. Commonwealth, 2 Va. App. 518, 520,

346 S.E.2d 44, 45 (1986) (quoting Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759

(1980)). The trial court’s judgment will not be set aside unless plainly wrong or without evidence to

support it. Josephs v. Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) (en banc).

Additionally:

                The credibility of a witness and the inferences to be drawn from
                proven facts are matters solely for the fact finder’s determination.
                In its role of judging witness credibility, the fact finder is entitled
                to disbelieve the self-serving testimony of the accused and to
                conclude that the accused is lying to conceal his guilt.

Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998) (citation

omitted).

       So viewed, the evidence here clearly establishes that appellant and his wife lived separate

and apart. Appellant had a home in Virginia Beach, and Mrs. Walker lived in Chesapeake.

Appellant did not have a key to her apartment, nor did he contribute financially to her household.

She did not pay any of the bills at his house. She testified they were “separated.” Moreover,

appellant’s counsel conceded in argument before the trial court that “the clear, uncontroverted

testimony of Ms. [] Walker is that they were not living together. They were living separate and

apart.”2




       2
        While stipulating that the parties lived “separate and apart,” counsel argued only that
the Weishaupt holding prevents a finding of guilt for marital rape because Mrs. Walker did not
conduct herself in a manner that established an actual end to the marriage. As previously
discussed, Mrs. Walker’s intent is irrelevant to a discussion of marital rape and Code
§ 18.2-61(B).

                                                  -6-
        However, appellant argues that the facts here do not meet the “one-year period of

separation” as required to obtain a divorce in the Commonwealth of Virginia.3 We note that the

requirements for divorce include living “separate and apart without cohabitation,” (emphasis

added), whereas Code § 18.2-61(B) requires only that the spouses live “separate and apart.”

        “‘Where the legislature has used words of a plain and definite import the courts cannot

put upon them a construction which amounts to holding the legislature did not mean what it has

actually expressed.’” Barr v. Town & Country Props., 240 Va. 292, 295, 396 S.E.2d 672, 674

(1990) (quoting Watkins v. Hall, 161 Va. 924, 930, 172 S.E. 445, 447 (1934)).

        We find no merit to appellant’s argument. The language of Code § 18.2-61(B) is clear

that the legislature did not intend for “separate and apart” to include the requirement that the

parties refrain from any cohabitation, or that the period of separation be without interruption.

Had the legislature intended such an interpretation, it would have included such language in the

marital rape statute.

        We therefore affirm this conviction.4




        3
       Code § 20-91(A) provides the following grounds for divorce from the bond of
matrimony:

                  (9) (a) On the application of either party if and when the husband
                  and wife have lived separate and apart without any cohabitation
                  and without interruption for one year. In any case where the
                  parties have entered into a separation agreement and there are no
                  minor children either born of the parties, born of either party and
                  adopted by the other or adopted by both parties, a divorce may be
                  decreed on application if and when the husband and wife have
                  lived separately and apart without cohabitation and without
                  interruption for six months.
        4
            We note that appellant does not challenge that he had intercourse with his wife against
her will.
                                                  -7-
                                MARITAL SEXUAL ASSAULT

       Appellant next challenges the trial court’s ruling that a conviction for marital sexual

assault does not require a showing that the parties are living together. Citing Morse v.

Commonwealth, 17 Va. App. 627, 440 S.E.2d 145 (1994), appellant argues that because he and

his wife were separated, he cannot be convicted of marital sexual assault.

       At the time of the offense in 2002, Code § 18.2-67.2:1 stated:

               A. An accused shall be guilty of marital sexual assault if (i) he or
               she engages in sexual intercourse . . . with his or her spouse . . .
               and (ii) such act is accomplished against the spouse’s will by force
               or a present threat of force or intimidation of or against the spouse
               or another person.

       In Morse, the evidence was uncontested that the couple lived together as husband and

wife. Morse, 17 Va. App. at 633, 440 S.E.2d at 149. Mrs. Morse testified that she initially

refused her husband’s demand for intercourse. This Court found that the evidence was sufficient

to prove that Mrs. Morse ultimately submitted to her husband’s demand after he made a “present

threat of force.” Id. at 635, 440 S.E.2d at 150. However, the statute at that time did not

criminalize intercourse by “intimidation” and the issue in Morse was whether the defendant was

entitled to a jury instruction that distinguished “intimidation” from “threat of force.” The Court,

in agreeing with Morse, wrote, “we conclude that the legislature intended to limit the

applicability of Code § 18.2-67.2:1 to those instances in which sexual intercourse between

spouses living together is accomplished against one spouse’s will by force or threat of force and

does not include such acts accomplished by intimidation (or consent).” Id. at 633-34, 440 S.E.2d

at 149 (emphasis added).

       The focus of Morse was whether the statute prohibited intercourse by “intimidation.”

Simply because the particular facts of Morse included spouses who were sharing one residence,




                                               -8-
the Court’s discussion of the intimidation issue included the excess language of “living

together.” However, the holding in Morse would remain intact even if the parties’ living

arrangements were to change. A review of the intimidation issue does not fail if the “living

together” language is omitted from the analysis. Put differently, whether the parties are living

together or apart is irrelevant to the holding of Morse. Thus, appellant’s argument that Morse

introduces an additional element of proof to Code § 18.2-67.2:1 is without merit.

        In addition, the plain language of Code § 18.2-67.2:1 does not include the language as to

the living arrangements of the victim and the accused. In comparison, Code § 18.2-61(B) does

require that the parties live “separate and apart.” If the legislature intended to criminalize the

behavior outlined in Code § 18.2-67.2:1 only between spouses who share the same marital home,

it would have used the phrase “living together” in the statute, just as it used “living separate and

apart” in the marital rape statute.

        The Virginia Supreme Court has long held that “[w]hen analyzing a statute, we must

assume that ‘the legislature chose, with care, the words it used . . . and we are bound by those

words as we interpret the statute.’” City of Va. Beach v. ESG Enters., Inc., 243 Va. 149, 153,

413 S.E.2d 642, 644 (1992) (quoting Barr, 240 Va. at 295, 396 S.E.2d at 674). “[I]t is the duty

of the courts to give effect, if possible, to every word of the written law.” Moyer v.

Commonwealth, 33 Va. App. 8, 35, 531 S.E.2d 580, 593 (2000) (en banc).

        To ensure that the term “living separate and apart” has any meaning in the marital rape

statute, we must assume that its omission from the marital sexual assault statute is intentional.

Thus, the inclusive language “living separate and apart” in the marital rape statute, but its

omission from the marital sexual assault statute, compels us to hold that “living together” is not

an element of Code § 18.2-67.2:1 as it existed in 2002. We find that the Commonwealth was not




                                                 -9-
required to prove that the Walkers were living together at the time the attempted marital sexual

assault occurred. We therefore affirm that conviction.

                            WITHDRAWAL OF IMPLIED CONSENT

       Finally, appellant contends that his convictions cannot be sustained because Mrs. Walker

did not unequivocally express her intentions to terminate the marriage. As previously stated, the

General Assembly rejected this concept when it enacted Code § 18.2-61(B) in 1986 and refused

to require proof of a spouse’s express intent to end the relationship in order to sustain convictions

for marital rape and marital sexual assault. We find that the Commonwealth was not required to

show that Mrs. Walker communicated to appellant an express and unequivocal desire to

terminate her marriage.

                                          CONCLUSION

       For the foregoing reasons, the trial court did not err in finding the evidence sufficient to

sustain convictions for marital rape and attempted marital sexual assault. Accordingly, the

convictions are affirmed.

                                                                                     Affirmed.




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