                     COURT OF APPEALS OF VIRGINIA


Present:   Chief Judge Fitzpatrick, Judges Coleman and Bumgardner


DAVID ALLEN HAYNES
                                           MEMORANDUM OPINION * BY
v.   Record No. 1778-98-3              JUDGE RUDOLPH BUMGARDNER, III
                                               OCTOBER 5, 1999
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF ALLEGHANY COUNTY
                     Duncan M. Byrd, Jr., Judge

           (James V. Doss, III, on brief), for
           appellant. Appellant submitting on brief.

           (Mark L. Earley, Attorney General; Richard B.
           Smith, Assistant Attorney General, on brief),
           for appellee. Appellee submitting on brief.


     David Allen Haynes appeals from his convictions of

unlawfully entering the property of another, sexual battery, and

attempted rape.   He concedes his guilt of unlawful entry and

sexual battery, but argues the trial court erred in convicting

him of attempted rape.     He contends that the evidence was

insufficient and that sexual battery is a lesser-included

offense of attempted rape and conviction of both crimes violates

his protections against double jeopardy.    Finding no error, we

affirm the conviction.

     On appeal, we "discard all evidence of the accused that

conflicts with that of the Commonwealth and regard as true all


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
credible evidence favorable to the Commonwealth and all fair

inferences reasonably deducible therefrom."      Lea v.

Commonwealth, 16 Va. App. 300, 303, 429 S.E.2d 477, 479 (1993).

        Haynes entered the victim's trailer shortly after 7:00 a.m.

and woke her.    The victim only knew the defendant's first name,

and he had never been to her trailer, was not expected, or

invited.    He was drinking, smelled of alcohol, and had a beer

bottle in his hand.    He approached the victim in her bedroom but

would not leave when she told him to leave.     The defendant

started kissing the victim and eventually he put his hand on her

shoulder while holding her wrist behind her back with his other

hand.    He touched her hair and face, then her leg underneath her

nightgown and moved his hand up her leg.     The victim testified:

"I knew he was going to try to take my panties off.       His hand

was on my vagina . . . inside of my panties . . . ."      She

grabbed his hand, pushed him as hard as she could, and ran into

the bathroom when he fell backwards.

        Inside the bathroom, the victim braced herself against the

door which had no lock.    As the defendant banged on the door, he

tried to get her to let him inside.      With anger in his voice, he

threatened "I'll just fuck you then," and hit the door so that

it hit the victim in the head.    The victim could see through a

slight opening that the defendant had taken off all his clothes.

        When the victim ran into the bathroom, she had been able

to grab a telephone, and while the defendant was trying to get

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in the bathroom, she called the police.   By the time they

arrived, the defendant had left, and his clothes and beer bottle

were gone.   The victim described her assailant, gave his first

name, and identified his picture in a photo lineup.    The

officers interviewed the defendant the next day.

     The defendant first claimed to have blacked out from

drinking and denied knowing anything about the incident.     A few

days later, he changed his story and said he had gone to the

trailer.   He claimed to have been having an affair with the

victim for a year, and that morning he was to get a ride to work

when "she kind of freaked out."   He denied touching her that

morning.

     The trial court's ruling will not be disturbed on appeal

unless plainly wrong or unsupported by the evidence.    See Martin

v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418

(1987).    The fact finder, who determines the credibility of the

witnesses and the weight accorded their testimony, may accept or

reject the testimony in whole or in part.    See Bridgeman v.

Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986).

The fact finder is also entitled to disbelieve the self-serving

testimony of the accused and to conclude that he is lying to

conceal his guilt.    See Speight v. Commonwealth, 4 Va. App. 83,

88, 354 S.E.2d 95, 98 (1987) (en banc).

     The defendant concedes that the evidence is sufficient to

support the conviction of sexual battery.    See Code § 18.2-67.4.

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He completed committing that crime when he touched the victim's

vagina as he held her hand behind her back.    Separate from those

actions, the defendant's acts after the victim escaped to the

bathroom constitute the attempted rape.

        "Attempted rape consists of 'the intent to engage in sexual

intercourse, and some direct yet ineffectual, act towards its

consummation.'"     Siquina v. Commonwealth, 28 Va. App. 694, 699,

508 S.E.2d 350, 353 (1998) (citation omitted).     See Code

§ 18.2-61(A).    Once the victim entered the bathroom, the

defendant continually banged and forced the door in an attempt

to get inside.    He disrobed and threatened to "fuck [her]."

Credible evidence established each element of the crime.

        All of the actions that proved the attempted rape were

separate and distinct from the actions that proved the sexual

battery.    The defendant could not have been twice convicted for

the same offense; under these facts, they were separate and

distinct offenses.     See Blockburger v. United States, 284 U.S.

299, 304 (1932).    Accordingly, we need not address the argument

that sexual battery is a lesser-included offense of attempted

rape.    We affirm the conviction of attempted rape.

                                                              Affirmed.




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