COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Annunziata and Senior Judge Cole 

Argued at Richmond, Virginia 

KEHINDE A. OGUNGBADE 

 MEMORANDUM OPINION* BY 

v. Record No. 0991-97-2 JUDGE ROSEMARIE ANNUNZIATA 

 MAY 26, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

William R. Shelton, Judge 

 Andrea C. Long (Boone, Beale, Cosby & Long, 

on brief), for appellant. 

 Leah A. Darron, Assistant Attorney General 

(Richard Cullen, Attorney General, on brief), 

for appellee. 

 The appellant, Kehinde "Kenny" Ogungbade, appeals his 

conviction of sexual battery in violation of Code § 18.2-67.4. 

Appellant cites as error the trial court's refusal to give his 

proffered jury instruction on consent. He further claims the 

evidence was insufficient to support his conviction. We 

disagree, and affirm. 

 Appellant was manager of a Crown service station and 

convenience store in Chesterfield County, Virginia. The 

complainant was one of his employees, and, at the time of the 

incident, was assistant manager. 

 On July 4, 1996, complainant worked the second shift, 

beginning at 2:00 p.m. and ending at 10:00 p.m. Before leaving 

 

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

designated for publication. 
 2 

work, complainant was responsible for counting the money received 

from sales during her shift. She accordingly went into the 

office located at the back of the store to complete the task. As 

she sat at a desk facing away from the door to count the money, 

appellant entered the office and shut the door. While 

complainant was in the office with appellant, a woman knocked on 

the office door, and conversed briefly with appellant. 

Complainant denied that appellant opened the door to speak with 

the woman. 

 After the woman knocked on the door, appellant remained in 

the office between fifteen and twenty minutes. Appellant walked 

up behind complainant, reached around her, and began fondling her 

breasts and trying to open her blouse. Complainant moved her 

arms upward to remove the appellant's hand from her breasts. 

Appellant then reached for complainant's crotch and 

simultaneously lifted her in her chair to unzip her pants. 

Complainant held onto the desk and the top of her pants 

struggling to keep them on. When a button on complainant's pants 

popped off during the struggle, the appellant pulled 

complainant's pants and underwear down. He removed his penis 

from his pants and began rubbing it against her buttocks. He 

attempted anal and vaginal intercourse several times and 

ultimately ejaculated on the office floor. Appellant wiped the 

semen from the floor with his jean jacket which hung on the back 

of the office door and left. 
 3 

 After appellant left the office, complainant finished 

counting the money, put it in the safe and left work. She met 

her roommate and told her what had happened. Complainant was 

trembling and on the verge of tears, so her roommate drove her 

home. 

 Because complainant was in no condition to place the call 

herself, her roommate telephoned the police on her behalf at 

12:30 a.m. Other than evidence that items on the office desk had 

been pushed around, there was no appearance of a struggle in the 

room where the incident occurred. Police found evidence of semen 

on the office floor as well as on appellant's jacket, and pubic 

hairs were recovered from the floor in the location where 

complainant had been assaulted. 

 Appellant did not testify. Appellant introduced testimony 

from a witness that, during the time appellant and complainant 

were in the office, she knocked on the office door and spoke to 

appellant. This witness testified that appellant opened the door 

to speak to her, and when appellant answered the door he was 

dressed, and that complainant was seated at the desk with stacks 

of money in front of her. According to her testimony, 

complainant left the office twenty minutes later and bought 

cigarettes and gas before departing from the premises, evidencing 

nothing unusual. 

 I. 

 Consent Instruction 
 4 

 Appellant argues that the trial court erred in refusing to 

give an instruction on the issue of consent. At trial, appellant 

offered the following instruction: 

 Consent by [complainant] is an absolute bar 

to conviction of sexual battery. If after 

consideration of all the evidence you have a 

reasonable doubt as to whether [complainant] 

consented to sexual battery with [appellant], 

then you shall find him not guilty. 

In refusing to give the instruction, the court reasoned that the 

evidence supported the conclusion that the incident had occurred, 

or that it had not, but that there was no evidence that 

complainant had consented to a sexual touching. 

 At the conference on jury instructions, appellant's counsel 

acknowledged that "there is no direct evidence of consent." In 

support of his argument on appeal, appellant contends that there 

was evidence that complainant failed to struggle to repel 

appellant and that she neither told appellant to stop nor yelled 

out for help, even when a third party came to the door. 

 Where "consent [is] vital to [the] defense and [is] 

supported by sufficient evidence to make it a jury issue," it is 

error to refuse to give an instruction on the principle of 

consent. Mery v. Commonwealth, 12 Va. App. 821, 826, 407 S.E.2d 

18, 21 (1991). Conversely, the court does not err by refusing an 

instruction where there is no evidence to support it. Eaton v. 

Commonwealth, 240 Va. 236, 255, 397 S.E.2d 385, 396 (1990); 

Woodward v. Commonwealth, 12 Va. App. 118, 119, 402 S.E.2d 244, 

244 (1991) (citing Bennett v. Commonwealth, 8 Va. App. 228, 234, 
 5 

380 S.E.2d 17, 21 (1989)). "An instruction must be supported by 

more than a scintilla of evidence." Hatcher v. Commonwealth, 218 

Va. 811, 814, 241 S.E.2d 756, 758 (1978) (citing Gibson v. 

Commonwealth, 216 Va. 412, 417, 219 S.E.2d 845, 849 (1975)). 

"[T]he weight of the credible evidence that will amount to more 

than a mere scintilla of evidence is a matter to be resolved on a 

case-by-case basis." Brandau v. Commonwealth, 16 Va. App. 408, 

412, 430 S.E.2d 563, 565 (1993). In determining whether evidence 

amounts to more than a scintilla, "we must look at the evidence 

in the light most favorable to [appellant]." Foster v. 

Commonwealth, 13 Va. App. 380, 383, 412 S.E.2d 198, 200 (1991). 

 Code § 18.2-67.7 provides that "the Commonwealth need not 

demonstrate that the complaining witness cried out or physically 

resisted the accused in order to convict the accused of an 

offense" under Code § 18.2-67.4. See Farish v. Commonwealth, 2 

Va. App. 627, 631, 346 S.E.2d 736, 738-39 (1986). The same 

statute, however, makes equally clear that "the absence of such 

resistance may be considered when relevant to show that the act 

alleged was not against the will of the complaining witness." 

Code § 18.2-67.7. We have interpreted this statute to "allow[] 

the defendant to use lack of resistance to buttress his consent 

defense." Farish, 2 Va. App. at 632, 346 S.E.2d at 739. 

 Appellant points to his witness' testimony that appellant 

opened the door of the office to converse with her, and argues 

that complainant's failure to seek help during this time is 
 6 

evidence of complainant's consent. Appellant's witness, however, 

testified that when appellant opened the door to speak to her, 

appellant was fully clothed and complainant was seated at the 

desk in front of the money. Viewed in the light most favorable 

to appellant, this testimony supports the conclusion that the 

assault did not occur, but does not support the conclusion that 

complainant consented to sexual touching. 

 In addition, "[t]he determination whether the minimum 

quantum of credible evidence supports a particular proposition is 

largely a factor of determining the weight of that evidence in 

comparison to the weight of the other credible evidence that 

negates the proposition in question." Brandau, 16 Va. App. at 

411-12, 430 S.E.2d at 565. Contrary to appellant's argument, all 

the evidence presented on the issue indicates that complainant 

did not consent. Complainant testified that she had rebuffed 

appellant's advances for at least a year and a half prior to the 

night of the offense. Complainant testified that when appellant 

began to fondle her, she moved her arms and elbows to block his 

access to her body and move his arms away from her. She also 

explained that when appellant tried to pull her out of her chair 

and pull her pants down, she held onto the front of the desk and 

held onto her pants to resist appellant's efforts. Complainant's 

pants, introduced at trial, were missing a button, which 

complainant testified was lost during the struggle. 

 We acknowledge that appellant's witness testified that, 
 7 

after complainant left the office, complainant bought cigarettes, 

bought gas, and laughed at a joke made by the witness. The 

relationship of these facts to the issue of consent, however, is 

highly attenuated. Appellant made no attempt to connect these 

observations factually with the issue of complainant's consent to 

sexual touching, and does not specifically argue that these facts 

justify a consent instruction on appeal. At best, viewed in the 

context of all the evidence, this evidence amounts to "'the least 

particle'" of evidence of consent. Brandau, 16 Va. App. at 411, 

430 S.E.2d at 565 (quoting Black's Law Dictionary 1345 (6th ed. 

1990)) (defining "scintilla"). Simply put, we find that 

appellant's evidence of consent did not amount to "more than a 

scintilla." Hatcher, 218 Va. at 814, 241 S.E.2d at 758 (citing 

Gibson, 216 Va. at 417, 219 S.E.2d at 849). We therefore hold 

that the trial court properly refused to instruct the jury on the 

issue of consent. 

 II. 

Sufficiency of the Evidence 

 Appellant argues that the evidence is insufficient to 

support his conviction on the ground that complainant's failure 

to call for help when a woman knocked on the door of the office 

and her "normal" appearance after the incident supports the 

inference that she acquiesced in the actions of the appellant. 

He also argues that "it is incredible" that he, as a store 

manager on one of the busiest nights of the year, would risk an 
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outcry from complainant in the event she rejected his advances 

and that complainant's actions further support the inference that 

he acted "with the perception that [complainant] . . . assented." 

 A conviction for rape and other sexual offenses may be 

sustained solely upon the uncorroborated testimony of the victim. 

Fisher v. Commonwealth, 228 Va. 296, 299, 321 S.E.2d 202, 203 

(1984). The credibility of witnesses and the weight assigned 

their testimony are matters exclusively for the jury. Lea v. 

Commonwealth, 16 Va. App. 300, 304, 429 S.E.2d 477, 479 (1993) 

(citing, inter alia, Schneider v. Commonwealth, 230 Va. 379, 383, 

337 S.E.2d 735, 736-37 (1985)). The verdict of a jury will not 

be disturbed on appeal unless it is plainly wrong or without 

evidence to support it. Bell v. Commonwealth, 22 Va. App. 93, 

96, 468 S.E.2d 114, 116 (1996) (citing, inter alia, Code 

§ 8.01-680). 

 In contrast to evaluating a theory of defense instruction, 

"[w]hen considering the sufficiency of the evidence on appeal in 

a criminal case, this Court views the evidence in a light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom." Carter v. Commonwealth, 

25 Va. App. 721, 725, 492 S.E.2d 480, 482 (1997) (citing 

Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 

537 (1975)). If there is evidence to support the verdict, this 

Court "should not overrule it and substitute its own judgment, 

even if its opinion might differ from that of the jury." George 
 9 

v. Commonwealth, 242 Va. 264, 278, 411 S.E.2d 12, 20 (1991). 

This standard "gives full play to the responsibility of the trier 

of fact fairly to resolve conflicts in the testimony, to weigh 

the evidence, and to draw reasonable inferences from basic facts 

to ultimate facts." Jackson v. Virginia, 443 U.S. 307, 309 

(1979). 

 Here, complainant's testimony was plainly sufficient to 

support appellant's conviction. She testified to each of the 

elements of appellant's offense, and her testimony was not 

inherently incredible. Complainant's testimony was supported by 

statements she made to her roommate and police officers 

immediately after the assault. It was also supported by physical 

evidence of semen on appellant's jacket, found in the office, and 

a button missing from complainant's pants. Appellant also 

testified that she "froze up" because she was "shocked" and 

"terrified." We hold, therefore, that the evidence supports 

appellant's conviction. 

 Affirmed.