                     COURT OF APPEALS OF VIRGINIA


Present: Judges Bumgardner, Felton and Senior Judge Overton
Argued at Chesapeake, Virginia


JEROME A. BEALE
                                          MEMORANDUM OPINION * BY
v.   Record No. 1252-02-1               JUDGE WALTER S. FELTON JR.
                                               APRIL 29, 2003
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
                     D. Arthur Kelsey, Judge

          Felipita Athanas, Appellate Counsel
          (S. Jane Chittom, Appellate Defender;
          Public Defender Commission, on briefs), for
          appellant.

          Amy L. Marshall, Assistant Attorney General
          (Jerry W. Kilgore, Attorney General, on
          brief), for appellee.


     Jerome A. Beale was convicted by a jury of marital rape, in

violation of Code § 18.2-61(B)(i). 1   On appeal, Beale contends

the trial court erred in (1) holding that the Commonwealth's

peremptory strikes of potential jurors did not violate his

constitutional rights under Batson v. Kentucky, 476 U.S. 79



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
       In 2002, subsequent to Beale's conviction, Code
§ 18.2-61(B) was amended. The General Assembly deleted the
second paragraph, which read: "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."
(1986), and (2) admitting evidence of his prior conduct arising

out of an offense of which he had been previously acquitted.

Finding no error, we affirm the judgment of the trial court.

                            I.     BACKGROUND

                              A.    OFFENSE

        Jerome Beale and Alicia Smith Beale, husband and wife,

separated in May 2001.    On September 1, 2001, an enraged Beale

unexpectedly appeared at Mrs. Beale's residence as she prepared

to leave with her children.      When he arrived, his eyes were

bulging, he was cursing, and he demanded to know why she was

ignoring his phone calls.    Mrs. Beale became frightened and

drove away.    Later that day, at Beale's request, Mrs. Beale

dropped their children off at the barracks where he was living.

She then visited her cousin until 3:00 a.m.

        Upon returning to her residence, Mrs. Beale was met by

Beale.    He yelled and cursed at her, calling her a "bitch," a

"slut" and a "whore."    He insisted on knowing where she was

earlier that evening and instructed her to get out of the car.

Beale eventually calmed down, and Mrs. Beale got out of the car.

As they entered the house, Beale "snapped."     He grabbed Mrs.

Beale's arm, and led her into the master bedroom.     Beale punched

and choked Mrs. Beale for twenty to thirty minutes while

repeatedly calling her vulgar names.

        Beale then dragged Mrs. Beale by her hair into her son's

room.    He instructed her to sit in the corner and struck her

                                   - 2 -
every time she attempted to move.    At one point Beale left the

bedroom and went into the den.    He found Mrs. Beale's purse and

rifled through it.   While Beale rifled through her purse, Mrs.

Beale stood up and attempted an escape.   Beale saw her, picked

up a stereo speaker, and threatened to "bash [her] face in" if

she moved again.

     Shortly thereafter, Beale insisted that Mrs. Beale leave

with him in the car.   She testified that she did not want to go

but believed he would beat her if she refused.   He grabbed her

arm, led her out of the house, and put her into the rear

passenger seat of the car.   Mrs. Beale asked Beale to pick up

their children, but he refused.    He instead drove to a back area

of the Tidewater Community College campus.   He told Mrs. Beale

to get into the front seat and threatened to beat her if she did

not obey.   Beale then ordered her to remove her clothes.   She

initially refused, but eventually complied to avoid further

physical harm.    Mrs. Beale did not fight when Beale removed her

pants and underwear.   Beale proceeded to have sexual intercourse

with Mrs. Beale without her consent.

     After having sexual intercourse with her, Beale eventually

brought Mrs. Beale back to her residence.    Upon arriving at the

house, Beale repeatedly asked her if she intended to call the

police.   He followed Mrs. Beale inside the residence and removed

the two phones.    As soon as Beale left, Mrs. Beale ran next door

and contacted the police.

                                 - 3 -
                              B.     PRETRIAL MOTION

     Prior to the trial, Beale sought through a motion in limine

to exclude evidence on related offenses arising out of the same

course of conduct. 2   The court denied the motion and found that

the conduct within the twenty-four-hour period immediately

before the alleged marital rape was relevant to (1) the state of

mind of the victim at the time the intercourse took place, (2)

the degree of force to be demonstrated in the Commonwealth's

case, and (3) Beale's assertion that the intercourse was

consensual.

                         C.        JURY SELECTION

     During jury selection, the Commonwealth used its peremptory

challenges to strike four African-American women from the

venire, Ms. Bailey, Ms. Twine, Mrs. Bowden, and Ms. Morgan.

Beale objected that the strikes violated Batson v. Kentucky, 476

U.S. 79 (1986).   Pursuant to Batson, the court requested that

the Commonwealth state the reasons for each of its strikes.

     The Commonwealth stated that Ms. Bailey was struck from the

venire because "she was looking up and did not seem to be

fixated on the [j]udge."      Beale's attorney responded that

inattentiveness "could be said . . . about just about every


     2
       Beale was previously convicted by a jury of assault and
battery for striking Mrs. Beale while in her residence that
night. He was acquitted by the same jury of the charge of
abduction with intent to defile, which also stemmed from his
conduct during the early hours of September 2, 2001.


                                     - 4 -
juror."   The Commonwealth reiterated its desire for attentive

jurors.   The trial court concluded that inattentiveness is a

satisfactory explanation under Batson and that Beale had not

rebutted the proffered reason as pretextual.    The trial court

ruled that striking Ms. Bailey from the venire did not violate

Batson.

     As to the reason Ms. Twine was struck from the venire, the

Commonwealth stated:

           Ms. Twine looked down several times,
           especially when [the court] [was] asking a
           question as to whether any juror has any
           predisposition towards the guilt or
           innocence of the defendant. She looked
           around, she was not fixated on [the court's]
           questions and on [the court's] recitation.
           It started there and it seemed to go through
           the recitation at various intervals.

Beale's attorney argued that he did not notice the alleged

inattentiveness.    In addition, he requested that the jurors be

brought back before the court and questioned to determine

whether they were paying attention.     The court denied the

request and held that "there is no due process right to an

individual voir dire examination post-Batson request when the

proffered reason for the strike is demeanor and

inattentiveness."

     Regarding the reason Mrs. Bowden was struck from the

venire, the Commonwealth explained:

           Throughout the proceedings she was the least
           attentive juror. At various times she had
           her eyes closed through many of the

                                - 5 -
               questions. When I asked questions, when Mr.
               Parnell asked questions, and when the
               [c]ourt was going through the directions.
               In addition, she sighed when [the court]
               [was] specifically asking about any
               knowledge about the case from the press.

               Her lack of attentiveness went way beyond
               the first two. But it was enough that I
               noted three or four places when her eyes
               were simply closed during the time that
               anyone was talking.

       Beale's attorney noted that Mrs. Bowden was the third

African-American female that the Commonwealth was claiming to be

inattentive.      He again stated that he failed to notice any

inattentiveness.      The trial judge noted that he too "did not

notice attentive [sic] or lack of attentiveness," but that he

"wasn't looking for it the way [the parties] were looking for

it."       The court denied the motion as to Mrs. Bowden and found

that the Commonwealth's explanation for striking her was proper

under Batson.

       The Commonwealth's fourth peremptory strike, Ms. Morgan, is

not a subject of this appeal. 3

                           II.   BATSON CHALLENGE

       We first consider whether the trial court erred in holding

that the Commonwealth's peremptory strikes of potential jurors



       3
       The Commonwealth struck Ms. Morgan based on a 1976 charge
of larceny. The Commonwealth planned to impeach one of Beale's
witnesses based on a larceny conviction from the same time
period. The Commonwealth felt that if it impeached or attacked
the witness on the larceny conviction that Ms. Morgan might be
biased.

                                    - 6 -
did not violate Beale's constitutional rights under Batson.

Beale contends that the trial court failed to make a finding

that the reasons offered by the Commonwealth for its peremptory

strikes were race-neutral.   We find no error in the trial

court's determination that the strikes were race-neutral and

that there was no discriminatory intent in the Commonwealth's

peremptory strikes.

                      A.   STANDARD OF REVIEW

     The Equal Protection Clause precludes a prosecutor from

excluding otherwise qualified and unbiased potential jurors

solely on the basis of their race.     Batson, 476 U.S. at 84.

Under Batson,

           [t]he defendant must make a prima facie
           showing that the prosecutor has exercised
           peremptory strikes on the basis of race.
           Powers v. Ohio, 499 U.S. 400, 409, 111
           S. Ct. 1364, 1370, 113 L.Ed.2d 411 (1991).
           If this showing is made, the burden shifts
           to the prosecutor to articulate a racially
           neutral explanation for striking the jurors
           in question. Batson, 476 U.S. at 96-97, 106
           S. Ct. at 1722-23. If the court determines
           that the proffered reasons are race-neutral,
           the defendant should be afforded an
           opportunity to show why the reasons, even
           though facially race-neutral, are merely
           pretextual and that the challenged strikes
           were based on race. United States v. Joe,
           928 F.2d 99, 103 (4th Cir. 1991). But,
           ultimately, the trial court must determine
           whether the defendant has carried his burden
           of proving purposeful discrimination.
           Batson, 476 U.S. at 98, 106 S. Ct. at 1724.

James v. Commonwealth, 247 Va. 459, 461-62, 442 S.E.2d 396, 398

(1994).   A trial court's decision on the ultimate question of

                               - 7 -
discriminatory intent represents a finding of fact that is

accorded great deference on appeal and will not be disturbed

unless clearly erroneous.       Barksdale v. Commonwealth, 17

Va. App. 456, 460, 438 S.E.2d 761, 763 (1993) (citing Hernandez

v. New York, 500 U.S. 352, 364, 368 (1991)).

              B.    PRIMA FACIE EVIDENCE OF DISCRIMINATION

     In the present case, the Commonwealth exercised its

peremptory strikes to remove four African-American females from

the venire.     Beale objected to and challenged the strikes,

contending the women were purposefully removed on the grounds of

their race. 4      Pursuant to Batson, Beale was required to make a

prima facie showing that the Commonwealth made the peremptory

strikes on the basis of race.       However, that showing did not

occur.   Immediately upon Beale's objection, the trial judge

requested the Commonwealth to articulate the reasons for the

strikes.

     Although the trial court did not explicitly make a finding

that the prima facie case had been established, "often the

actual sequence of events at trial merges the separate

procedural steps" incidental to a Batson challenge and analysis.

James, 247 Va. at 462, 442 S.E.2d at 398.       This "[c]onsolidation

of various steps does not invalidate the process as long as the


     4
       Beale did not pursue the issue of gender as grounds for
attacking the Commonwealth's peremptory strikes of the four
African-American women. Therefore we will not address that
issue on appeal.

                                   - 8 -
consolidation does not adversely impact the rights of any

party."     Id.   Both Beale and the Commonwealth were afforded the

opportunity to explain their respective positions and address

arguments forwarded by the opposing party.      Neither party's

rights were adversely affected by the trial judge's decision to

combine separate steps of the Batson process.

                    C.   RACIALLY NEUTRAL EXPLANATION

     "'In evaluating the race-neutrality of an attorney's

explanation, a court must determine whether, assuming the

proffered reasons for the peremptory challenges are true, the

challenges violate the Equal Protection Clause as a matter of

law.'"     Barksdale, 17 Va. App. at 459, 438 S.E.2d at 763

(quoting Hernandez, 500 U.S. at 359).      "If the explanation is

constitutionally acceptable, the 'decisive question' before the

trial judge then becomes 'whether counsel's . . . explanation

. . . should be believed.'"      Robertson v. Commonwealth, 18

Va. App. 635, 639, 445 S.E.2d 713, 715 (1994) (quoting

Hernandez, 500 U.S. at 365).      Once that has been settled, there

seems nothing left to review.      Id. (citing Hernandez, 500 U.S.

at 367).

     In the instant case, the Commonwealth presented the trial

court with ample evidence for it to make a finding that each of

the peremptory strikes exercised by the Commonwealth against the

three African-American potential jurors was race-neutral.        The

Commonwealth identified varied and specific behavior on the part

                                  - 9 -
of each stricken juror that was indicative of inattentiveness.

In Robertson, we held that "[m]anifestly, disinterested jurors

should be identified and removed whenever possible, irrespective

of race or gender."   Id. at 640, 445 S.E.2d at 716.

Inattentiveness is a valid race-neutral reason for a peremptory

strike.

     In explaining its reasons for striking each of the three

women, the Commonwealth explained first that Ms. Bailey "was

looking up and did not seem to be fixated on the [j]udge."

Ms. Twine, on the other hand, "looked down several times" and

was looking around during the court's questions and recitation.

Finally, the Commonwealth explained that Mrs. Bowden had her

eyes closed through many of the court's questions and "she

sighed when [the court] [was] specifically asking about any

knowledge about the case from the press."

     For each of the stricken jurors, the trial court made a

sufficient finding that the Commonwealth's reason for striking

the juror was race-neutral.   In addressing the peremptory strike

of Ms. Bailey, the trial court made the finding that

          assertions of inattentive demeanor and other
          demeanor observations which reflect that a
          potential juror is not concentrating or
          paying attention are satisfactory
          explanations under Batson unless there is
          some way to rebut the proffered reason is
          pretextual, so I'd deny the motion, and
          finding none, I will deny the motion with
          respect to Ms. Bailey.

(Emphasis added).

                              - 10 -
     Regarding Ms. Twine, the trial court found that "[it]

should assume in the absence of any rebutting evidence that it

was an appropriate strike, so I'll deny the Batson."

(Emphasis added).

     Finally, with regards to Mrs. Bowden, the trial court found

that "the explanation given is a proper proffered explanation

under the Batson precedent, and the response is not sufficient

to render it . . . a pretextual reason."   (Emphasis added).

     Based on varied descriptions of inattentiveness articulated

to the trial court, and the insufficient response by Beale to

render the explanations pretextual, the trial court properly

determined the explanations to be race-neutral.

               D.   PIERCING THE RACE-NEUTRAL REASON

     Beale attempted to pierce the Commonwealth's racially

neutral reason for the peremptory strikes by stating that he had

not observed any inattentiveness from the three jurors.   He also

argued that if they had exhibited any signs that they were not

paying attention, it is likely that white members of the venire

had appeared equally inattentive.   However, Beale did not

present any evidence of inattentiveness of other potential

jurors.   Beale requested that the court allow questioning of the

venire to determine whether the challenged jurors were paying

attention.   However, the trial judge denied the request, and

Beale has conceded that additional voir dire would be

procedurally incorrect.

                               - 11 -
     The trial court is uniquely able to assess the genuineness

of prosecutors' justifications of their peremptory strikes and

to determine whether an underlying discriminatory motivation

exists.   Finding no clear error in the record before us, we will

affirm the judgment of the trial court.     Winfield v.

Commonwealth, 12 Va. App. 446, 453, 404 S.E.2d 398, 402 (1991),

aff'd en banc, 14 Va. App. 1049, 421 S.E.2d 468 (1992).

           III.   COLLATERAL ESTOPPEL AND PRIOR BAD ACTS

     We next consider whether the trial court erred in admitting

evidence of Beale's conduct prior to the marital rape, evidence

previously admitted in the trial of an offense of which he was

acquitted by a jury.   Beale contends that the Commonwealth is

precluded from introducing evidence of his acts prior to the

marital rape on the grounds of collateral estoppel.       We find no

error.

                       A.   COLLATERAL ESTOPPEL

     Beale asserts that the trial court erred in admitting

evidence used in the prior trial because the jury acquitted him

of abduction with the intent to defile.    We disagree.

     It is "'usually impossible to determine with any precision

upon what basis the [fact finder] reached a verdict in a

criminal case,' leaving the defense of collateral estoppel

available to an accused only in 'a rare situation.'"       Ramadan v.

Commonwealth, 28 Va. App. 708, 714-15, 508 S.E.2d 357, 360



                                - 12 -
(1998) (quoting Jones v. Commonwealth, 217 Va. 231, 233, 228

S.E.2d 127, 128-29 (1976)).   "'The party seeking the protection

of collateral estoppel carries the burden of showing that the

verdict in the prior action necessarily decided the precise

issue he now seeks to preclude.'"     Id. at 714, 508 S.E.2d at 360

(quoting Rogers v. Commonwealth, 5 Va. App. 337, 341, 362 S.E.2d

752, 754 (1987)).

     Beale concedes that the jury in the previous trial could

have reached an acquittal on either the element of force or of

the intent to defile.   He cannot say with specificity which

issue was decided.

          Where a previous judgment of acquittal was
          based upon a general verdict, as is usually
          the case, this [realistic and rational]
          approach requires a court to "examine the
          record of a prior proceeding, taking into
          account the pleadings, evidence, charge, and
          other relevant matter, and conclude whether
          a rational jury could have grounded its
          verdict upon an issue other than that which
          the defendant seeks to foreclose from
          consideration."

Jones, 217 Va. at 233, 228 S.E.2d at 129 (quoting Ashe v.

Swenson, 397 U.S. 436, 444 (1970)).

     The burden is on Beale to provide this Court with a record

that supports his claim of error.     Kerr v. Commonwealth, 35

Va. App. 149, 151, 543 S.E.2d 612, 613 (2001).    Since Beale

failed to prove that the prior proceeding necessarily decided

the issue he seeks to foreclose, we find that collateral

estoppel did not bar the admission of the evidence regarding

                              - 13 -
Beale's conduct during the period leading up to the marital

rape.

                          B.   PRIOR BAD ACTS

        The trial court did not abuse its discretion when it

allowed the jury to hear evidence of Beale's conduct that

occurred prior to the marital rape.       As a general rule, evidence

that shows or tends to show crimes or other bad acts committed

by the accused is inadmissible for the purpose of proving that

the accused committed the particular crime charged.        Kirkpatrick

v. Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802, 805 (1970).

"[Evidence of prior crimes] merely show[s] that [an accused] has

the propensity to commit the crime [charged] and this inference

has been held error because it reverses his presumption of

innocence."     Spence v. Commonwealth, 12 Va. App. 1040, 1045, 407

S.E.2d 916, 918 (1991) (citing Lewis v. Commonwealth, 225 Va.

497, 502, 303 S.E.2d 890, 893 (1983)).      Its admissibility is

error.

        "'There are, however, well-established exceptions to the

general rule.'"     Mughrabi v. Commonwealth, 38 Va. App. 538, 545,

567 S.E.2d 542, 545 (2002) (quoting Cheng v. Commonwealth, 240

Va. 26, 34, 393 S.E.2d 599, 603 (1990)).        "'If the evidence of

other conduct is connected with the present offense, or tends to

prove any element or fact in issue at trial, it should be

admitted, whether or not it tends to show the defendant guilty

of another crime.'"     Parnell v. Commonwealth, 15 Va. App. 342,

                                 - 14 -
348, 423 S.E.2d 834, 838 (1992) (quoting Scott v. Commonwealth,

228 Va. 519, 527, 323 S.E.2d 572, 577 (1984)).

     Beale's prior conduct was clearly interwoven with the crime

of marital rape.   During the time period leading up to the

marital rape, Beale at all times asserted control over Mrs.

Beale.   He repeatedly hit her when she tried to escape.    He

grabbed her arm, pulled her to the car, and placed her in the

back seat.   Beale drove Mrs. Beale to a place she did not wish

to go and threatened physical violence to get her into the front

seat, where the marital rape occurred.

     In addition to this conduct being interwoven with the

crime, the evidence of Beale's prior acts of repeated violence

against Mrs. Beale, within the twenty-four hours leading up to

the time of the marital rape, and his asportation of her against

her will to a secluded area bears on Mrs. Beale's state of mind

and the likelihood that sexual intercourse was not consensual.

     In Morse v. Commonwealth, 17 Va. App. 627, 440 S.E.2d 145

(1994), Morse was charged with marital sexual assault.     Mrs.

Morse testified at trial about eight to twelve incidents over an

unspecified period of time when Morse acted violently towards

her in demanding sexual intercourse.   He objected to the

admission of the testimony, arguing that the testimony offered

in that instance lacked specificity in detail and adequate

proximity in time to the crime charged.   The trial court

overruled his objection and allowed the testimony into evidence.

                              - 15 -
On appeal, this Court held that the accused's prior threats and

violence towards his wife "tend[ed] to prove that the

intercourse in question was accomplished by conduct that was

tantamount to a present threat of force by [the accused] against

[his wife]."   Id. at 632, 440 S.E.2d at 148.

     Beale's beating and forcible taking of Mrs. Beale against

her will to a remote area is analogous to the conduct in Morse.

However, in this case the temporal nexus between Beale's

violence and the commission of the marital rape is closer.

Here, the violence occurred within hours of the sexual

intercourse, as opposed to weeks before.     See Collins v.

Commonwealth, 226 Va. 223, 230, 307 S.E.2d 884, 888 (1983)

(remoteness in time is a consideration for determining probative

value of the other bad acts).    Beale's conduct leading up to the

intercourse tended to prove that he used a present threat of

force against his wife to consummate an act of non-consensual

intercourse.

     Beale's prior bad acts were also important in establishing

his state of mind toward Mrs. Beale.     In Sutphin v.

Commonwealth, 1 Va. App. 241, 245, 337 S.E.2d 897, 899 (1985),

we held that evidence of prior crimes or bad acts may be

admissible "to show the conduct and feeling of the accused

towards his victim, or to establish their prior

relations . . . ."   In the case at bar, Beale's conduct just



                                - 16 -
hours before the sexual intercourse tends to prove his animus

toward Mrs. Beale at the time of the marital rape.

        "'"The admissibility of evidence is within the broad

discretion of the trial court, and a ruling will not be

disturbed on appeal in the absence of an abuse of discretion."'"

Ricks v. Commonwealth, 39 Va. App. 330, 334, 573 S.E.2d 266, 268

(2002) (quoting Summerlin v. Commonwealth, 37 Va. App. 288, 293,

557 S.E.2d 731, 734 (2002) (quoting Blain v. Commonwealth, 7

Va. App. 10, 16, 371 S.E.2d 838, 842 (1988))).      The trial judge

did not abuse his discretion when he allowed the jury to hear

evidence of Beale's prior conduct leading up to the marital

rape.       That evidence was closely related to the offense charged.

Further, it tended to prove (1) the state of mind of the victim

at the time the intercourse took place, (2) the degree of force

to be demonstrated in the Commonwealth's case, (3) that it was

less likely that the sexual intercourse was consensual, and (4)

Beale's state of mind. 5     An accused is not entitled "to have the

evidence 'sanitized' so as to deny the jury knowledge of all but

the immediate crime for which he is on trial."       Jones v.




        5
       Although the trial judge stated he would give a cautionary
instruction on this issue to the jury, Beale had the
responsibility of submitting the jury instruction to the court.
He failed to do so. "The court was not required to give such an
instruction sua sponte." Manetta v. Commonwealth, 231 Va. 123,
127 n.2, 340 S.E.2d 828, 830 n.2 (1986) (though trial judge
offered to give a limiting instruction, Manetta made no such
request for tactical reasons).

                                  - 17 -
Commonwealth, 32 Va. App. 30, 41, 526 S.E.2d 281, 286 (2000)

(quoting Scott, 228 Va. at 526-27, 323 S.E.2d at 577).

     Accordingly, we affirm the judgment of the trial court.

                                                         Affirmed.




                             - 18 -
