                     COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judge Willis and Senior Judge Hodges
Argued at Alexandria, Virginia

JEROME DARNELL HOLMES

v.       Record No. 1151-94-4                MEMORANDUM OPINION *
                                                 PER CURIAM
COMMONWEALTH OF VIRGINIA                      OCTOBER 24, 1995


               FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                      Robert W. Wooldridge, Judge

            Thomas P. Sotelo (Leiner, Hicks & Sotelo,
            P.C., on briefs), for appellant.
            Katherine P. Baldwin, Assistant Attorney
            General (James S. Gilmore, III, Attorney
            General, on brief), for appellee.



     Jerome Darnell Holmes (appellant) was convicted of rape and

sodomy.    On appeal, appellant attacks the rape conviction and

contends that the trial court erred in refusing to instruct the

jury on the lesser included offense of attempted rape.    We

disagree, and affirm the conviction.

     The victim testified that appellant pushed the victim into

the mud.   The victim fought appellant as he removed her clothing

and tried to rape her.    However, appellant was unable to maintain

an erection.    The victim then stated that appellant "was able to

penetrate. . . . Into [her] vagina."    She testified appellant

"was holding the base of his penis, in order to penetrate [her]."

 She further testified, "I could feel his hand -- I could feel

his fist hitting me.    Because his penis was in his hand.   He was

holding it."    On cross-examination, the victim said she did not

see appellant's penis penetrate her vagina.
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
     Later, at the hospital, the victim was examined by a sexual

assault nurse examiner.   The nurse testified that the victim's

vagina contained "grass and dirt and pieces of rock and other

pieces of debris . . . ."   The nurse further testified, "It is my

belief that there was penetration."   On cross-examination, the

nurse testified that, based on the physical evidence, the

penetration could have been accomplished by digital penetration.

 The nurse also stated that the victim "was sure of penile

penetration."
     The forensic serologist testified that sperm was found on

"the side external genitalia, vaginal, cervical, perianal

buttocks and anal rectal smears . . ." taken from the victim.

     Appellant presented no evidence and offered Jury Instruction

A, which addressed rape, attempted rape and sexual battery.     The

trial court refused to grant the instruction.   Appellant argues

on appeal that the trial court erred in refusing to instruct the

jury on the lesser included offense of attempted rape. 1

     "A reviewing court's responsibility in reviewing jury

instructions is 'to see that the law has been clearly stated and

that the instructions cover all issues which the evidence fairly

raises.'"   Darnell v. Commonwealth, 6 Va. App. 485, 488, 370

S.E.2d 717, 719 (1988) (citation omitted).   "If there is any

evidence that would support a conviction for the lesser included

     1
        The Commonwealth asserts that appellant never argued to
the trial court that the trial court should have given a
rape/attempted rape instruction, and that his argument on appeal
is barred by Rule 5A:18. However, the record indicates that the
trial court separately considered the attempted rape and sexual
battery arguments. Thus, the purpose of Rule 5A:18 was
fulfilled.



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offense, the trial court must, upon request of counsel, instruct

the jury as to the lesser included offense.    An instruction,

however, must be based on more than a scintilla of evidence."

Miller v. Commonwealth, 5 Va. App. 22, 24, 359 S.E.2d 841, 842

(1987) (citations omitted).   "Attempted rape includes the intent

to engage in sexual intercourse, and some direct, yet

ineffectual, act toward its consummation."     Fortune v.

Commonwealth, 14 Va. App. 225, 228, 416 S.E.2d 25, 27 (1992).

     The evidence supported a jury instruction on rape only.      The

victim testified that appellant's penis penetrated her vagina.

The victim testified that she did not actually observe

appellant's penis penetrate her vagina.    The nurse testified

that, based on the physical evidence, the penetration could have

been accomplished by digital penetration.    Further, the forensic

serologist testified that sperm was found on the vaginal and

cervical smears taken from the victim.    None of this evidence

reasonably suggested penetration of the victim's vagina by an

object other than appellant's penis.     See Tuggle v. Commonwealth,

228 Va. 493, 511-12, 323 S.E.2d 539, 550 (1984), vacated on other
grounds, 471 U.S. 1096, aff'd, 230 Va. 99, 334 S.E.2d 838 (1985).

       The Commonwealth's evidence did not support the theory of

an ineffectual effort to penetrate.    Appellant presented no

evidence.   Accordingly, the trial judge did not err in refusing

to give the instruction on attempted rape.

     For the foregoing reasons, the judgment of the trial court

is affirmed.

                                                     Affirmed.




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