                  COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Frank and Clements
Argued at Richmond, Virginia


HAL KENNEDY LEE
                                          MEMORANDUM OPINION * BY
v.   Record No. 2191-00-2              JUDGE JEAN HARRISON CLEMENTS
                                             OCTOBER 2, 2001
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                    James B. Wilkinson, Judge

          Carolyn V. Grady (Epperly, Follis & Schork,
          P.C.; Carolyn V. Grady, P.C., on briefs), for
          appellant.

          Donald E. Jeffrey, III, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     Appellant Hal Kennedy Lee was convicted in a jury trial of

rape in violation of Code § 18.2-61 and forcible sodomy in

violation of Code § 18.2-67.1.   On appeal, he contends (1) the

evidence was not sufficient to sustain the convictions and (2) the

trial court erred by admitting into evidence Lee's hearsay

statements and by allowing prosecutorial misconduct.   For the

reasons that follow, we affirm the convictions.

     As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

value, this opinion recites only those facts and incidents of the


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
proceedings as necessary to the parties' understanding of the

disposition of this appeal.

                                   I.

     Lee contends the evidence presented by the Commonwealth was

insufficient to sustain his convictions because the victim's

testimony was inconsistent, uncorroborated, and incredible. 1

     When the sufficiency of the evidence is challenged on appeal,

we review the evidence "in the light most favorable to the

Commonwealth, granting to it all reasonable inferences fairly

deducible therefrom."   Bright v. Commonwealth, 4 Va. App. 248,

250, 356 S.E.2d 443, 444 (1987).    "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."   Watkins v. Commonwealth, 26 Va. App. 335, 349,

494 S.E.2d 859, 866 (1998).   We are further mindful that the

"credibility of a witness, the weight accorded the testimony, and

the inferences to be drawn from proven facts are matters solely


     1
       Lee also asserts on appeal that the evidence was not
sufficient to sustain his convictions because (1) there was no
forensic evidence and (2) the evidence, being circumstantial,
did not exclude every reasonable hypothesis of his innocence.
However, these arguments were never presented to the trial
court. Thus, they were not properly preserved, and Rule 5A:18
bars our consideration of them on appeal. Furthermore, we find
no reason in the record to invoke the "good cause" or "ends of
justice" exceptions. Lee also argues on appeal that his
attorney failed to introduce DNA evidence vital to his defense.
We denied Lee's petition for appeal on this question and will
not consider it here.

                               - 2 -
for the fact[ ]finder's determination."   Keyes v. City of Virginia

Beach, 16 Va. App. 198, 199, 428 S.E.2d 766, 767 (1993).   We will

not disturb a conviction unless it is plainly wrong or unsupported

by the evidence.    Sutphin v. Commonwealth, 1 Va. App. 241, 243,

337 S.E.2d 897, 898 (1985).

     The Commonwealth preliminarily contends Lee's argument is

procedurally barred on appeal because it was not presented

explicitly enough at trial to apprise the trial court of the

argument he now makes on appeal.   We disagree with the

Commonwealth.    On a motion to strike, Lee's counsel argued to the

trial court that, "under all the evidence the Court has heard, the

credibility of some of the witnesses, [and] inconsistencies on the

part of the Commonwealth's evidence the evidence was insufficient

to convict Lee of rape and forcible sodomy."   Despite its lack of

precision, we conclude that counsel's argument on Lee's behalf

gave the trial court and the Commonwealth the opportunity to

intelligently address, examine, and resolve this issue in the

trial court.    The issue is, therefore, properly before us on

appeal.

     "The Commonwealth bears the burden of 'proving beyond a

reasonable doubt each and every constituent element of a crime

before an accused may stand convicted of that particular

offense.'"   Bruce v. Commonwealth, 22 Va. App. 264, 268, 469

S.E.2d 64, 67 (1996) (quoting Martin v. Commonwealth, 13 Va. App.

524, 529, 414 S.E.2d 401, 403 (1992) (en banc)), aff'd, 256 Va.

                                - 3 -
371, 506 S.E.2d 318 (1998).   To convict Lee of rape under Code

§ 18.2-61, the Commonwealth had to prove beyond a reasonable doubt

that Lee had sexual intercourse with A.K.N. against her will, by

force.   To convict Lee of forcible sodomy under Code § 18.2-67.1,

the Commonwealth had to prove beyond a reasonable doubt that Lee

put his tongue in A.K.N.'s vagina against her will, by force.

     A.K.N. lived with her mother.     Lee, the mother's paramour,

had a key to the house and visited often.    A.K.N. testified that,

on the day in question, she was walking from her room toward the

living room when Lee grabbed her by the arm, pulled her into the

kitchen, and told her "to let him eat [her] pussy."    When A.K.N.

said "no," Lee dragged her into her bedroom and pulled her jeans

down to her waist, "a little past [her] backside."    A.K.N. was

able to get her pants up and told Lee to "stop."    Lee then dragged

A.K.N. into her mother's room, where he again attempted to pull

down her jeans.   Again, A.K.N. told Lee to "stop."   A.K.N. told

Lee she did not want to have sex with him.    Lee then dragged

A.K.N. into the kitchen, pushed her against a cabinet, pulled her

jeans down to her ankles, and threw her on the floor.

     A.K.N. testified that Lee "put his mouth on [her] vagina and

started licking it."   She felt his tongue "go inside of [her]

vagina."   When she resisted, he bit her "on [her] vagina."

Finally, Lee put her legs "over his shoulders" and "put his penis

in [her] vagina."   A.K.N. testified she felt his penis "inside"

her for about two minutes while he "move[d] his penis around

                               - 4 -
[inside her] vagina."   After the incident, A.K.N. went to a

neighbor's home and called the police.

      Ginger Allen, a nurse who examined A.K.N. later that day,

testified that A.K.N. had injuries in the area between the vagina

and the anus, lacerations inside the vagina, and bruising around

the cervix and the wall of the vagina.   A.K.N.'s mother testified

that Lee admitted to her in a telephone call after the preliminary

hearing that he had engaged in consensual sex with A.K.N.

      A.K.N.'s testimony established Lee's oral and penile

penetration of her vagina.    The evidence was neither inherently

incredible nor so contrary to human experience as to render it

unworthy of belief as a matter of law.   See Simpson v.

Commonwealth, 199 Va. 549, 558, 100 S.E.2d 701, 707 (1957).    The

jury, as fact finder, believed A.K.N.'s testimony.   Convictions

for sexual offenses may be sustained based upon the victim's

testimony alone.   Garland v. Commonwealth, 8 Va. App. 189, 191,

379 S.E.2d 146, 147 (1989).    Here, however, the Commonwealth also

presented corroborating medical evidence that A.K.N. had suffered

recent injuries to her vagina.    Furthermore, Lee confessed to

A.K.N.'s mother his act of sexual intercourse with A.K.N.

      Based on our review of the record, we cannot say the jury's

verdict was plainly wrong or without credible evidence to support

it.   We hold that the evidence presented was sufficient for the

jury to conclude beyond a reasonable doubt that Lee committed rape

and forcible sodomy upon A.K.N.

                                 - 5 -
                                  II.

     Lee contends the trial court erred by allowing Detective

Toney to testify about statements made to him by Lee.   Those

statements, Lee argues, were hearsay and should not have been

admitted into evidence.   However, Lee failed to object to this

testimony in the trial court.   Lee also asserts the trial court

erred in admitting testimony from A.K.N.'s mother that Lee told

her he had engaged in consensual sex with A.K.N.   However, Lee's

objection to that testimony in the trial court was based on

relevance, not the hearsay claim he now raises on appeal.

     Lee further argues the prosecutor improperly interjected

personal opinion and emotional appeal in her closing argument

during the guilt phase of the trial when she told the jury:

"Decent men don't do things that Hal Lee did.   Rapists do."

Although Lee did not object to the argument at trial, he now

asserts the trial court had an affirmative duty to act to ensure

him a fair and impartial trial.    He was, he concludes, prejudiced

by the trial court's failure to take corrective action.

     Finally, Lee contends he was also prejudiced in the

sentencing phase of the trial when the Commonwealth asked Lee's

wife if she was aware that Lee had been investigated for

committing an unrelated sexual offense against his child.

Although Lee did not immediately object to the question, the trial

judge interrupted the answer, indicating that the evidence of the

alleged investigation was not relevant.   At Lee's request, the

                                - 6 -
trial judge gave the jury a cautionary instruction to disregard

the testimony concerning the alleged investigation.

     The Commonwealth contends that Lee's claims are barred under

Rule 5A:18 because he failed to properly preserve these issues at

the trial level for appeal.

     Rule 5A:18 provides, in pertinent part, that "[n]o ruling of

the trial court . . . will be considered as a basis for reversal

unless the objection was stated together with the grounds

therefore at the time of the ruling."   (Emphasis added.)   Thus, we

will not consider a claim of trial court error as a ground for

reversal "where no timely objection was made."   Marshall v.

Commonwealth, 26 Va. App. 627, 636, 496 S.E.2d 120, 125 (1998).

Likewise, we will not consider an argument on appeal that is

different from the argument presented to the trial court, even if

it relates to the same issue.   See Rule 5A:18; Buck v.

Commonwealth, 247 Va. 449, 452-53, 443 S.E.2d 414, 416 (1994);

Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488

(1998).   The purpose of these rules is to ensure that the trial

court and opposing party are given the opportunity to

intelligently address, examine, and resolve issues in the trial

court, thus avoiding unnecessary appeals and reversals.     Lee v.

Lee, 12 Va. App. 512, 514, 404 S.E.2d 736, 737 (1991) (en banc);

Kaufman v. Kaufman, 12 Va. App. 1200, 1204, 409 S.E.2d 1, 3-4

(1991).



                                - 7 -
     Lee acknowledges that he did not preserve these issues but

asks us to find that the trial judge committed manifest injustice

and to invoke the "ends of justice" exception to Rule 5A:18 in

order to consider the merits of his claims.   "[T]he ends of

justice exception is narrow and is to be used sparingly . . . ."

Brown v. Commonwealth, 8 Va. App. 126, 132, 380 S.E.2d 8, 10

(1989).   "In order to avail oneself of the exception, a defendant

must affirmatively show that a miscarriage of justice has

occurred, not that a miscarriage might have occurred."   Redman v.

Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997).

The trial error must be "clear, substantial and material."     Brown,

8 Va. App. at 132, 380 S.E.2d at 11.

     The statements Lee made to Detective Toney and to the

victim's mother were clearly admissible against him as party

admissions.   Furthermore, it was entirely proper for the

prosecutor to argue and comment on the testimony, any

discrepancies in the evidence, and inferences and conclusions to

be drawn therefrom.   Lee does not affirmatively persuade us, as he

must, that a miscarriage of justice occurred because of the

Commonwealth's argument.    Finally, the record reflects that the

trial judge instructed the jury to disregard the information about

an unrelated investigation that was brought up during the penalty

phase.    Juries are presumed to follow "an explicit cautionary

instruction promptly given, unless the record clearly shows that

the jury disregarded it."    Spencer v. Commonwealth, 240 Va. 78,

                                - 8 -
95, 393 S.E.2d 609, 619 (1990).   The record does not indicate the

jury failed to follow the cautionary instruction given by the

trial judge.   We hold, therefore, that the "ends of justice"

exception does not require us to consider these arguments on

appeal.

     Accordingly, we affirm Lee's convictions.

                                                         Affirmed.




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