                    COURT OF APPEALS OF VIRGINIA


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


THOMAS LANGSTON

v.       Record No. 1946-94-2               MEMORANDUM OPINION * BY
                                             JUDGE MARVIN F. COLE
COMMONWEALTH OF VIRGINIA                        MARCH 12, 1996


            FROM THE CIRCUIT COURT OF GREENSVILLE COUNTY
                    Robert G. O'Hara, Jr., Judge

            H. Lee Townsend, III (Townsend & Bloom,
            P.L.L.C., on brief), for appellant.
            Thomas D. Bagwell, Assistant Attorney General
            (James S. Gilmore, III, Attorney General, on
            brief), for appellee.



     Thomas Langston (appellant) was convicted of attempted rape,

attempted sodomy, and willful injury to a correctional facility

employee in a jury trial.   On appeal, appellant contends that the

trial court erred in (1) refusing to remove jurors Fields,

Powell, Mason and Manning for cause, and (2) refusing to give the

jury his proffered consent instruction.    Finding no error, we

affirm.
                                I. FACTS

     On March 17, 1993, Linda Coleman, a correctional officer at

Greensville Correctional Center (GCC), went to the visiting room

to get a soda.    She saw appellant, an inmate, in the room and

thought it unusual for him to be there.    She went to press the

intercom button to report him, but appellant, from behind,

dragged her into the men's rest room.

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
       In the rest room, appellant sat on Coleman's stomach and

told her that he was going to sodomize her.     Coleman began to hit

appellant with her fists.    Appellant then said he was going to

have sexual intercourse with her.      Coleman fought again.

Appellant tried to remove Coleman's pants and she struggled with

him.   Coleman grabbed appellant's genitals and wrung them.

Appellant jumped off of her.    He told her to kiss him and she

refused.   Appellant left the rest room and told Coleman that if

she told anyone what happened, he would say that she had "come

on" to him.
       Coleman was treated for wounds to her lips, gums, and arm.

She suffered high blood pressure, which caused a mild stroke in

her eye, and she missed five months from work.     Appellant

suffered scratches to his face during the attack.
                 II.   Exclusion of Jurors for Cause

       During voir dire, juror Fields stated that he was acquainted

with Coleman.   Fields had purchased a car from a dealership where

Coleman had worked.    Fields stated that these contacts would not

influence his fairness or impartiality to serve on the jury.

       The fact that juror Fields was acquainted with Coleman was

not a basis for his exclusion for cause.     Neither was the fact

that Fields purchased a car from a dealership where Coleman had

worked, there being nothing in the record to show that Coleman

had anything to do with the transaction.     The trial court found

Fields to be impartial and free from prejudice.     We find no error

in this holding.

       On brief, appellant argues that Fields should have been




                                 -2-
removed from the jury because he previously had been represented

by the prosecutor in the case.   However, appellant did not make

this argument in the trial court and thus is barred by Rule 5A:18

from raising the issue for the first time on appeal.     See Jacques

v. Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631

(1991).

     The record indicates that juror Powell was employed by the

Greensville Correctional Center and knew Coleman only on a

speaking basis.    Juror Powell stated that these facts would in no

way influence her in her decision.     The trial court found Powell

to be impartial and we find no error in this decision.
     Juror Mason stated that she knew the victim through her

employment at Greensville Correctional Center.    They did not

socialize or visit each other's homes.    Mason ran a store, and

the victim, Linda Coleman, was a customer of the store.    She

stated that these relationships would not influence her fairness

and impartiality in the case.    The trial court refused to strike

Mason for cause.   We find no error in this decision.

     Juror Manning stated that she had heard about the incident

from her son, who works at Greensville Correctional Center, but

she did not recall the details of the conversation.     She stated

that what she heard would not influence her fairness and

impartiality.   The trial court refused to strike Manning for

cause.    We find no error in this decision.

     At trial, appellant asked the trial court to excuse jurors

Fields, Powell, Mason and Manning for cause because

"they have family or know somebody that works at Greensville or




                                 -3-
knows somebody that knows somebody that works at Greensville or

have direct contact with this officer here."

     Per se presumptions of juror bias are not favored in

Virginia.   See Webb v. Commonwealth, 11 Va. App. 220, 222, 397

S.E.2d 539, 540 (1990).   The grounds for automatic

disqualifications are few. 1   Employment by a juror at the

correctional facility where the accused is an inmate charged with

a crime against a correctional officer does not require automatic

disqualification of the juror.    See Williams v. Commonwealth, 21

Va. App. ___, ___, ___ S.E.2d ___, ___ (1996) (en banc).      Absent

the existence of a per se basis for exclusion, rulings on the

qualifications of jurors are committed to the sound discretion of

the trial court.   Barker v. Commonwealth, 230 Va. 370, 375, 337

S.E.2d 729, 733 (1985).

     An appellate court must defer to the trial court's decision

"to exclude or retain prospective jurors" because the trial court

has observed the jurors "and is in a better position" than the

appellate court to determine if a juror's performance would be

impaired.   Stewart v. Commonwealth, 245 Va. 222, 234, 427 S.E.2d

394, 402, cert. denied, 114 S. Ct. 143 (1993).    "Accordingly, a

trial court's decision on these issues will not be reversed on

appeal without a showing of 'manifest error.'"    Id. (quoting

     1
       See Barker v. Commonwealth, 230 Va. 370, 375, 337 S.E.2d
729, 733 (1985) (automatic disqualification required based on
juror's knowledge that defendant previously had been convicted
for same offense for which he was being retried); Gray v.
Commonwealth, 226 Va. 591, 593, 311 S.E.2d 409, 410 (1984)
(automatic disqualification required based on juror's kinship to
victim in case); Salina v. Commonwealth, 217 Va. 92, 93, 225
S.E.2d 199, 200 (1976) (automatic disqualification required based
on juror's stockholding in victim bank).




                                 -4-
Eaton v. Commonwealth, 240 Va. 236, 246, 397 S.E.2d 385, 391

(1990), cert. denied, 502 U.S. 824 (1991)).     See also Weeks v.

Commonwealth, 248 Va. 460, 475, 450 S.E.2d 379, 389 (1994), cert.

denied, 116 S. Ct. 100 (1995).

     Furthermore, prospective jurors need not be totally ignorant

of the facts and issues involved in a case.     It is sufficient

that they can set aside any impression or opinion and decide the

case solely on the evidence presented at trial.     Pope v.

Commonwealth, 234 Va. 114, 124, 360 S.E.2d 352, 358 (1987), cert.
denied, 485 U.S. 1015 (1988).    In denying appellant's challenge

to the jurors, the court stated that, based on the voir dire, the

court believed that the jurors in question could "take the oath"

of a juror and "act accordingly," if selected for jury service.

On this record, and giving due deference to the trial court's

observations and beliefs, we cannot say that the court committed

manifest error in denying appellant's requested strikes for

cause.
                     III. Consent Instruction

     Appellant also contends that the court erred in refusing his

proffered consent instruction.   Although the Commonwealth

prevailed in the trial court, we must review the evidence

relevant to appellant's refused instruction in the light most

favorable to him.   Martin v. Commonwealth, 13 Va. App. 524, 526,

414 S.E.2d 401, 401 (1992) (en banc).

     An accused, however, "is entitled to have the jury

instructed only on those theories of the case that are supported

by evidence."   Frye v. Commonwealth, 231 Va. 370, 388, 345 S.E.2d




                                 -5-
267, 280 (1986).    "The evidence relied on to support a proffered

instruction must amount to 'more than a scintilla.'"      Morse v.

Commonwealth, 17 Va. App. 627, 633, 440 S.E.2d 145, 149 (1994)

(quoting Hatcher v. Commonwealth, 218 Va. 811, 814, 241 S.E.2d

756, 758 (1978)).   An instruction inapplicable to the facts and

circumstances of the case should not be given.      Hubbard v.

Commonwealth, 243 Va. 1, 16, 413 S.E.2d 875, 883 (1992).

     Inmate Kenneth Jackson testified on behalf of appellant that

he heard appellant talking to Officer Coleman in the snack area.

Appellant came to him and asked him for one hundred dollars cash

"because he needed it because him and Ms. Coleman was supposed to

meet in the bathroom.   So, I gave him the money.    That's all I

know."   Jackson said it was supposed to be money for sex.       He

explained that the scratches on appellant's face and mouth

occurred while he and appellant were "horse playing."
     Appellant testified that he procured the money from Jackson

before he had spoken to Ms. Coleman about sex because he knew her

reputation. He described the incident as follows:
          I was waving to her and she looked. She
          noticed me. She came out. There's a door
          right here and she came out of the control
          booth and left the other officer there. She
          came to this door and popped it and we
          talked. At that point, I had some money on
          me and flashed it at her and stated to her
          what I wanted to do with the money. I mean,
          I didn't have to put into exact words because
          I know and she knows what's up.
               After we got that straight. She told me
          to hold on, I'll be right back. She shut the
          door and went back in the booth. So, I
          waited and waited. She come back out the
          door about five minutes later she come out
          and come on back there to where I was in the
          bathroom. Now, we're in the bathroom and I
          gave her the money that we had agreed on, a
          fifty-dollar bill, two twentys and a



                                 -6-
            ten. . . . She says to me, hold on, I got to
            go check because some inmates was in the
            visiting room. . . . She's talking about
            going and checking and I says, no, I done
            gave you my money so you just give me my
            money back and I'll leave. . . .
                 When she tried to leave out the
            bathroom, I grabbed her hand that she had my
            money in, that she had already took. I took
            the money back and opened the door and left
            and when I left the bathroom, she was still
            in the bathroom. . . .


Appellant presented no evidence that there was any attempt made

to perform any sexual acts.

     Under these facts, appellant contends that the trial court

erred in refusing to give his proffered consent instruction.      We

find no evidence in the record to support the giving of a consent

instruction.
     The issues raised by the Commonwealth's evidence are simple

ones; namely, whether appellant was guilty of attempted rape,

attempted sodomy, bodily injury, and willful injury to a

correctional facility employee.    Appellant denies that he did

these things.   His evidence does not suggest that the offenses

with which he was charged were commenced, much less completed.

His evidence does not show that he touched the correctional

officer in order to have consensual sex.   According to

appellant's testimony, as soon as he handed Coleman one hundred

dollars, she said she had to leave to check her post.

Appellant's only acts toward the victim, according to him, were

his attempts to retrieve his money from her hand.   Under

appellant's theory of the case, no sexual overtures or touching

occurred.   The trial court did not err in refusing a consent

instruction because there was no evidence to support it.



                                  -7-
Accordingly, the judgment of the trial court is affirmed.

                                   Affirmed.




                          -8-
BENTON, J., dissenting.



     For the reasons stated in the dissenting opinion to Williams

v. Commonwealth, ___ Va. App. ___, ___, ___ S.E.2d ___, ___

(1996) (Elder, J., and Benton, J., dissenting), I would hold that

the two jurors who were employed in the penitentiary were

disqualified from the jury because Langston was being tried for

an offense, willful injury to a correctional facility employee in

violation of Code § 18.2-55, that was unique in its protection of

correctional facility employees.     See Williams v. Commonwealth,

19 Va. App. 600, 453 S.E.2d 575 (1995), rev'd en banc, ___ Va.

App. ___, ___ S.E.2d ___ (1996).




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