                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Annunziata and Senior Judge Coleman
Argued at Alexandria, Virginia


IRVING WILLIAM VANCE
                                            MEMORANDUM OPINION * BY
v.   Record No. 2450-00-4                  JUDGE SAM W. COLEMAN III
                                                JANUARY 29, 2002
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                    M. Langhorne Keith, Judge

          Todd G. Petit (Office of the Public Defender,
          on brief), for appellant.

          Leah A. Darron, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     Irving Vance was convicted of rape and abduction.     On appeal,

Vance contends the trial court erred by (1) failing to strike

juror Hansen for cause; (2) admitting certain testimony of

Detective Colligan; and (3) admitting into evidence the victim's

jogging pants.   Finding no reversible error, we affirm.

                              BACKGROUND

     Vance was indicted for rape and abduction.    At trial, the

victim testified that while she was jogging, Vance called to her

and made lewd comments.     A short time later, Vance approached

her and asked for her telephone number.     The victim ignored him


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
and continued running.    As the victim neared her residence,

Vance grabbed her and banged her face against a wall.     He tried

to cover the victim's mouth, but she was able to scream for

help.    Vance used a knife and gun to force the victim to a

secluded area behind a dumpster, where he raped her.

        Vance testified that he approached the victim with the

intention of asking her for her telephone number.    He said he

placed his hand over her mouth because she initially screamed.

According to Vance, the victim stopped screaming after he

indicated his purpose for approaching her.    Vance claimed they

talked a while, after which the victim agreed to go with him

across the street to have consensual sexual intercourse.

               REFUSAL TO STRIKE JUROR HANSEN FOR CAUSE

        During voir dire, prospective juror Hansen indicated that

he works with a "sexual assault prevention team" at the

University of Virginia.    Members of the team work with sexual

assault victims on campus, and they give presentations on how to

work with sexual assault victims.    Appellant's attorney engaged

in a lengthy colloquy with Hansen during which Hansen agreed

that he would be sympathetic toward a person making an

accusation of rape, but that he could be impartial in

considering the evidence.

        The trial court ruled that appellant failed to show that

Hansen could not "sit as an impartial juror."    The trial court

expressly noted "two instances" in which Hansen stated in

                                 - 2 -
response to non-leading questions that he could be impartial and

would not treat the victim's testimony any differently than any

other witness.

     An accused is constitutionally guaranteed the right to trial

by "an impartial jury."    U.S. Const. amends. VI, XIV; Va. Const.

art. I, § 8; see Code § 8.01-358; Rule 3A:14.   "Trial courts, as

the guardians of this fundamental right, have the duty to procure

an impartial jury."   Griffin v. Commonwealth, 19 Va. App. 619,

621, 454 S.E.2d 363, 364 (1995).

     "[W]e review a trial court's decision whether to strike a

prospective juror for cause for an abuse of discretion and that

ruling will not be disturbed on appeal unless it appears from

the record that the trial court's action constitutes manifest

error."   Cressell v. Commonwealth, 32 Va. App. 744, 755, 531

S.E.2d 1, 6 (2000).

           "The standard to be applied by the trial
           court in determining whether to retain a
           venireman on the jury panel is whether his
           answers during voir dire examination
           indicate to the court something that would
           prevent or substantially impair the
           performance of his duties as a juror in
           accordance with his instructions and his
           oath."

Moten v. Commonwealth, 14 Va. App. 956, 958, 420 S.E.2d 250, 251

(1992) (quoting Eaton v. Commonwealth, 240 Va. 236, 246, 397

S.E.2d 385, 391 (1990)).

     A review of the entire voir dire fails to show that the

trial court erred in refusing to strike Hansen for cause.

                                - 3 -
Hansen twice stated he could be impartial and explained what he

felt it means to be impartial.    He further stated that he could

apply the presumption of innocence and listen objectively to all

of the evidence despite his training and experience.     On this

record, the trial court did not abuse its discretion by refusing

to strike Hansen.

                    DETECTIVE COLLIGAN'S TESTIMONY

     The victim testified that she did not voluntarily accompany

Vance behind the dumpster or consent to have sexual intercourse

with him.    She also testified that she screamed several times

during the attack, but to no avail.

     Thereafter, the Commonwealth's attorney called Detective

Colligan as a witness.    Colligan previously patrolled the

neighborhood where the attack occurred.     He had maintained

weekly contact with the area and its residents after becoming a

detective.   The Commonwealth's attorney asked Colligan about the

character of the neighborhood in which the incident occurred and

the ethnic makeup of its residents.      Appellant objected to the

testimony on the grounds of relevance and undue prejudice.

     The prosecutor argued that the evidence was relevant to

explain why the victim's screams and calls for help may not have

been heeded.   The trial court ruled that the evidence "has some

relevance" and "it's not so prejudicial that it's outweighed by

the relevance."



                                 - 4 -
     Colligan then testified that "[i]t's a busy neighborhood as

far as calls for service are concerned."    He added that a large

majority of the residents in the area are Hispanic.

     "'Evidence is relevant if it tends to establish the

proposition for which it is offered.'"     Evans-Smith v.

Commonwealth, 5 Va. App. 188, 196, 361 S.E.2d 436, 441 (1987)

(citation omitted).   "'Upon finding that certain evidence is

relevant, the trial court is then required to employ a balancing

test to determine whether the prejudicial effect of the evidence

sought to be admitted is greater than its probative value.'"

Braxton v. Commonwealth, 26 Va. App. 176, 186, 493 S.E.2d 688,

692 (1997) (citations omitted).    On appeal, a trial court's

ruling that the probative value outweighs any incidental

prejudice will be reversed only on a clear showing of an abuse

of discretion.   See Ferrell v. Commonwealth, 11 Va. App. 380,

390, 399 S.E.2d 614, 620 (1990).

     Appellant was on trial for rape and abduction with intent

to defile.   To prove rape, the Commonwealth had to prove that

appellant "engag[ed] in sexual intercourse with the victim,

against her will, by force, threat, or intimidation."       Clifton

v. Commonwealth, 22 Va. App. 178, 184, 468 S.E.2d 155, 158

(1996) (emphasis added) (citing Code § 18.2-61(A)).    Based on

Vance's pretrial assertions that he and the victim engaged in

consensual intercourse and Vance's extensive cross-examination

challenging the victim's claims that she screamed in vain for

                               - 5 -
help, the Commonwealth undertook to explain through Colligan's

testimony why no one understood the victim's screams for help or

responded to her screams.    The Commonwealth argued that, because

numerous crimes are reported in the area, residents might be

accustomed to hearing screams or be reluctant to respond to

them.    Additionally, the Commonwealth suggested that the

predominantly Hispanic residents may not have understood the

victim's calls for help.

        Because the Commonwealth had the burden to prove that

sexual intercourse was accomplished against the victim's will

and because Vance maintained that the incident was consensual,

Colligan's testimony was relevant to the issue of whether the

sexual intercourse was consensual or accomplished against the

victim's will by force.    Colligan's testimony tended to provide

an explanation why no one responded to the screams and thereby

tended to rebut appellant's claim of consent.    We are not

persuaded by appellant's argument that the proof that the

neighborhood had a high incidence of "calls for service" was

irrelevant and prejudicial in that the jury might consider him

guilty by association.    The fact that the area experienced a

large number of reported crimes was not prejudicial and did not

tend to prove that Vance was guilty of rape merely because he

was in the neighborhood, as Vance contends.    Accordingly, the

trial court did not abuse its discretion by admitting the

evidence.

                                 - 6 -
                           THE JOGGING PANTS

        Appellant contends the trial court erred by admitting into

evidence the victim's jogging pants.     He argues the Commonwealth

failed to establish a "proper foundation and chain of custody"

in that the Commonwealth failed to prove that the jogging pants

were in the same condition as they were in following the alleged

sexual assault.    Secondly, appellant asserts that the evidence

failed to establish an unbroken chain of custody as to those

persons who handled the jogging pants from the time that the

victim relinquished them to the authorities until they were

admitted at trial.    Specifically, appellant contends that the

detective who introduced the pants at trial testified he

received them from the sexual assault nurse at Fairfax Hospital,

however, the nurse never testified as to how long she had the

pants, or what she did with them, or how she came to possess

them.    Thus, argues appellant, the jogging pants should not have

been admitted into evidence.

        At trial, the victim identified the jogging pants as those

she wore the night she was abducted and raped.    She testified

that she "came home . . . [and] changed from these gray pants to

another pair of gray sweatpants" and explained they "were

immediately taken by a police officer."    While the evidence does

not establish whether the detective who received the jogging

pants from the sexual assault nurse at the hospital was the same

officer the victim said received the pants at her house, in

                                 - 7 -
either event the evidence proves the detective received them on

the evening of the assault from the victim or in her presence

soon after the rape.

     No forensic evidence was introduced concerning the jogging

pants.   Although no witness testified about grass stains on the

jogging pants, apparently two small grass stains were on the

pants.   The Commonwealth's attorney made no comment about the

grass stains and made no argument that grass stains on the

jogging pants were evidence of a forcible rape rather than

consensual sexual intercourse.    No evidence established that the

stain was relevant to this incident.     Defense counsel, during

closing argument, made the only comment about grass stains on

the jogging pants, arguing that the presence of "only two small

grass stains" was consistent with consensual sex where the pants

evidenced no rips, tears or large stains as would be expected

with a violent assault.   In rebuttal to that argument, the

Commonwealth's attorney's sole comment and argument concerning

the jogging pants was related to an explanation about how the

rape could have been accomplished by only partially removing the

"very small" jogging pants.

     "[T]he chain-of-custody standard announced in Robinson [v.

Commonwealth, 212 Va. 136, 183 S.E.2d 179 (1971),] does not

necessarily apply to a physical exhibit offered as demonstrative

evidence as distinguished from an exhibit offered as a basis for

a chemical analysis or the opinion testimony of an expert

                                 - 8 -
witness."    Jones v. Commonwealth, 228 Va. 427, 442, 323 S.E.2d

554, 562 (1984).    In a strikingly similar case, the Supreme

Court said in Whaley v. Commonwealth, 214 Va. 353, 357, 200

S.E.2d 556, 559 (1973), that when "the article of clothing . . .

in question, having been identified by the victim, had been

admitted in evidence only to establish what [the victim] was

wearing when she was attacked, there would have been no error in

their admission."   In Whaley, also an appeal from a rape

conviction, the trial court admitted into evidence a pair of

undershorts taken from the defendant which contained red smears

that appeared to be blood.   There the Commonwealth did not seek

to introduce a chemical or other technical analysis to prove

that the smears on the defendant's undershorts were the victim's

blood.   The Commonwealth in Whaley did not have each person who

had handled the undershorts testify to the chain of custody.

Rather, the officer who received the shorts from the defendant

merely identified them as having been received from the

defendant.   The Court held that the undershorts were

sufficiently identified as those worn by the defendant at the

time of the assault to be admitted into evidence.   When the

relevance of the evidence is solely to prove that the item of

clothing is the same item worn by either the victim or the

defendant at the time of the attack, and not for the foundation

of introducing into evidence a chemical analysis, the



                                - 9 -
Commonwealth need only establish that the item of clothing is

the same and that it is substantially in an unchanged condition.

     Here, the victim identified the jogging pants as the ones

she wore that night.   Those pants were a physical exhibit

offered as demonstrative evidence for that limited purpose

rather than as the basis for scientific or expert evidence.      Cf.

Jones, 228 Va. at 442, 323 S.E.2d at 562.    "The [pants] were

admitted in evidence to show that they were worn . . . at the

time the rape was committed."    Whaley, 214 Va. at 357, 200

S.E.2d at 559.   The Commonwealth's attorney did not argue that

the grass stains or condition of the jogging pants proved a

forcible rape.   He only argued about the relationship of the

pants to the underpants and the ease of removing the underpants.

The implication from the victim's and detective's testimonies is

that the jogging pants were in a "substantially unchanged

condition when admitted at trial and when delivered to the

detective.

     On the other hand, defense counsel argued the small grass

stains on the jogging pants without tears or significant

additional stains tended to prove that the intercourse was

consensual rather than forcible.    Thus, appellant has failed to

establish how he was prejudiced by the admission of this

demonstrative evidence.   See Clagett v. Commonwealth, 252 Va.

79, 91, 472 S.E.2d 263, 270 (1996) (requiring a showing of



                                - 10 -
prejudice for erroneously admitted evidence to be deemed not

harmless).

     For the foregoing reasons, the judgment of the trial court is

affirmed.

                                                        Affirmed.




                              - 11 -
