                  COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Senior Judge Cole
Argued at Richmond, Virginia


GEORGE ROBERT NEWBY, JR.
                                    MEMORANDUM OPINION * BY
v.   Record No. 2473-95-2            JUDGE LARRY G. ELDER
                                         JULY 1, 1997
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                   Herbert C. Gill, Jr., Judge
          John B. Boatwright, III (Boatwright & Linka,
          on briefs), for appellant.

          Richard B. Smith, Assistant Attorney General
          (James S. Gilmore, III, Attorney General, on
          brief), for appellee.



     A jury convicted George Robert Newby of rape, forcible

sodomy, and animate object sexual penetration.     See Code

§§ 18.2-61, 18.2-67.1, and 18.2-67.2.   On appeal, Newby argues

that the trial judge erred in (1) denying Newby's motion to

strike the evidence on the charge of forcible sodomy, (2) denying

Newby's motion for a mistrial, and (3) refusing to inform the

jury, in response to a question posed by the jury, that any

sentence imposed would not be subject to parole.    For the reasons

that follow, we affirm the convictions.

                               I.

     At trial, the victim testified that on the first night that

she began working as a waitress and bartender at Crossflite

     *
      Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
Restaurant, Newby, a customer, was drinking beer and playing

pool.    During the course of the evening, he conversed with the

victim about her family and he made several comments about her

appearance.    At closing time when another female employee asked

customers to leave, Newby and two other customers were still in

the bar.    After Newby and the other customers left, the victim

and the other employee began cleaning and closing the bar.      When

the other employee had difficulty locking the front door, she

opened the door and was startled to find Newby leaning against

the wall outside.    Newby offered to help and reentered the

restaurant.    When the two female employees finished cleaning,

Newby was still present.    Newby walked the victim to her car and

asked for a ride home.
        The victim agreed and drove following Newby's directions.

When she entered the driveway on a nearby street, Newby "brought

his [left] arm . . . around [her] neck."    As she tried to pull

away, Newby tightened his grip, threatened to kill her, and put a

sharp blade across her nose.    Newby then pushed her out of the

car and into the woods.    Newby made her undress, threw her

clothing into a ditch, and then "put his penis in [her] vagina."

The victim testified that because she "was very dry and

unlubricated," Newby removed his penis from her and "put his

mouth on [her] vaginal area and . . . drooled."    The victim

further specified that Newby's mouth "was on [her] vulva area."

        After these events, Newby stood up, pulled his pants up, and




                                  -2-
threw the victim's jeans to her.    Newby told her that if she told

anybody he would kill her and her children.      After the victim

repeatedly assured Newby that she would not tell anyone, Newby

stated, "This isn't the first time that I raped and you better

not be the first one to tell."

     When Newby told the victim that she could leave, she started

her car and drove into a ditch.    Newby went to the car and began

to push the car out of the ditch.       When they could not move the

car, Newby left, and the victim walked to a gas station.      She

called one of her female friends and told her that she had been

raped.   When her friend arrived, a police officer was with her.

The officer called an ambulance to take the victim to the

hospital.
     At the conclusion of the Commonwealth's case-in-chief, the

trial judge denied Newby's motion to strike the Commonwealth's

evidence on the charge of forcible sodomy.      Newby then testified

that the victim offered him a ride home on her own initiative,

stopped the car, walked with him to a ravine area, and

voluntarily engaged in mutual kissing and fondling.      Newby

testified that they engaged in consensual sexual intercourse.       He

further testified that while doing so he "did lick [her] vaginal

area and [he] did penetrate her with his [penis] and have sex,

but at no time did she say, 'No,' did she say, 'stop,' or

anything."

     On cross-examination, the Commonwealth's attorney asked




                                  -3-
Newby, "[Y]ou have, in fact, categorized yourself to other people

as a rapist, is that correct?"   Before Newby responded, his

attorney objected and requested a mistrial.   After hearing

argument, the trial judge overruled the motion for a mistrial and

instructed the jury to disregard the question.

     At the conclusion of all the evidence, the jury found Newby

guilty of rape, animate object sexual penetration, and forcible

sodomy.   When the jury was deliberating regarding the proper

sentence to impose, the jury asked the judge the following

questions:   "Does the no parole law apply here?" and "If not,

when will he be eligible for parole?"   Newby's attorney requested

the judge to instruct the jury regarding the unavailability of

parole.   The trial judge denied that request and told the jury

that "[t]he only way that I can answer those questions is . . .

that you cannot concern yourself with what may happen afterwards.

You must impose what sentence you feel is just under the

circumstances."   The jury imposed a sentence of thirty years for

the rape conviction, thirty years for the forcible sodomy

conviction, and twenty-five years for the animate object sexual

penetration conviction.
                                 II.

     Newby argues that the evidence was insufficient to prove

forcible sodomy because the testimony failed to establish

penetration of the victim's sexual organs.    We disagree.

     "[T]he issue of penetration is a question for the jury upon




                                 -4-
the evidence in the case and . . . the penetration that must be

shown need be only slight."    Ryan v. Commonwealth, 219 Va. 439,

444, 247 S.E.2d 698, 702 (1978).    "[P]enetration of any portion

of the vulva, which encompasses the 'external parts of the female

sex organs considered as a whole' and includes, beginning with

the outermost parts, the labia majora, labia minora, hymen,

vaginal opening and vagina, is sufficient to show penetration."

Love v. Commonwealth, 18 Va. App. 84, 88, 441 S.E.2d 709, 712

(1994) (citation omitted).
     "On appeal, we must view the evidence in the light most

favorable to the Commonwealth."     Id. at 87, 441 S.E.2d at 711.

The victim testified that Newby "put his mouth on [her] vaginal

area" and "on [her] vulva area."    In addition, Newby testified

that he "did lick [her] vaginal area."    Based on the evidence,

the jury could have found that during Newby's protracted assault

of the victim and effort to moisten her, his mouth penetrated her

vulva.   Indeed, the victim testified that his mouth was on her

vulva and that she could feel heat emanating from his mouth.     We

cannot say that this evidence was insufficient, as a matter of

law, to prove penetration.    See Ryan, 219 Va. at 441-45, 247

S.E.2d at 700-02 (finding the evidence sufficient where the

victim testified that the defendant licked her vagina).

                                III.

     Newby argues that the trial judge erred in denying his

motion for a mistrial after the Commonwealth's attorney asked




                                  -5-
Newby, on cross-examination, whether Newby had "categorized

[him]self to other people as a rapist."    We disagree.

       "Whether to grant a mistrial is a matter resting within the

sound discretion of a trial [judge]."     Wright v. Commonwealth,

245 Va. 177, 188, 427 S.E.2d 379, 387 (1993), vacated on other

grounds, 512 U.S. 1217 (1994).
          Whether improper evidence is so prejudicial
          as to require a mistrial is a question of
          fact to be resolved by the trial [judge] in
          each particular case. Unless this Court can
          say that the trial [judge's] resolution of
          that question was wrong as a matter of law,
          it will not disturb the trial [judge's]
          decision on appeal. A judgment will not be
          reversed for the improper admission of
          evidence that a [judge] subsequently directs
          a jury to disregard because juries are
          presumed to follow prompt, explicit, and
          curative instructions. When the evidence is
          so prejudicial that it "probably remained on
          the minds of the jury and influenced their
          verdict," however, the judgment will be
          reversed on appeal.

Beavers v. Commonwealth, 245 Va. 268, 280, 427 S.E.2d 411, 420

(1993) (citations omitted).

       In the argument on the motion for a mistrial, the

Commonwealth's attorney represented that Newby had earlier

authored a letter in which he described himself as a rapist and

made other statements.   The trial judge ruled that any testimony

about the document was inadmissible on grounds of relevance and

remoteness.   Under the circumstances of this case, we cannot say

that the question was "so prejudicial as to require a mistrial."
 Id.   Significantly, Newby did not answer the question.




                                 -6-
Moreover, the judge immediately gave a curative instruction that

admonished the jury "to disregard the . . . question."   Under

these circumstances, we hold that the trial judge did not abuse

his discretion in concluding that a mistrial was unwarranted.




                               -7-
                                  IV.

     Newby next argues that the trial judge erred in refusing to

inform the jury, in response to the jury's question, that Newby

would be ineligible for parole.    We disagree.

     A panel of this Court, which was presented with a strikingly

similar factual scenario, has already held that a trial judge

does not commit error by refusing to inform the jury that the

defendant is not eligible for parole.    See Mosby v. Commonwealth,

24 Va. App. 284, 482 S.E.2d 72 (1997).   We are bound by this

ruling and accordingly hold that the trial judge did not commit

error on this ground.
     Accordingly, we affirm the convictions.

                                                          Affirmed.




                                  -8-
Benton, J., concurring and dissenting.


     I concur in Parts I, II, and III of the majority opinion.

For the reasons more particularly stated in my dissenting opinion

in Walker v. Commonwealth, __ Va. App. ___, ___, ___ S.E.2d ___,

___ (1997) (Benton, J., dissenting), I do not concur in Part IV.

     While deciding the proper sentence to impose upon Newby, the

jury asked the trial judge, "Does the no parole law apply here?"

and "If not, when will he be eligible for parole?" 1    The jury's

effort to determine Newby's parole eligibility conclusively

establishes that the issue of parole had an impact on the jury's

sentencing decision.
     It is error not to instruct the jury when the jury may make

findings based upon a mistaken belief of the law.      See Martin v.

Commonwealth, 218 Va. 4, 7, 235 S.E.2d 304, 305 (1977) (per

curiam).   After the jury asked about parole, the judge knew the

jury was unaware that Newby was ineligible for parole.     Under

these circumstances, I would hold that the trial judge erred in

refusing to answer the jury's question.   See Walker, ___ Va. App.

at ___, ___ S.E.2d at ___ (Benton, J., dissenting) ("The courts

should not permit jurors to sentence based upon the erroneous

belief that parole release still exists.").

     To exacerbate matters, the trial judge responded to the

     1
      "The essence of parole is release from prison, before the
completion of sentence, on the condition that the prisoner abide
by certain rules during the balance of the sentence." Morrissey
v. Brewer, 408 U.S. 471, 477 (1972).




                                -9-
question by telling the jury, "you cannot concern yourself with

what may happen afterwards.    You must impose what sentence you

feel is just under the circumstances."    By referring to parole as

something that "might happen," the judge implied that parole was,

in fact, available.
             It is true, as the State points out, that
          the trial court admonished the jury that "you
          are instructed not to consider parole" and
          that parole "is not a proper issue for your
          consideration." Far from ensuring that the
          jury was not misled, however, this
          instruction actually suggested that parole
          was available but that the jury, for some
          unstated reason, should be blind to this
          fact. . . . While juries ordinarily are
          presumed to follow the court's instructions,
          we have recognized that in some circumstances
          "the risk that the jury will not, or cannot,
          follow instructions is so great, and the
          consequences of failure so vital to the
          defendant, that the practical and human
          limitations of the jury system cannot be
          ignored."


Simmons v. South Carolina, 512 U.S. 154, 170-71, 114 S. Ct. 2187,

2197 (1994) (plurality opinion) (citations omitted).    The trial

judge's response to the jury's question did not aid in

alleviating the confusion, and in fact, it may have misled the

jury.    Thus, I would hold that the trial judge erred by providing

a jury instruction that was misleading.     Cf. Blevins v.

Commonwealth, 209 Va. 622, 628, 166 S.E.2d 325, 330 (1969).

        I would therefore remand the case for re-sentencing in

accordance with Code § 19.2-295.1.




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