COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Bray and Overton 

Argued at Norfolk, Virginia 

HERBERT LEWIS, SR. 

v. Record No. 2045-94-1 MEMORANDUM OPINION*

 BY JUDGE JOSEPH E. BAKER 

COMMONWEALTH OF VIRGINIA FEBRUARY 6, 1996 

FROM THE CIRCUIT COURT OF ACCOMACK COUNTY 

Glen A. Tyler, Judge 

 Carl H. Bundick for appellant. 

 Kathleen B. Martin, Assistant Attorney General 

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

 for appellee. 

 Herbert Lewis, Sr. (appellant) appeals from a judgment of 

the Circuit Court of Accomack County (trial court) that approved 

his jury convictions for two counts of rape and one count of 

attempted rape. He contends that the trial court erroneously 

admitted evidence of his flight from officers and further erred 

by refusing instructions he offered relating to "aggravated 

sexual battery" and "sexual battery." Finding no error, we 

affirm the convictions. 

 Upon familiar principles, we view the evidence in the light 

most favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom. Higginbotham v. 

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

Because the parties are well advised concerning the evidence, we 

 

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

designated for publication. 
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state only the facts necessary to an understanding of this 

opinion. 

 On April 8, 1993, appellant was arrested on three counts of 

rape alleged to have occurred on Chincoteague Island, following 

which he was released on bond requiring his appearance in 

district court on April 13, 1993. On that date, appellant failed 

to appear. Pursuant to a capias issued, members of the police 

attempted to stop appellant when they sighted him on a causeway, 

appearing to flee to the mainland. Appellant failed to accede to 

police warnings and during the chase by the police, appellant 

drove his motor vehicle at speeds "in excess of eighty miles an 

hour," finally stopping only after he had run off the road. 

 At trial, the victim testified that after being permitted to 

enter her house, appellant, without her permission, pushed her to 

the floor, threatened her, and raped her three times between 

10:30 p.m. and daybreak the next morning. The victim denied 

having consensual sex with appellant. A doctor testified that 

his examination of the victim's vaginal entrance showed trauma 

and disclosed sperm. The trauma, the doctor said, resembled that 

seen in younger women who had been "gang raped." 

 Appellant's defense was that the victim had consented to 

have sexual intercourse but that he was unable to perform due to 

medical conditions from which he suffers. 

 Evidence that the accused fled to avoid arrest is admissible 

to show consciousness of guilt. See Bowie v. Commonwealth, 184 
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Va. 381, 392, 35 S.E.2d 345, 350 (1945), and cases there cited. 

Here, the evidence of appellant's flight clearly shows his 

intention to elude the police and avoid arrest on the capias. 

Although the evidence incidentally disclosed that appellant may 

also have been guilty of another crime, it still may be shown to 

prove the consciousness of guilt. See Langhorne v. Commonwealth, 

13 Va. App. 97, 102, 409 S.E.2d 476, 479 (1991). The purpose of 

the evidence concerning the manner in which appellant was driving 

was not to show he drove recklessly, but rather to show his 

intent to avoid trial on the rape charges. 

 At trial, appellant's defense was not only that he did not 

commit the rapes, but that he was incapable of committing those 

offenses. It is clear that appellant had to be convicted of 

rape, attempted rape, or set free, as no other offenses are shown 

by the record. For that reason, it was not error to refuse 

instructions that dealt with sexual battery as a lesser-included 

offense of the crime of rape. See Bennett v. Commonwealth, 236 

Va. 448, 470-71, 374 S.E.2d 303, 319 (1988), cert. denied, 490 

U.S. 1028 (1989); Frye v. Commonwealth, 231 Va. 370, 389, 345 

S.E.2d 267, 281 (1986). 

 For the reasons stated, the judgment of the trial court is 

affirmed. 

 Affirmed.