COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Coleman and Bumgardner 

DAVID ALLEN HAYNES 

 MEMORANDUM OPINION* BY 

v. Record No. 1778-98-3 JUDGE RUDOLPH BUMGARDNER, III 

 OCTOBER 5, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ALLEGHANY COUNTY 

Duncan M. Byrd, Jr., Judge 

 (James V. Doss, III, on brief), for 

appellant. Appellant submitting on brief. 

 (Mark L. Earley, Attorney General; Richard B. 

Smith, Assistant Attorney General, on brief), 

for appellee. Appellee submitting on brief. 

 David Allen Haynes appeals from his convictions of 

unlawfully entering the property of another, sexual battery, and 

attempted rape. He concedes his guilt of unlawful entry and 

sexual battery, but argues the trial court erred in convicting 

him of attempted rape. He contends that the evidence was 

insufficient and that sexual battery is a lesser-included 

offense of attempted rape and conviction of both crimes violates 

his protections against double jeopardy. Finding no error, we 

affirm the conviction. 

On appeal, we "discard all evidence of the accused that 

conflicts with that of the Commonwealth and regard as true all 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.
credible evidence favorable to the Commonwealth and all fair 

inferences reasonably deducible therefrom." Lea v. 

Commonwealth, 16 Va. App. 300, 303, 429 S.E.2d 477, 479 (1993). 

Haynes entered the victim's trailer shortly after 7:00 a.m. 

and woke her. The victim only knew the defendant's first name, 

and he had never been to her trailer, was not expected, or 

invited. He was drinking, smelled of alcohol, and had a beer 

bottle in his hand. He approached the victim in her bedroom but 

would not leave when she told him to leave. The defendant 

started kissing the victim and eventually he put his hand on her 

shoulder while holding her wrist behind her back with his other 

hand. He touched her hair and face, then her leg underneath her 

nightgown and moved his hand up her leg. The victim testified: 

"I knew he was going to try to take my panties off. His hand 

was on my vagina . . . inside of my panties . . . ." She 

grabbed his hand, pushed him as hard as she could, and ran into 

the bathroom when he fell backwards. 

 Inside the bathroom, the victim braced herself against the 

door which had no lock. As the defendant banged on the door, he 

tried to get her to let him inside. With anger in his voice, he 

threatened "I'll just fuck you then," and hit the door so that 

it hit the victim in the head. The victim could see through a 

slight opening that the defendant had taken off all his clothes. 

 When the victim ran into the bathroom, she had been able 

to grab a telephone, and while the defendant was trying to get 

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in the bathroom, she called the police. By the time they 

arrived, the defendant had left, and his clothes and beer bottle 

were gone. The victim described her assailant, gave his first 

name, and identified his picture in a photo lineup. The 

officers interviewed the defendant the next day. 

The defendant first claimed to have blacked out from 

drinking and denied knowing anything about the incident. A few 

days later, he changed his story and said he had gone to the 

trailer. He claimed to have been having an affair with the 

victim for a year, and that morning he was to get a ride to work 

when "she kind of freaked out." He denied touching her that 

morning. 

The trial court's ruling will not be disturbed on appeal 

unless plainly wrong or unsupported by the evidence. See Martin 

v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 

(1987). The fact finder, who determines the credibility of the 

witnesses and the weight accorded their testimony, may accept or 

reject the testimony in whole or in part. See Bridgeman v. 

Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986). 

The fact finder is also entitled to disbelieve the self-serving 

testimony of the accused and to conclude that he is lying to 

conceal his guilt. See Speight v. Commonwealth, 4 Va. App. 83, 

88, 354 S.E.2d 95, 98 (1987) (en banc). 

The defendant concedes that the evidence is sufficient to 

support the conviction of sexual battery. See Code § 18.2-67.4. 

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He completed committing that crime when he touched the victim's 

vagina as he held her hand behind her back. Separate from those 

actions, the defendant's acts after the victim escaped to the 

bathroom constitute the attempted rape. 

"Attempted rape consists of 'the intent to engage in sexual 

intercourse, and some direct yet ineffectual, act towards its 

consummation.'" Siquina v. Commonwealth, 28 Va. App. 694, 699, 

508 S.E.2d 350, 353 (1998) (citation omitted). See Code 

§ 18.2-61(A). Once the victim entered the bathroom, the 

defendant continually banged and forced the door in an attempt 

to get inside. He disrobed and threatened to "fuck [her]." 

Credible evidence established each element of the crime. 

All of the actions that proved the attempted rape were 

separate and distinct from the actions that proved the sexual 

battery. The defendant could not have been twice convicted for 

the same offense; under these facts, they were separate and 

distinct offenses. See Blockburger v. United States, 284 U.S. 

299, 304 (1932). Accordingly, we need not address the argument 

that sexual battery is a lesser-included offense of attempted 

rape. We affirm the conviction of attempted rape. 

Affirmed.

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