                    COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Humphreys and Retired Judge Kulp ∗
Argued at Richmond, Virginia


DANIEL WADE INGE
                                           MEMORANDUM OPINION ∗∗ BY
v.   Record No. 1628-98-2                JUDGE JAMES W. BENTON, JR.
                                                JUNE 20, 2000
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                    William R. Shelton, Judge

          David B. Hargett (Joseph D. Morrissey;
          Morrissey & Hershner, PLC, on brief), for
          appellant.

          Linwood T. Wells, Jr., Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     A jury convicted Daniel Wade Inge of rape.    See Code

§ 18.2-61(A).    He contends the evidence was insufficient to

support the conviction.    We disagree and affirm the conviction.

     The complaining witness testified that she went to a hotel

room at night with her friend Christa Rosenberg to watch a fight

on television.   When they arrived, Inge, who was Rosenberg's

boyfriend, and Jason Matthews were in the room.    The complaining


     ∗
       Retired Judge James E. Kulp took part in the consideration
of this case by designation pursuant to Code § 17.1-400,
recodifying Code § 17-116.01.
     ∗∗
       Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
witness, who was eighteen years old, drank one or two bottles of

beer that she brought to the room.      She also drank "a pretty good

amount" of whiskey, estimating "probably six or seven" cups of

whiskey in two and a half hours.    All four of them were drinking

alcoholic beverages.

     During the evening, the complaining witness became ill from

alcohol consumption and vomited.    While the complaining witness

was lying on the bed and vomiting, Rosenberg said that she had to

leave because her mother paged her.      The complaining witness

testified that she asked Rosenberg to stay and that she did not

remember when Rosenberg left.   After someone instructed her to

remove her shirt because she had vomited on it, she could not

remember anything else until she woke and realized that Inge "had

[her] hand on his penis."   After she pulled her hand away, Inge

"tried to get [her] to get on top of him."      She testified that she

was unable to do so because she "couldn't move."     Inge then turned

her onto her stomach and began having sexual intercourse with her.

She testified that she did not physically resist because she was

unable to move and "didn't know what to do."     She testified,

however, that she told him:   "I don't want to get pregnant"; "I

didn't want to do it" and "I wanted to go home."     She also

testified that she was "in and out [of consciousness]" and did not

know what was happening to her.    She recalled that Matthews "was

on the bed beside [them] passed out."



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     After the sexual intercourse ceased, she got off the bed and

fell, hitting her head on a bureau.    She then attempted to make a

phone call, but Inge took the phone and instructed her to give him

the number that she wished to call.    Inge dialed a number and

reported to her that no one answered.    When she again attempted to

use the phone, Inge unplugged it.   After she dressed, Inge drove

her home.

     When she arrived home, she called her boyfriend and her

sister.   Her sister arrived at her house and called the police.

The nurse who examined the complaining witness that night at the

hospital testified that she had no bruising or scratches on her

outward body.   The nurse did find, however, that the complaining

witness had some "light reddened abrasions on both labia majora."

She testified those were consistent with the complaining witness'

account but also consistent with some acts of consensual

intercourse.

     Rosenberg testified that when she left to go home, the

complaining witness was still fully awake and conscious and "waved

good bye" to her.   She testified that the complaining witness had

vomited but was able to engage in conversation.   The day after

these events, Inge told her it was Matthews who had sexual

intercourse with the complaining witness.

     Matthews testified that during that evening the complaining

witness "laid on top of [him] . . . and fondled [him]."    When the

complaining witness vomited, he removed her shirt because it was

                               - 3 -
soiled and rinsed it.   He testified that, aside from being sick,

she was coherent.   He also testified that he declined an offer of

oral sex from the complaining witness.   He testified that he went

to sleep on the bed, later woke, and saw the complaining witness

"on top of [Inge]" having sexual intercourse.    Matthews said he

"was pretty much out of it . . . and went right back to sleep."

     A detective testified that when he interviewed Inge, Inge

denied having "sex" with the complaining witness and said Matthews

"had sex with [her]."   Later, after having been given Miranda

warnings, Inge said he, Matthews, and the complaining witness

engaged in a drinking contest, which caused her to get sick.     Inge

said he had "consensual sex" with the complaining witness after

Matthews went to sleep.   Inge recounted that she rolled over,

mounted him, and engaged in intercourse.   He said Matthews woke up

and smiled as this was occurring.    Inge said he then "rolled her

over onto her stomach" and continued to have sexual intercourse.

Inge also told the detective that Matthews "had said he would

. . . cover for [Inge] if [Rosenberg] had ever found out that they

. . . had had consensual sex."

     In Inge's defense, a man testified that when he was dating

the complaining witness she flirted with Inge.    Rosenberg also

testified again and said the complaining witness offered to

perform oral sex on Matthews if he took "a triple shot" of

whiskey.   She also testified that the complaining witness later

"crawled up in [Matthews'] lap."

                                 - 4 -
     Inge testified that the complaining witness asked him to have

sexual intercourse with her.   Inge testified that he did not force

the complaining witness to have sexual intercourse with him, did

not threaten her, and did not intimidate her in any way.   He also

testified that during the sexual intercourse, she was able to move

and, contrary to her testimony, was on top of him.   Inge testified

that she never said "stop" or "no" during the sexual intercourse.

He further testified that Matthews had agreed to tell Rosenberg

that Matthews had "had sex with [the complaining witness]."

     On this evidence, the jury convicted Inge of rape.

                                II.

     In pertinent part, Code § 18.2-61 provides as follows:

          A. If any person has sexual intercourse
          with a complaining witness who is not his or
          her spouse or causes a complaining witness,
          whether or not his or her spouse, to engage
          in sexual intercourse with any other person
          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, or
          (ii) through the use of the complaining
          witness's mental incapacity or physical
          helplessness, or (iii) with a child under
          age thirteen as the victim, he or she shall
          be guilty of rape.

     When, as in this case, the evidence contains conflicting

testimony, "the jury . . . [must] determine the credibility of

the witnesses, by 'weighing such factors as the appearance and

manner of the witness on the stand, their intelligence, their

opportunity for knowing the truth and observing the things about


                               - 5 -
which they testify, their interest in the outcome of the case,

their bias, and if any had been shown, their prior inconsistent

statements.'"   Love v. Commonwealth, 18 Va. App. 84, 89-90, 441

S.E.2d 709, 713 (1994) (citation omitted).   Therefore, when an

issue is raised on appeal concerning the sufficiency of the

evidence, we review the evidence in the light most favorable to

the Commonwealth, granting to that evidence all reasonable

inferences fairly deducible therefrom.   See Higginbotham v.

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).

     Viewed in the light of these principles, the evidence was

sufficient for the jury to find beyond a reasonable doubt that

the complaining witness' version of the events was credible.

Although the record contains extensive conflicting evidence, the

jury decided those factual questions adversely to Inge.     Indeed,

the complaining witness' testimony alone, if believed by the

jury, was sufficient to support the conviction.   See Snyder v.

Commonwealth, 220 Va. 792, 796, 263 S.E.2d 55, 57 (1980); Love,

18 Va. App. at 90, 441 S.E.2d at 713.

     The evidence as presented by the complaining witness

established that, when she was inebriated and unable to move,

Inge tried to put her on top of him, then turned her onto her

stomach, and had sexual intercourse with her.   From this

evidence, the jury could find beyond a reasonable doubt the

element of force necessary to support the conviction.



                               - 6 -
            To determine whether the element of force
            has been proved in the crimes of
            non-statutory rape and sodomy by force, the
            inquiry is whether the act or acts were
            effected with or without the victim's
            consent. The issue is: Was the victim
            willing or unwilling? In that connection,
            there must be evidence of "some array or
            show of force in form sufficient to overcome
            resistance, but the woman is not required to
            resist to the utmost of her physical
            strength, if she reasonably believes
            resistance would be useless and result in
            serious bodily injury to her." And the
            amount of resistance which may be required
            necessarily depends on the circumstances of
            each case, taking into consideration the
            relative physical condition of the
            participants and the degree of force
            manifested. Indeed, this court has said
            that "no positive resistance" by the victim
            need be demonstrated if it appears that the
            crime was effected without her consent.

Jones v. Commonwealth, 219 Va. 983, 986, 252 S.E.2d 370, 372

(1979).

     Inge testified that he engaged in sexual intercourse with

the complaining witness but contends that it was consensual.

The complaining witness testified, however, that when these

events were occurring, she "said I didn't want to . . . [,] said

I didn't want to get pregnant . . . [, and] said I wanted to go

home."    That evidence, believed by the jury, was sufficient to

prove beyond a reasonable doubt that the sexual intercourse was

committed against her will and without her consent.




                                - 7 -
     Accordingly, we hold that the evidence was sufficient to

prove the elements of rape, and we affirm the conviction.

                                             Affirmed.




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