                     COURT OF APPEALS OF VIRGINIA


Present: Judge Bray, Senior Judges Duff and Overton
Argued at Alexandria, Virginia


LAWRENCE P. MEDICI
                                           MEMORANDUM OPINION * BY
v.   Record No. 0527-98-4                   JUDGE RICHARD S. BRAY
                                                MAY 25, 1999
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                       David T. Stitt, Judge

          Jennifer A. Hess Smith, Assistant Public
          Defender, for appellant.

          Daniel J. Munroe, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     A jury convicted Lawrence P. Medici (defendant) of rape,

second or subsequent offense, sodomy by cunnilingus, second

offense, sodomy by fellatio, second or subsequent offense, and

attempted anal sodomy.     On appeal, defendant complains that the

trial court erroneously (1) permitted the Commonwealth to

introduce evidence of prior rape convictions, (2) refused to

permit a stipulation to such convictions, (3) denied a motion to

dismiss the indictment because it did not specify an offense,

(4) declined to strike two venirepersons for cause, (5) ruled

that Code § 18.2-67.5:3 was constitutional, (6) admitted


     *
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
evidence previously ruled inadmissible, and (7) found the

evidence sufficient to support the sodomy by cunnilingus

conviction.   Finding no error, we affirm the convictions.

     The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.

     The victim, Pauline Finn, was acquainted with defendant as

her supplier of illicit drugs.    On the evening of May 21, 1997,

defendant telephoned Finn and advised that “he had an amazing

amount of cocaine . . . and . . . [she] should come over.”   Finn

went to defendant’s home the following morning, was admitted by

defendant, and observed a mirror covered with white powder in

the basement area of the house.    As Finn scrutinized the white

substance, defendant ordered that she remove her clothing.   Finn

initially refused, but complied after noticing that defendant

was armed with a knife.   Defendant subsequently forced Finn to

engage in fellatio, cunnilingus, and sexual intercourse, and

attempted anal sodomy.    Finn immediately reported the incident

to her “high school guidance counselor,” and defendant was

subsequently charged and convicted for the instant offenses.

                                  I.

     Defendant first argues that, during the guilt phase of his

bifurcated trial, the trial court improperly admitted evidence

of prior rape convictions in California.



                                 - 2 -
          Although . . . evidence of other crimes is
          inadmissible if relevant only to show a
          probability of guilt or a propensity for
          criminal conduct, evidence of other crimes
          “is properly received if it is relevant and
          probative of an issue on trial, such as an
          element of the offense charged or the
          required predicate for enhanced punishment.”

Berry v. Commonwealth, 22 Va. App. 209, 213, 468 S.E.2d 685, 687

(1996) (quoting Pittman v. Commonwealth, 17 Va. App. 33, 35, 434

S.E.2d 694, 695 (1993)).   “A prior conviction is used for

‘sentence enhancement’ when it is admitted . . . during a trial

to convict a defendant of violating a ‘recidivist statute,’

i.e., a statute that criminalizes the commission of a successive

violation of a particular offense . . . .”   Harris v.

Commonwealth, 26 Va. App. 794, 803, 496 S.E.2d 165, 169 (1998)

(citations omitted).   “When sentence enhancement is an issue,

the Commonwealth has the burden of proving the existence of

defendant's prior, valid convictions . . . .”   Id.

     This Court has previously approved evidence of prior

convictions during the Commonwealth’s case-in-chief in

prosecutions under Code § 18.2-248 (second or subsequent offense

for manufacturing, selling, giving, distributing or possessing

with intent to manufacture, sell, give or distribute a

controlled substance), Code § 18.2-104 (second or subsequent

offense for misdemeanor larceny), and Code § 18.2-270 (second or

subsequent offense for driving while intoxicated).    See Berry,

22 Va. App. at 213-14, 468 S.E.2d at 687 (Code § 18.2-248);


                               - 3 -
Pittman, 17 Va. App. at 35, 434 S.E.2d at 695 (Code § 18.2-104);

Farmer v. Commonwealth, 10 Va. App. 175, 180-81, 390 S.E.2d 775,

777-78 (1990), aff’d en banc, 12 Va. App. 337, 404 S.E.2d 371

(1991) (Code § 18.2-270).

     Code § 18.2-67.5:3 prescribes an enhanced punishment for

subsequent convictions of certain felonious sexual assault

offenses, including rape.    Thus, evidence of a prior conviction

was necessary to prove the subject rape as a subsequent offense,

and, therefore, properly admitted during the guilt phase of

trial.   To protect defendant from any attendant prejudice, the

court appropriately instructed the jury not to consider the

prior convictions as evidence that defendant committed the

instant offense.

     Defendant further argues that the prior rape convictions

were inadmissible because the California statute is not

“substantially similar” to Code § 18.2-61.    See Code

§ 18.2-67.5:3 1 ; Cox v. Commonwealth, 13 Va. App. 328, 329-31, 411

S.E.2d 444, 445-46 (1991).   In support of his assertion, he

notes that Calf. Code § 261 criminalizes a range of conduct,

including acts that are not violations of Virginia law.

     The record discloses that the prior convictions in issue

resulted from rapes in violation of Calf. Code § 261(2), which

     1
      Code § 18.2-67.5:3(C) provides that, “[f]or purposes of
this section, prior convictions shall include (i) adult
convictions for felonies under the laws of any state or the
United States that are substantially similar to those listed in


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prohibits “an act of sexual intercourse accomplished with a

person not the spouse of the perpetrator, . . . (2) [w]here it

is accomplished against a person’s will by means of force or

fear of immediate and unlawful bodily injury on the person of

another.”   Virginia Code § 18.2-61 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 (i) against the complaining witness’s will, by

force, threat or intimidation of or against the complaining

witness or another person, . . . he or she shall be guilty of

rape.”

     We acknowledge that the Calf. Code § 261 proscribes acts

not embraced by Virginia’s statute; however, “‘only that

prohibition of the other state’s law under which the person was

convicted must substantially conform [to Code § 18.2-61].’”

Honaker v. Commonwealth, 19 Va. App. 682, 684, 454 S.E.2d 29, 30

(1995) (quoting Cox, 13 Va. App. at 331, 411 S.E.2d at 446).

Clearly, the specific California convictions before the court

resulted from violations of a statute that substantially

conforms to Code § 18.2-61, and, therefore, provided a proper

predicate to the instant conviction for rape as a second or

subsequent offense.




subsection B.”


                               - 5 -
     Defendant also argues that the prior rape convictions were

inadmissible because the attendant orders were not properly

authenticated.     In support of his contention, defendant relies

upon Carroll v. Commonwealth, which held an order not properly

authenticated because there was no evidence that the person

attesting was “authorized by law to act in the place of the

clerk.” 2    10 Va. App. 686, 691, 396 S.E.2d 137, 139 (1990).

     Here, defendant’s prior convictions carried a stamp:

“Allen Slater, Executive Officer and Clerk of the Superior Court

of the State of California, in and for the County of Orange.”

The order was impressed with the Orange County Superior Court

seal, and the signature of Flora L. Perez appears in a space

designated “Deputy.”     Thus, “‘it plainly can be gathered from

the . . . attestation . . . that [Ms. Perez] is the deputy clerk

of [Orange] county, authorized by law to act in place of [her]

principal,’” properly authenticating the document.        Id. at 690,

396 S.E.2d at 139-40 (quoting Hurley v. Charles, 112 Va. 706,

710, 72 S.E. 689, 690-91 (1911)).




     2
         In Carroll, the order contained the following:

                    A COPY TESTE:
                    WALTON F. MITCHELL, JR., CLERK
                    CRAIG COUNTY CIRCUIT COURT
                    BY /s/ Peggy B. Elmore

10 Va. App. at 688, 396 S.E.2d at 138.


                                 - 6 -
                                II.

     Defendant next complains that the trial court erred in

refusing to accept his offer to stipulate to the prior

convictions, if convicted, during the sentencing phase of trial.

However, it is well settled that the Commonwealth “is not

obliged to enter into an agreement whereby it is precluded from

putting on its evidence simply because the defendant is willing

to make a qualified stipulation.”      Glover v. Commonwealth, 3 Va.

App. 152, 162, 348 S.E.2d 434, 441 (1986), aff’d, 236 Va. 1, 372

S.E.2d 134 (1988); see Spencer v. Commonwealth, 240 Va. 78, 91,

393 S.E.2d 609, 617 (“A defendant in a criminal case may not

preclude the Commonwealth from introducing otherwise admissible

evidence by offering to stipulate the facts which the evidence

would show.”), cert. denied, 498 U.S. 908 (1990).

                               III.

     Defendant argues that the trial court erred in refusing to

set aside the verdict because the indictment failed “to set

forth a crime” in Virginia.   However, defendant first raised

this issue after the jury had rendered the verdict.     Defendant

was clearly apprised of the cause and nature of the offense,

raised a vigorous defense at trial, and fully addressed the

relevant issues.   However, defendant failed to challenge the

form or validity of the indictment, or any attendant defect or

omission, prior to verdict.   He, therefore, “waived his right to

be more fully advised of ‘the cause and nature of his

                               - 7 -
accusation,’” and the trial court did not err in denying the

motion.    McDougal v. Commonwealth, 212 Va. 547, 549, 186 S.E.2d

18, 20 (1972) (citation omitted).

                                 IV.

     Defendant next assigns error to the trial court’s refusal

to strike jurors Bennett and Lundquist for cause.

     “The right to a trial by an impartial jury is guaranteed

. . . .”    Gosling v. Commonwealth, 7 Va. App. 642, 645, 376

S.E.2d 541, 543 (1989) (citations omitted).   “Through voir dire

and other competent evidence, the trial court must examine the

venirepersons for signs of a mind set that would prevent or

substantially impair the performance of the duties of a juror in

accordance with his instructions and his oath.”     Swanson v.

Commonwealth, 18 Va. App. 182, 185, 442 S.E.2d 702, 704 (1994)

(citation and internal quotations omitted).

     “The partiality or impartiality of an individual juror is a

factual issue best determined by the trial court.”     Watkins v.

Commonwealth, 229 Va. 469, 480, 331 S.E.2d 422, 431 (1985)

(citation omitted), cert. denied, 475 U.S. 1099 (1986).

“Because the trial judge has the opportunity . . . to observe

and evaluate the apparent sincerity, conscientiousness,

intelligence, and demeanor of prospective jurors first hand, the

trial court’s exercise of judicial discretion in deciding

challenges for cause will not be disturbed on appeal,” absent

manifest error.    Pope v. Commonwealth, 234 Va. 114, 123-24, 360

                                - 8 -
S.E.2d 352, 358 (1987) (citation omitted), cert. denied, 485

U.S. 1015 (1988).   Thus, “we must consider the ‘voir dire as a

whole, . . .’ according the appropriate ‘deference to the trial

court’s decision.’”   Swanson, 18 Va. App. at 186, 442 S.E.2d at

704 (citations omitted).

     During voir dire, defense counsel inquired of the venire

“whether any of you, or your close friends, or relatives, have

been the victim of a crime.”   After Ms. Bennett responded that

her husband had been murdered, counsel proffered that the

suspect in the murder was represented by the Public Defender’s

Office, also counsel for defendant, and moved to strike her for

cause.

     However, in response to further inquiry by the

Commonwealth, Ms. Bennett assured that she could set aside

issues relating to the murder when hearing the evidence in the

instant prosecution, would not be influenced by the role of the

Public Defender, and could be fair and impartial, guided by the

evidence and instructions.   Noting that Ms. Bennett “was very

adamant that she could be objective in this case,” the court

denied defendant’s motion to strike her for cause, a decision

supported by the record.

     Mr. Lundquist, also challenged by defendant, responded

affirmatively on voir dire when defendant asked, “Do you think

that if you heard testimony from a Police Officer that you think

he would be more credible, or more believable, simply because he

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is a Police Officer?”   During further questioning, counsel read

a jury instruction to Mr. Lundquist, which addressed the jury’s

role in assessing “the facts, the credibility of the witnesses,

and the weight of the evidence,” and Mr. Lundquist responded,

“See, all that gobble-de-gook; the Police Officer would have

higher credibility, I suppose, based on his title and role,”

prompting counsel’s motion to strike Mr. Lundquist for cause.

However, when examined by the court to clarify his responses,

Mr. Lundquist explained that his comments simply recognized a

police officer as a “trained observer,” without attributing

greater “credibility” to such testimony.

     The trial court denied defendant’s motion to strike Mr.

Lundquist, commenting that,

          I think once we got the semantics
          straightened out about what we were talking
          about, I think he was talking about what
          Police Officers are trained observers, and
          he flat out said that he could put Police
          Officers and lay witnesses on an even
          footing in terms of credibility, and even
          thought that Police Officers could be
          untruthful.

     We recognize that, “[a]lthough jurors have a right and a

duty to determine the credibility of witnesses in a particular

case, giving unqualified credence to the testimony of a law

enforcement officer based solely on the officer’s official

status constitutes impermissible bias.”    Gosling, 7 Va. App. at

645, 376 S.E.2d at 544 (citing Mullis v. Commonwealth, 3 Va.

App. 564, 571, 351 S.E.2d 919, 923 (1987)).   Here, however, the

                              - 10 -
record, viewed in its entirety, clearly establishes that Mr.

Lundquist was a conscientious and attentive juror, fully aware

of his attendant duties and responsibilities and not predisposed

to give unqualified credence to the testimony of a law

enforcement officer.   Upon clarification, it became apparent

that Mr. Lundquist confused credibility and truthfulness with

the weight to be accorded testimony.   His responses confirmed

that he would properly consider the testimony of police officers

and lay witnesses “on an even footing.”   Thus, the trial court

did not abuse its discretion in denying the motion.

                                V.

     Defendant argues that the mandatory life sentence imposed

by Code § 18.2-67.5:3 is unconstitutional.

     “In assessing the constitutionality of a statute or

ordinance, courts must presume that the legislative action is

valid.   Consequently, the burden is on the challenger to

demonstrate the constitutional defect.”   Coleman v.

Commonwealth, 5 Va. App. 459, 462, 364 S.E.2d 239, 241 (citation

omitted), reh’g denied, 6 Va. App. 296, 368 S.E.2d 298 (1988).

The Commonwealth “is allowed discretion in formulating its own

legislative policies regarding the appropriate punishment for

offenses.”   Wolkind v. Selph, 473 F. Supp. 675, 679 (E.D. Va.

1979), aff’d, 649 F.2d 865 (4th Cir. 1981); see Rummel v.

Estelle, 445 U.S. 263, 274 (1980) (acknowledging reluctance to

review legislatively mandated terms of imprisonment).    “[O]nly

                              - 11 -
where the sentence petitioner has been required to serve is so

grossly disproportionate to the offense committed as to shock

the conscience of the Court will it be struck down as

unconstitutional.”     Wolkind, 473 F. Supp. at 679; see Harmelin

v. Michigan, 501 U.S. 957, 1001 (1991) (concurring opinion of

Kennedy, J.) (Eighth Amendment “forbids only extreme sentences

that are ‘grossly disproportionate’ to the crime”).

        The offenses specified in Code § 18.2-67.5:3 involve second

or subsequent offenses of violent sexual assault, including

rape.    We cannot conclude that the mandatory life sentence

imposed by Code § 18.2-67.5:3 for a second or subsequent

commission of such vile crimes is “grossly disproportionate” to

the offense.     See Harmelin, 501 U.S. at 994 (concluding that a

mandatory life sentence is not unconstitutionally

disproportionate to a first-time felony drug offense).

                                  VI.

        Defendant also argues that the trial court erroneously

admitted evidence of a taped conversation between defendant and

Finn, the victim, after ruling it inadmissible during a pretrial

motion in limine.     The Commonwealth counters that defendant

“opened the door” to the taped conversation by reference to it

on cross-examination of the victim.

        “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.”

                                - 12 -
Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842

(1988) (citation omitted).   “‘Cross-examination on a part of a

transaction enables the opposing party to elicit evidence on

redirect examination of the whole transaction at least to the

extent that it relates to the same subject.’”   Briley v.

Commonwealth, 221 Va. 532, 540, 273 S.E.2d 48, 53 (1980)

(citation omitted), cert. denied, 451 U.S. 1031 (1981); see

Lockhart v. Commonwealth, 251 Va. 184, 184, 466 S.E.2d 740, 740

(1996).

     Defense counsel asked Finn several questions pertaining to

her statements during the taped conversation, without explaining

the circumstances.   Defendant’s inquiries included:

          So, you weren’t angry when you said, “Well,
          then you must be pretty f--- up, that must
          be some good God damn good baking soda.
          Let’s see does it dissolve in any way shape
          or form? Tastes like absolutely nothing at
          all. It was chalk dust.” You weren’t mad
          when you said that?

Finn answered, “Of course I had to pretend like I was mad

because I couldn’t let him know that the cops were listening on

the phone.”   Clearly, defendant pursued such evidence to

discredit the victim, a circumstance that permitted the

Commonwealth to rebut with introduction of the tape itself.

     Defendant’s complaint that the evidence upset his defense

“strategy,” developed in reliance upon the court’s prior ruling

to exclude the tape, is without merit.   In answer to this

argument below, the trial court offered defendant the

                              - 13 -
opportunity to recall the victim and undertake further

examination of the witness, thereby remediating any prejudice to

defendant’s strategy.    Moreover, the tape was relevant and

material because defendant admitted certain acts subject to the

instant prosecution.

     Under such circumstances, the court correctly admitted the

tape into evidence.

                                 VII.

     Finally, defendant argues that the evidence was

insufficient to convict him of sodomy by cunnilingus, a

violation of Code § 18.2-67.1.    When the sufficiency of the

evidence is challenged on appeal, we must review the evidence in

the light most favorable to the Commonwealth, disturbing a

jury’s verdict only if plainly wrong or without evidence to

support it.     See Code § 8.01-680; Martin v. Commonwealth, 4 Va.

App. 438, 443, 358 S.E.2d 415, 418 (1987).

     “‘Penetration is an essential element of the crime of

sodomy[;]’ [h]owever, . . . the penetration ‘need only be

slight.’”     Horton v. Commonwealth, 255 Va. 606, 612, 499 S.E.2d

258, 261 (1998) (citations omitted).     “‘[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

establish the element of penetration.”     Moore v. Commonwealth,

                                - 14 -
254 Va. 184, 190, 491 S.E.2d 739, 742 (1997) (quoting Love v.

Commonwealth, 18 Va. App. 84, 88, 441 S.E.2d 709, 712 (1994)).

“‘Penetration of the vaginal opening . . . clearly [is] not

required.’”     Jett v. Commonwealth, 29 Va. App. 190, 195, 510

S.E.2d 747, 749 (1999) (en banc) (citation omitted) (alterations

in original).

     Evidence that defendant licked the victim’s vagina is

sufficient to establish penetration of the vulva or outermost

portion of the genitalia, an act of sodomy by cunnilingus in

violation of Code § 18.2-67.1.     See Horton, 255 Va. at 613-14,

499 S.E.2d at 261-62; Ryan v. Commonwealth, 219 Va. 439, 441,

444, 247 S.E.2d 698, 700, 702 (1978).    Finn testified that

defendant “started on [her,] . . . [when] [h]e put his mouth on

[her] vagina, [h]e was licking around and touching.”    Thus, her

testimony was sufficient to support defendant’s conviction for

sodomy by cunnilingus.

     Accordingly, we affirm the convictions.

                                                          Affirmed.




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