COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Bray and Overton 

Argued at Norfolk, Virginia 

DUWON MAURICE JACOBS 

 MEMORANDUM OPINION* BY 

v. Record No. 1741-95-1 JUDGE RICHARD S. BRAY 

 FEBRUARY 4, 1997 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH 

Von L. Piersall, Jr., Judge 

 Dianne G. Ringer, Senior Assistant Public 

Defender, for appellant. 

 Kimberley A. Whittle, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Duwon Maurice Jacobs (defendant) was convicted in a jury 

trial of attempted rape and forcible sodomy and sentenced to 

eight and twenty-five years, respectively. On appeal, he 

complains that the court erroneously denied his motion for a 

mistrial arising from improper argument by the Commonwealth to 

the jury and did not adequately instruct the jury to ignore the 

comments. We disagree and 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. 

 "When a motion for mistrial is made, based upon an allegedly 

prejudicial event, the trial court must make an initial factual 

determination, in the light of all the circumstances of the case, 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
- 2 - 

whether the defendant's rights are so 'indelibly prejudiced' as 

to necessitate a new trial." Spencer v. Commonwealth, 240 Va. 

78, 95, 393 S.E.2d 609, 619 (1990), cert. denied, 498 U.S. 908 

(1991). "A trial court's ruling will be permitted to stand 

unless it is made to appear probable that the party complaining 

has been substantially prejudiced by the objectionable remarks or 

arguments." Martinez v. Commonwealth, 10 Va. App. 664, 669, 395 

S.E.2d 467, 470 (1990), aff'd as modified, 241 Va. 557, 403 

S.E.2d 358 (1991). Whether to grant a mistrial rests within the 

sound discretion of the trial judge, and, "absent a showing of 

abuse of discretion, the court's ruling will not be disturbed on 

appeal." Cheng v. Commonwealth, 240 Va. 26, 40, 393 S.E.2d 599, 

607 (1990). 

 The prosecutor appropriately may "refer to the evidence and 

fair inferences from it . . . both with respect to the guilt of 

the accused and a proper measure of punishment." Martinez, 10 

Va. App. at 672, 395 S.E.2d at 472 (quoting Timmons v. 

Commonwealth, 204 Va. 205, 217, 129 S.E.2d 697, 705 (1963)). The 

prosecutor also may "ask a jury to fix a punishment in a 

particular case that will deter others from committing like 

offenses" as long as it does "not appeal . . . to the jurors' 

passions by exciting their personal interests in protecting the 

safety and security of their own lives and property." Hutchins 

v. Commonwealth, 220 Va. 17, 20, 255 S.E.2d 459, 461 (1979). 

"Whether the words used were prejudicial must be judged by a 
- 3 - 

review of the totality of the evidence." Fain v. Commonwealth, 7 

Va. App. 626, 629, 376 S.E.2d 539, 541 (1989). 

 Here, the victim testified that she struck defendant in the 

genitals in order to thwart the attack. Her testimony was 

competent, credible, and corroborated by defendant's statement to 

police shortly after the assault that his genitals "hurt[]." 

During the sentencing phase of trial, the prosecutor argued, 

"[Y]ou twelve [jurors] have to decide . . . what is the best way 

. . . to let Mr. Jacobs know that what he did was . . . wrong 

 . . . . Just try and remember Lorean [, the victim]. Do what's 

right for her. She fought back the best way she could. Carry on 

her fight for her now." 

 Viewing the evidence as a whole, we cannot find it likely 

that defendant was prejudiced by the prosecutor's plea that the 

jury "carry on" the victim's fight.1 This conclusion finds 

further support in a curative instruction by the court reminding 

the jury that "comments made by the attorneys is [sic] argument," 

that they should "follow the instructions . . . keep[ing] in mind 

the evidence." LeVasseur v. Commonwealth, 225 Va. 564, 589, 304 

S.E.2d 644, 657 (1983) ("Unless the record shows the contrary, it 

is to be presumed that the jury followed an explicit cautionary 

instruction promptly given."), cert. denied, 464 U.S. 1063 

(1984). Although defendant argued that the instruction was not 

 

 1We also note that the jury sentences for both offenses were 

less than the maximums prescribed by the applicable statutes. 
- 4 - 

sufficiently specific, the court reasoned that greater detail 

would have needlessly emphasized the comments. We agree. 

 Accordingly, the convictions are affirmed. 

 Affirmed.