                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Humphreys, McCullough and Senior Judge Haley
UNPUBLISHED


              Argued at Fredericksburg, Virginia


              HUGO QUISQUE
                                                                             MEMORANDUM OPINION* BY
              v.     Record No. 1372-14-4                                    JUDGE JAMES W. HALEY, JR.
                                                                                FEBRUARY 23, 2016
              COMMONWEALTH OF VIRGINIA


                                    FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                               Brett A. Kassabian, Judge

                               Dawn M. Butorac, Deputy Public Defender, for appellant.

                               Katherine Quinlan Adelfio, Assistant Attorney General (Mark R.
                               Herring, Attorney General, on brief), for appellee.


                     Hugo Quisque (“appellant”) was tried by a jury and convicted of one count of rape in

              violation of Code § 18.2-61(A)(ii).1 Appellant maintains that the evidence was insufficient to

              establish the victim was physically helpless at the time he had intercourse with her. We disagree

              and affirm.

                                                             FACTS

                     “When examining a challenge to the sufficiency of the evidence, an appellate court must

              review the evidence in the light most favorable to the prevailing party at trial and consider any

              reasonable inferences from the facts proved.” Viney v. Commonwealth, 269 Va. 296, 299, 609

              S.E.2d 26, 28 (2005).




                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                       As here relevant, Code § 18.2-61(A)(ii) prohibits “sexual intercourse . . . through the
              use of the complaining witness’s mental incapacity or physical helplessness.”
       The evidence, viewed in the light most favorable to the Commonwealth, proved that on

the night of July 13, 2013, the victim returned home from a party she had attended with her

husband and friends. Appellant, who rented a room in the victim’s apartment, joined the victim,

her husband, and their friends after the party. The victim consumed three to four beers at the

party and had more beer and liquor after she arrived back at her residence. She went to her

bedroom, got into her bed, and fell asleep. She explained she woke up to find someone on top of

her and that she “thought it was [her] husband.” When she opened her eyes she was “shock[ed]”

to discover the man was appellant. She slapped him and “from there he disappeared.” She

immediately informed her husband. When the victim’s husband confronted appellant, appellant

initially denied having been in the victim’s room and claimed she had been dreaming.

       The victim’s husband testified appellant continued drinking with him and his friend for

thirty to sixty minutes after the victim went to her bedroom. The victim’s husband fell asleep on

the couch and awoke to find the victim shaking him. Initially she was unable to speak and then

told him appellant had attacked her. The victim’s husband confirmed that when he confronted

appellant, appellant claimed nothing had happened. The victim’s husband called the police.

       After the police arrived at the residence, they discovered appellant had fled through his

bedroom window. Later, appellant called the victim’s husband and admitted going into the

victim’s bedroom but claimed he had made a mistake and entered the wrong bedroom. The

police apprehended appellant a short distance from the residence. Appellant initially denied

having had intercourse with the victim, but later claimed he had accidentally entered the victim’s

room and had intercourse with her, believing her to be his girlfriend who also lived in the

residence. He also admitted that he jumped from his bedroom window when he heard that the

police had arrived at the apartment.



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                                      STANDARD OF REVIEW

        When faced with a challenge to the sufficiency of the evidence, we “‘presume the judgment

of the trial court to be correct’ and reverse only if the trial court’s decision is ‘plainly wrong or

without evidence to support it.’” Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444,

447 (2003) (en banc) (quoting Davis v. Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d 875,

876-77 (2002)). When a criminal conviction is by jury, “we review the jury’s decision to see if

reasonable jurors could have made the choices that the jury did make. We let the decision stand

unless we conclude no rational juror could have reached that decision.” Pease v. Commonwealth,

39 Va. App. 342, 355, 573 S.E.2d 272, 278 (2002) (en banc).

        It follows that a reviewing court does not “ask itself whether it believes that the evidence at

the trial established guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318-19

(1979) (emphasis in original and citation omitted). Instead, we ask only “whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.” Maxwell v. Commonwealth, 275

Va. 437, 442, 657 S.E.2d 499, 502 (2008) (quoting Jackson, 443 U.S. at 319) (emphasis in original).

        “This deferential standard of review ‘applies not only to the historical facts themselves, but

the inferences from those facts as well.’” Clanton v. Commonwealth, 53 Va. App. 561, 566, 673

S.E.2d 904, 907 (2009) (en banc) (quoting Crowder v. Commonwealth, 41 Va. App. 658, 663 n.2,

588 S.E.2d 384, 387 n.2 (2003)). “Thus, a factfinder may ‘draw reasonable inferences from basic

facts to ultimate facts,’” Tizon v. Commonwealth, 60 Va. App. 1, 10, 723 S.E.2d 260, 264 (2012)

(quoting Haskins v. Commonwealth, 44 Va. App. 1, 10, 602 S.E.2d 402, 406 (2004)), “unless doing

so would push ‘into the realm of non sequitur,’” id. (quoting Thomas v. Commonwealth, 48

Va. App. 605, 608, 633 S.E.2d 229, 231 (2006)).



                                                   -3-
                                            ANALYSIS

       Code § 18.2-61(A) provides, in pertinent part, that “[i]f any person has sexual intercourse

with a complaining witness who is not his or her spouse . . . and such act is accomplished . . .

through the use of the complaining witness’s . . . physical helplessness . . . he or she shall be

guilty of rape.” The “physical helplessness” contemplated by the statute “means

unconsciousness or any other condition existing at the time of an offense under this article which

otherwise rendered the complaining witness physically unable to communicate an unwillingness

to act and about which the accused knew or should have known.” Code § 18.2-67.10(4). Sleep

can constitute the requisite “physical helplessness.” See Woodward v. Commonwealth, 12

Va. App. 118, 121, 402 S.E.2d 244, 245-46 (1991).

       Appellant argues only that the evidence failed to establish the victim was “physically

helpless.” He concedes that “[b]eing asleep can be deemed to be physically helpless,” but argues

“it was not applicable in this case because [the victim’s] testimony belies the notion that she was

unconscious or unable to communicate.”

       Thus, the sole question before us is whether sufficient evidence supports the jury’s

determination that the victim was unconscious or was otherwise rendered “physically unable to

communicate an unwillingness to act” at the time appellant had sexual intercourse with her.

       The victim, testifying through a Spanish interpreter, explained she was asleep in her room

when she felt her pants being removed. She was asked “[w]hen you first felt his penis inside

your vagina, how awake were you?” She answered “I was still asleep.” She also stated she was

“extremely tired” and was “half asleep” when appellant’s penis first entered her vagina. She

testified “[i]t happened fast” and that when she opened her eyes, appellant was on top of her with

his penis inside her. Although appellant argues the victim was “fully aware” during the incident,



                                                 -4-
her testimony supports the jury’s conclusion that she was sleeping and was not conscious when

appellant removed her pants and penetrated her.

       In Woodward, the victim consumed alcohol and cocaine. 12 Va. App. at 119, 402 S.E.2d

at 244-45. The next morning, she awoke to “a presence” getting into bed with her. Id. at 120,

402 S.E.2d at 245. The victim testified that she did not initially react because she thought it was

her boyfriend, rather than the appellant. Id.

       Similarly, in this case, the victim consumed alcohol before going to sleep in the room she

shared with her husband. Her husband’s testimony established the victim had been sleeping for

some time before appellant entered the room. As in Woodward, the victim in this case “did not

fully awake” and at first assumed her husband had gotten into bed with her. Id.

       Appellant asserts without support that “[t]he legislature clearly intended for the state of

[being] physically helpless to involve someone being totally unaware of what was happening to

them.” In Woodward, this Court upheld appellant’s rape conviction, stating that “at the time

[appellant] had sexual intercourse with the victim, she was asleep and therefore physically

helpless.” 12 Va. App. at 120, 402 S.E.2d at 245. We specifically noted that “sleep is not an all

or nothing condition” and that the “physical state of ‘sleep’ is of common experience and

understanding to the average person or juror.” Id. at 121, 402 S.E.2d at 246. The jury in this

case considered the victim’s testimony and concluded she was physically helpless at the time of

the sexual activity.

       Furthermore, appellant’s behavior after the victim and her husband confronted him

suggests he knowingly took advantage of the victim’s physical helplessness. After initially

denying having even entered the victim’s bedroom, appellant jumped from a third floor window

in order to avoid the police. The jury could infer appellant’s consciousness of guilt by his flight

from the police. Ricks v. Commonwealth, 39 Va. App. 330, 335, 573 S.E.2d 266, 268 (2002)
                                                -5-
(“[a]ny flight at a time when it may be to avoid arrest, prosecution, or confinement tends to show

a consciousness of guilt” (quoting Langhorne v.Commonwealth, 13 Va. App. 97, 103, 409

S.E.2d 476, 480 (1991))). Appellant then admitted only to having entered the room and finally

acknowledged having had intercourse with the victim, albeit mistakenly. “A defendant’s false

statements are probative to show he is trying to conceal his guilt, and thus are evidence of his

guilt.” Rollston v. Commonwealth, 11 Va. App. 535, 548, 399 S.E.2d 823, 831 (1991).

       Under the circumstances, a rational trier of fact could have found beyond a reasonable

doubt that the victim was physically unable to communicate an unwillingness to act. We will not

disturb that conclusion on appeal because “we have no authority ‘to preside de novo over a

second trial.’” Ervin v. Commonwealth, 57 Va. App. 495, 503, 704 S.E.2d 135, 139 (2011) (en

banc) (quoting Haskins, 44 Va. App. at 11, 602 S.E.2d at 407). Therefore, viewing the evidence

in the light most favorable to the Commonwealth, the evidence was sufficient to support the

jury’s conclusion that the victim was asleep and physically helpless at the time of the unwanted

sexual contact. Accordingly, we affirm the jury’s verdict.

                                                                                          Affirmed.




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