                    COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Annunziata
Argued at Salem, Virginia


LATOVIA JOEL WHITEHEAD
                                         MEMORANDUM OPINION * BY
v.         Record No. 0576-95-3        JUDGE ROSEMARIE ANNUNZIATA
                                              MAY 21, 1996
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
                     James F. Ingram, Judge
          Lawrence D. Gott, Public Defender, for
          appellant.

          Michael T. Judge, Assistant Attorney General
          (James S. Gilmore, III, Attorney General, on
          brief), for appellee.



     Appellant, Latovia Joel Whitehead, appeals his conviction of

sodomy in violation of Code § 18.2-67.1.    He contends the trial

court erred in allowing his wife to testify against him.    Finding

no error, we affirm.

                                  I.

     The Commonwealth's evidence consisted solely of the

testimony of appellant's wife, Rhonda Whitehead ("Rhonda").

Rhonda testified that she was married to appellant and that she

and appellant were the parents of two girls, L., age 5, and a

younger child, O.   Appellant objected to further testimony on the

ground of spousal privilege.   The court overruled the objection,

stating that an exception to the spousal privilege rule applied

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
because appellant was being prosecuted for an offense allegedly

committed against his and his wife's minor child.

     Rhonda testified that she lived in an apartment with the two

girls and that appellant, who was not on the lease, stayed there

occasionally.   She further testified that on the afternoon of

July 2, 1994 she asked appellant to watch the girls while she

went to the store.   When she returned, Rhonda noticed that the

volume of the television was turned up and that the front door

was locked.   Upon entering, she found O. asleep on the couch but

saw neither appellant nor L.   Rhonda searched the apartment for

the two and, upon reaching the bathroom, found the door locked.

She unlocked and opened the door to see L. standing against the

tub and appellant standing, with his penis in the child's mouth.

Rhonda asked appellant what he was doing, but he did not respond

as he exited the bathroom.   After "fussing" with his wife,

appellant responded to her inquiry, stating that "she asked for

it, and she wanted some."
                                II.

     Code § 19.2-271.2 provides, in part:
               In criminal cases husband and wife
          shall be allowed, and, subject to the
          rules of evidence governing other witnesses
          and subject to the exception stated in
          § 8.01-398, may be compelled to testify in
          behalf of each other, but neither shall be
          compelled, nor, without the consent of the
          other, allowed, to be called as a witness
          against the other, except (i) in the case of
          a prosecution for an offense committed by one
          against . . . a minor child of either, . . . .
               In the prosecution for a criminal
          offense as set forth . . . above, each shall



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          be a competent witness except as to
          privileged communications.


This statute protects two "separate and distinct" interests.          See

Stewart v. Commonwealth, 219 Va. 887, 893, 252 S.E.2d 329, 333

(1979); Church v. Commonwealth, 230 Va. 208, 212-13, 335 S.E.2d

823, 826 (1985).    One interest is "[t]he privilege of an accused

to prevent his spouse from testifying against him."       E.g.,

Church, 230 Va. at 212, 335 S.E.2d at 826.      The other privilege

"insur[es] the inviolability of confidential communications

between spouses."    Id.; see also Code § 8.01-398.

     The statute sets out a clear exception to appellant's right

to invoke his testimonial privilege inasmuch as he was prosecuted

for an offense committed against his and his wife's minor child.

Code § 19.2-271.2; see also Cumbee v. Commonwealth, 219 Va.

1132, 1137, 254 S.E.2d 112, 115-16 (1979).

     Appellant's contention that his interspousal confidential

communications privilege was violated is controlled by the

holding in Church.    Because appellant's objection at trial

addressed only his testimonial privilege, his claim based on a

violation of his interspousal confidential communications

privilege is procedurally barred.       See Rule 5A:18; Church, 230

Va. at 212-13, 335 S.E.2d at 826.

     We find no reason to invoke the ends of justice exception to

Rule 5A:18.   Privileged communications include "all information

or knowledge privately imparted and made known by one spouse to

the other by virtue of and in consequence of the marital relation



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through conduct, acts, signs, and spoken or written words."

Edwards v. Commonwealth, 20 Va. App. 470, 474, 457 S.E.2d 797,

799 (1995) (interpreting privilege as set forth in Code

§ 8.01-398(A)) (quoting Menefee v. Commonwealth, 189 Va. 900,

912, 55 S.E.2d 9, 15 (1949)).   Conduct which does not convey

information to the other spouse, such as a husband's beating of

his wife and daughter, is not privileged.   Id. at 476, 457 S.E.2d

at 800 (citing Osborne v. Commonwealth, 214 Va. 691, 692, 204

S.E.2d 289, 290 (1974)).   We find appellant's argument that by

placing his penis in his daughter's mouth he communicated

privileged information to his wife is meritless.
     Furthermore, even assuming husband's conduct was a

communication of information, the privilege only protects

confidential communications "of a secret nature between husband

and wife."   Id. at 474, 457 S.E.2d at 800 (quoting Menefee, 189

Va. at 907, 55 S.E.2d at 13).   Admissibility depends on whether

the communication was intended to be secret.   Id. at 475, 457

S.E.2d at 800.   Here, the evidence supports the inference that

appellant intended his "communication" to be a secret from his
wife, not a secret between the two.

     Finally, in light of Rhonda's testimony that she saw

appellant with his penis in their daughter's mouth, any error of

the trial court allowing wife to testify as to appellant's

statement that "she asked for it, and she wanted some" is

likewise harmless.   See Lavinder v. Commonwealth, 12 Va. App.




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1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc).




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Accordingly, appellant's conviction is affirmed.

                                                   Affirmed.




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