COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Senior Judge Cole 

Argued at Richmond, Virginia 

THOMAS LANGSTON 

v. Record No. 1946-94-2 MEMORANDUM OPINION* BY 

 JUDGE MARVIN F. COLE 

COMMONWEALTH OF VIRGINIA MARCH 12, 1996 

FROM THE CIRCUIT COURT OF GREENSVILLE COUNTY 

Robert G. O'Hara, Jr., Judge 

 H. Lee Townsend, III (Townsend & Bloom, 

P.L.L.C., on brief), for appellant. 

 Thomas D. Bagwell, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 

 Thomas Langston (appellant) was convicted of attempted rape, 

attempted sodomy, and willful injury to a correctional facility 

employee in a jury trial. On appeal, appellant contends that the 

trial court erred in (1) refusing to remove jurors Fields, 

Powell, Mason and Manning for cause, and (2) refusing to give the 

jury his proffered consent instruction. Finding no error, we 

affirm. 

 I. FACTS

 On March 17, 1993, Linda Coleman, a correctional officer at 

Greensville Correctional Center (GCC), went to the visiting room 

to get a soda. She saw appellant, an inmate, in the room and 

thought it unusual for him to be there. She went to press the 

intercom button to report him, but appellant, from behind, 

dragged her into the men's rest room. 

 

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

designated for publication. 
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 In the rest room, appellant sat on Coleman's stomach and 

told her that he was going to sodomize her. Coleman began to hit 

appellant with her fists. Appellant then said he was going to 

have sexual intercourse with her. Coleman fought again. 

Appellant tried to remove Coleman's pants and she struggled with 

him. Coleman grabbed appellant's genitals and wrung them. 

Appellant jumped off of her. He told her to kiss him and she 

refused. Appellant left the rest room and told Coleman that if 

she told anyone what happened, he would say that she had "come 

on" to him. 

 Coleman was treated for wounds to her lips, gums, and arm. 

She suffered high blood pressure, which caused a mild stroke in 

her eye, and she missed five months from work. Appellant 

suffered scratches to his face during the attack. 

II. Exclusion of Jurors for Cause

 During voir dire, juror Fields stated that he was acquainted 

with Coleman. Fields had purchased a car from a dealership where 

Coleman had worked. Fields stated that these contacts would not 

influence his fairness or impartiality to serve on the jury. 

 The fact that juror Fields was acquainted with Coleman was 

not a basis for his exclusion for cause. Neither was the fact 

that Fields purchased a car from a dealership where Coleman had 

worked, there being nothing in the record to show that Coleman 

had anything to do with the transaction. The trial court found 

Fields to be impartial and free from prejudice. We find no error 

in this holding. 

 On brief, appellant argues that Fields should have been 
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removed from the jury because he previously had been represented 

by the prosecutor in the case. However, appellant did not make 

this argument in the trial court and thus is barred by Rule 5A:18 

from raising the issue for the first time on appeal. See Jacques 

v. Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 

(1991). 

 The record indicates that juror Powell was employed by the 

Greensville Correctional Center and knew Coleman only on a 

speaking basis. Juror Powell stated that these facts would in no 

way influence her in her decision. The trial court found Powell 

to be impartial and we find no error in this decision. 

 Juror Mason stated that she knew the victim through her 

employment at Greensville Correctional Center. They did not 

socialize or visit each other's homes. Mason ran a store, and 

the victim, Linda Coleman, was a customer of the store. She 

stated that these relationships would not influence her fairness 

and impartiality in the case. The trial court refused to strike 

Mason for cause. We find no error in this decision. 

 Juror Manning stated that she had heard about the incident 

from her son, who works at Greensville Correctional Center, but 

she did not recall the details of the conversation. She stated 

that what she heard would not influence her fairness and 

impartiality. The trial court refused to strike Manning for 

cause. We find no error in this decision. 

 At trial, appellant asked the trial court to excuse jurors 

Fields, Powell, Mason and Manning for cause because 

"they have family or know somebody that works at Greensville or 
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knows somebody that knows somebody that works at Greensville or 

have direct contact with this officer here." 

Per se presumptions of juror bias are not favored in 

Virginia. See Webb v. Commonwealth, 11 Va. App. 220, 222, 397 

S.E.2d 539, 540 (1990). The grounds for automatic 

disqualifications are few.1 Employment by a juror at the 

correctional facility where the accused is an inmate charged with 

a crime against a correctional officer does not require automatic 

disqualification of the juror. See Williams v. Commonwealth, 21 

Va. App. ___, ___, ___ S.E.2d ___, ___ (1996) (en banc). Absent 

the existence of a per se basis for exclusion, rulings on the 

qualifications of jurors are committed to the sound discretion of 

the trial court. Barker v. Commonwealth, 230 Va. 370, 375, 337 

S.E.2d 729, 733 (1985). 

 An appellate court must defer to the trial court's decision 

"to exclude or retain prospective jurors" because the trial court 

has observed the jurors "and is in a better position" than the 

appellate court to determine if a juror's performance would be 

impaired. Stewart v. Commonwealth, 245 Va. 222, 234, 427 S.E.2d 

394, 402, cert. denied, 114 S. Ct. 143 (1993). "Accordingly, a 

trial court's decision on these issues will not be reversed on 

appeal without a showing of 'manifest error.'" Id. (quoting 

 

 1See Barker v. Commonwealth, 230 Va. 370, 375, 337 S.E.2d 

729, 733 (1985) (automatic disqualification required based on 

juror's knowledge that defendant previously had been convicted 

for same offense for which he was being retried); Gray v. 

Commonwealth, 226 Va. 591, 593, 311 S.E.2d 409, 410 (1984) 

(automatic disqualification required based on juror's kinship to 

victim in case); Salina v. Commonwealth, 217 Va. 92, 93, 225 

S.E.2d 199, 200 (1976) (automatic disqualification required based 

on juror's stockholding in victim bank). 
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Eaton v. Commonwealth, 240 Va. 236, 246, 397 S.E.2d 385, 391 

(1990), cert. denied, 502 U.S. 824 (1991)). See also Weeks v. 

Commonwealth, 248 Va. 460, 475, 450 S.E.2d 379, 389 (1994), cert. 

denied, 116 S. Ct. 100 (1995). 

 Furthermore, prospective jurors need not be totally ignorant 

of the facts and issues involved in a case. It is sufficient 

that they can set aside any impression or opinion and decide the 

case solely on the evidence presented at trial. Pope v. 

Commonwealth, 234 Va. 114, 124, 360 S.E.2d 352, 358 (1987), cert. 

denied, 485 U.S. 1015 (1988). In denying appellant's challenge 

to the jurors, the court stated that, based on the voir dire, the 

court believed that the jurors in question could "take the oath" 

of a juror and "act accordingly," if selected for jury service. 

On this record, and giving due deference to the trial court's 

observations and beliefs, we cannot say that the court committed 

manifest error in denying appellant's requested strikes for 

cause. 

III. Consent Instruction

 Appellant also contends that the court erred in refusing his 

proffered consent instruction. Although the Commonwealth 

prevailed in the trial court, we must review the evidence 

relevant to appellant's refused instruction in the light most 

favorable to him. Martin v. Commonwealth, 13 Va. App. 524, 526, 

414 S.E.2d 401, 401 (1992) (en banc). 

 An accused, however, "is entitled to have the jury 

instructed only on those theories of the case that are supported 

by evidence." Frye v. Commonwealth, 231 Va. 370, 388, 345 S.E.2d 
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267, 280 (1986). "The evidence relied on to support a proffered 

instruction must amount to 'more than a scintilla.'" Morse v. 

Commonwealth, 17 Va. App. 627, 633, 440 S.E.2d 145, 149 (1994) 

(quoting Hatcher v. Commonwealth, 218 Va. 811, 814, 241 S.E.2d 

756, 758 (1978)). An instruction inapplicable to the facts and 

circumstances of the case should not be given. Hubbard v. 

Commonwealth, 243 Va. 1, 16, 413 S.E.2d 875, 883 (1992). 

 Inmate Kenneth Jackson testified on behalf of appellant that 

he heard appellant talking to Officer Coleman in the snack area. 

 Appellant came to him and asked him for one hundred dollars cash 

"because he needed it because him and Ms. Coleman was supposed to 

meet in the bathroom. So, I gave him the money. That's all I 

know." Jackson said it was supposed to be money for sex. He 

explained that the scratches on appellant's face and mouth 

occurred while he and appellant were "horse playing." 

 Appellant testified that he procured the money from Jackson 

before he had spoken to Ms. Coleman about sex because he knew her 

reputation. He described the incident as follows: 

 I was waving to her and she looked. She 

noticed me. She came out. There's a door 

right here and she came out of the control 

booth and left the other officer there. She 

came to this door and popped it and we 

talked. At that point, I had some money on 

me and flashed it at her and stated to her 

what I wanted to do with the money. I mean, 

I didn't have to put into exact words because 

I know and she knows what's up. 

 After we got that straight. She told me 

to hold on, I'll be right back. She shut the 

door and went back in the booth. So, I 

waited and waited. She come back out the 

door about five minutes later she come out 

and come on back there to where I was in the 

bathroom. Now, we're in the bathroom and I 

gave her the money that we had agreed on, a 

fifty-dollar bill, two twentys and a 
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ten. . . . She says to me, hold on, I got to 

go check because some inmates was in the 

visiting room. . . . She's talking about 

going and checking and I says, no, I done 

gave you my money so you just give me my 

money back and I'll leave. . . . 

 When she tried to leave out the 

bathroom, I grabbed her hand that she had my 

money in, that she had already took. I took 

the money back and opened the door and left 

and when I left the bathroom, she was still 

in the bathroom. . . . 

Appellant presented no evidence that there was any attempt made 

to perform any sexual acts. 

 Under these facts, appellant contends that the trial court 

erred in refusing to give his proffered consent instruction. We 

find no evidence in the record to support the giving of a consent 

instruction. 

 The issues raised by the Commonwealth's evidence are simple 

ones; namely, whether appellant was guilty of attempted rape, 

attempted sodomy, bodily injury, and willful injury to a 

correctional facility employee. Appellant denies that he did 

these things. His evidence does not suggest that the offenses 

with which he was charged were commenced, much less completed. 

His evidence does not show that he touched the correctional 

officer in order to have consensual sex. According to 

appellant's testimony, as soon as he handed Coleman one hundred 

dollars, she said she had to leave to check her post. 

Appellant's only acts toward the victim, according to him, were 

his attempts to retrieve his money from her hand. Under 

appellant's theory of the case, no sexual overtures or touching 

occurred. The trial court did not err in refusing a consent 

instruction because there was no evidence to support it. 
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 Accordingly, the judgment of the trial court is affirmed. 

 Affirmed.
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BENTON, J., dissenting. 

 For the reasons stated in the dissenting opinion to Williams 

v. Commonwealth, ___ Va. App. ___, ___, ___ S.E.2d ___, ___ 

(1996) (Elder, J., and Benton, J., dissenting), I would hold that 

the two jurors who were employed in the penitentiary were 

disqualified from the jury because Langston was being tried for 

an offense, willful injury to a correctional facility employee in 

violation of Code § 18.2-55, that was unique in its protection of 

correctional facility employees. See Williams v. Commonwealth, 

19 Va. App. 600, 453 S.E.2d 575 (1995), rev'd en banc, ___ Va. 

App. ___, ___ S.E.2d ___ (1996).