                  COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Annunziata and Senior Judge Cole
Argued at Richmond, Virginia


KEHINDE A. OGUNGBADE
                                     MEMORANDUM OPINION * BY
v.   Record No. 0991-97-2          JUDGE ROSEMARIE ANNUNZIATA
                                          MAY 26, 1998
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                    William R. Shelton, Judge
          Andrea C. Long (Boone, Beale, Cosby & Long,
          on brief), for appellant.

          Leah A. Darron, Assistant Attorney General
          (Richard Cullen, Attorney General, on brief),
          for appellee.



     The appellant, Kehinde "Kenny" Ogungbade, appeals his

conviction of sexual battery in violation of Code § 18.2-67.4.

Appellant cites as error the trial court's refusal to give his

proffered jury instruction on consent.   He further claims the

evidence was insufficient to support his conviction.    We

disagree, and affirm.

     Appellant was manager of a Crown service station and

convenience store in Chesterfield County, Virginia.    The

complainant was one of his employees, and, at the time of the

incident, was assistant manager.

     On July 4, 1996, complainant worked the second shift,

beginning at 2:00 p.m. and ending at 10:00 p.m.   Before leaving

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
work, complainant was responsible for counting the money received

from sales during her shift.   She accordingly went into the

office located at the back of the store to complete the task.     As

she sat at a desk facing away from the door to count the money,

appellant entered the office and shut the door.   While

complainant was in the office with appellant, a woman knocked on

the office door, and conversed briefly with appellant.

Complainant denied that appellant opened the door to speak with

the woman.
     After the woman knocked on the door, appellant remained in

the office between fifteen and twenty minutes.    Appellant walked

up behind complainant, reached around her, and began fondling her

breasts and trying to open her blouse.    Complainant moved her

arms upward to remove the appellant's hand from her breasts.

Appellant then reached for complainant's crotch and

simultaneously lifted her in her chair to unzip her pants.

Complainant held onto the desk and the top of her pants

struggling to keep them on.    When a button on complainant's pants

popped off during the struggle, the appellant pulled

complainant's pants and underwear down.   He removed his penis

from his pants and began rubbing it against her buttocks.    He

attempted anal and vaginal intercourse several times and

ultimately ejaculated on the office floor.   Appellant wiped the

semen from the floor with his jean jacket which hung on the back

of the office door and left.




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        After appellant left the office, complainant finished

counting the money, put it in the safe and left work.        She met

her roommate and told her what had happened.        Complainant was

trembling and on the verge of tears, so her roommate drove her

home.

        Because complainant was in no condition to place the call

herself, her roommate telephoned the police on her behalf at

12:30 a.m.    Other than evidence that items on the office desk had

been pushed around, there was no appearance of a struggle in the

room where the incident occurred.         Police found evidence of semen

on the office floor as well as on appellant's jacket, and pubic

hairs were recovered from the floor in the location where

complainant had been assaulted.
        Appellant did not testify.    Appellant introduced testimony

from a witness that, during the time appellant and complainant

were in the office, she knocked on the office door and spoke to

appellant.    This witness testified that appellant opened the door

to speak to her, and when appellant answered the door he was

dressed, and that complainant was seated at the desk with stacks

of money in front of her.    According to her testimony,

complainant left the office twenty minutes later and bought

cigarettes and gas before departing from the premises, evidencing

nothing unusual.

                                     I.

                          Consent Instruction




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     Appellant argues that the trial court erred in refusing to

give an instruction on the issue of consent.   At trial, appellant

offered the following instruction:
          Consent by [complainant] is an absolute bar
          to conviction of sexual battery. If after
          consideration of all the evidence you have a
          reasonable doubt as to whether [complainant]
          consented to sexual battery with [appellant],
          then you shall find him not guilty.


In refusing to give the instruction, the court reasoned that the

evidence supported the conclusion that the incident had occurred,

or that it had not, but that there was no evidence that

complainant had consented to a sexual touching.
     At the conference on jury instructions, appellant's counsel

acknowledged that "there is no direct evidence of consent."    In

support of his argument on appeal, appellant contends that there

was evidence that complainant failed to struggle to repel

appellant and that she neither told appellant to stop nor yelled

out for help, even when a third party came to the door.

     Where "consent [is] vital to [the] defense and [is]

supported by sufficient evidence to make it a jury issue," it is

error to refuse to give an instruction on the principle of

consent.   Mery v. Commonwealth, 12 Va. App. 821, 826, 407 S.E.2d

18, 21 (1991).   Conversely, the court does not err by refusing an

instruction where there is no evidence to support it.     Eaton v.

Commonwealth, 240 Va. 236, 255, 397 S.E.2d 385, 396 (1990);
Woodward v. Commonwealth, 12 Va. App. 118, 119, 402 S.E.2d 244,

244 (1991) (citing Bennett v. Commonwealth, 8 Va. App. 228, 234,



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380 S.E.2d 17, 21 (1989)).   "An instruction must be supported by

more than a scintilla of evidence."       Hatcher v. Commonwealth, 218

Va. 811, 814, 241 S.E.2d 756, 758 (1978) (citing Gibson v.

Commonwealth, 216 Va. 412, 417, 219 S.E.2d 845, 849 (1975)).

"[T]he weight of the credible evidence that will amount to more

than a mere scintilla of evidence is a matter to be resolved on a

case-by-case basis."   Brandau v. Commonwealth, 16 Va. App. 408,

412, 430 S.E.2d 563, 565 (1993).       In determining whether evidence

amounts to more than a scintilla, "we must look at the evidence

in the light most favorable to [appellant]."       Foster v.

Commonwealth, 13 Va. App. 380, 383, 412 S.E.2d 198, 200 (1991).

     Code § 18.2-67.7 provides that "the Commonwealth need not

demonstrate that the complaining witness cried out or physically

resisted the accused in order to convict the accused of an

offense" under Code § 18.2-67.4.       See Farish v. Commonwealth, 2

Va. App. 627, 631, 346 S.E.2d 736, 738-39 (1986).      The same

statute, however, makes equally clear that "the absence of such

resistance may be considered when relevant to show that the act

alleged was not against the will of the complaining witness."

Code § 18.2-67.7.   We have interpreted this statute to "allow[]

the defendant to use lack of resistance to buttress his consent

defense."   Farish, 2 Va. App. at 632, 346 S.E.2d at 739.

     Appellant points to his witness' testimony that appellant

opened the door of the office to converse with her, and argues

that complainant's failure to seek help during this time is




                                   5
evidence of complainant's consent.    Appellant's witness, however,

testified that when appellant opened the door to speak to her,

appellant was fully clothed and complainant was seated at the

desk in front of the money.   Viewed in the light most favorable

to appellant, this testimony supports the conclusion that the

assault did not occur, but does not support the conclusion that

complainant consented to sexual touching.

     In addition, "[t]he determination whether the minimum

quantum of credible evidence supports a particular proposition is

largely a factor of determining the weight of that evidence in

comparison to the weight of the other credible evidence that

negates the proposition in question."    Brandau, 16 Va. App. at

411-12, 430 S.E.2d at 565.    Contrary to appellant's argument, all

the evidence presented on the issue indicates that complainant

did not consent.   Complainant testified that she had rebuffed

appellant's advances for at least a year and a half prior to the

night of the offense.   Complainant testified that when appellant

began to fondle her, she moved her arms and elbows to block his

access to her body and move his arms away from her.   She also

explained that when appellant tried to pull her out of her chair

and pull her pants down, she held onto the front of the desk and

held onto her pants to resist appellant's efforts.    Complainant's

pants, introduced at trial, were missing a button, which

complainant testified was lost during the struggle.

     We acknowledge that appellant's witness testified that,



                                  6
after complainant left the office, complainant bought cigarettes,

bought gas, and laughed at a joke made by the witness.    The

relationship of these facts to the issue of consent, however, is

highly attenuated.   Appellant made no attempt to connect these

observations factually with the issue of complainant's consent to

sexual touching, and does not specifically argue that these facts

justify a consent instruction on appeal.    At best, viewed in the

context of all the evidence, this evidence amounts to "'the least

particle'" of evidence of consent.     Brandau, 16 Va. App. at 411,

430 S.E.2d at 565 (quoting Black's Law Dictionary 1345 (6th ed.

1990)) (defining "scintilla").   Simply put, we find that

appellant's evidence of consent did not amount to "more than a

scintilla."   Hatcher, 218 Va. at 814, 241 S.E.2d at 758 (citing

Gibson, 216 Va. at 417, 219 S.E.2d at 849).    We therefore hold

that the trial court properly refused to instruct the jury on the

issue of consent.

                                 II.

                     Sufficiency of the Evidence

     Appellant argues that the evidence is insufficient to

support his conviction on the ground that complainant's failure

to call for help when a woman knocked on the door of the office

and her "normal" appearance after the incident supports the

inference that she acquiesced in the actions of the appellant.

He also argues that "it is incredible" that he, as a store

manager on one of the busiest nights of the year, would risk an



                                  7
outcry from complainant in the event she rejected his advances

and that complainant's actions further support the inference that

he acted "with the perception that [complainant] . . . assented."

     A conviction for rape and other sexual offenses may be

sustained solely upon the uncorroborated testimony of the victim.

 Fisher v. Commonwealth, 228 Va. 296, 299, 321 S.E.2d 202, 203

(1984).   The credibility of witnesses and the weight assigned

their testimony are matters exclusively for the jury.   Lea v.
Commonwealth, 16 Va. App. 300, 304, 429 S.E.2d 477, 479 (1993)

(citing, inter alia, Schneider v. Commonwealth, 230 Va. 379, 383,

337 S.E.2d 735, 736-37 (1985)).   The verdict of a jury will not

be disturbed on appeal unless it is plainly wrong or without

evidence to support it.   Bell v. Commonwealth, 22 Va. App. 93,

96, 468 S.E.2d 114, 116 (1996) (citing, inter alia, Code

§ 8.01-680).

     In contrast to evaluating a theory of defense instruction,

"[w]hen 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."   Carter v. Commonwealth,

25 Va. App. 721, 725, 492 S.E.2d 480, 482 (1997) (citing

Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,

537 (1975)).   If there is evidence to support the verdict, this

Court "should not overrule it and substitute its own judgment,

even if its opinion might differ from that of the jury."   George




                                  8
v. Commonwealth, 242 Va. 264, 278, 411 S.E.2d 12, 20 (1991).

This standard "gives full play to the responsibility of the trier

of fact fairly to resolve conflicts in the testimony, to weigh

the evidence, and to draw reasonable inferences from basic facts

to ultimate facts."   Jackson v. Virginia, 443 U.S. 307, 309

(1979).

     Here, complainant's testimony was plainly sufficient to

support appellant's conviction.   She testified to each of the

elements of appellant's offense, and her testimony was not

inherently incredible.    Complainant's testimony was supported by

statements she made to her roommate and police officers

immediately after the assault.    It was also supported by physical

evidence of semen on appellant's jacket, found in the office, and

a button missing from complainant's pants.   Appellant also

testified that she "froze up" because she was "shocked" and

"terrified."   We hold, therefore, that the evidence supports

appellant's conviction.
                                                          Affirmed.




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