COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Annunziata and Humphreys 

Argued at Richmond, Virginia 

RICHARD LEE RAGSDALE 

 OPINION BY 

v. Record No. 0340-01-2 JUDGE ROBERT J. HUMPHREYS 

 JULY 2, 2002 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF NOTTOWAY COUNTY 

Thomas V. Warren, Judge 

 (William R. Blandford, Jr.; Blandford, 

Carrico & Newlon, P.C., on brief), for 

appellant. Appellant submitting on brief. 

 H. Elizabeth Shaffer, Assistant Attorney 

General (Randolph A. Beales, Attorney 

General, on brief), for appellee. 

Richard Lee Ragsdale appeals his conviction, after a bench 

trial, for carnal knowledge of a minor, in violation of Code 

§ 18.2-63. Ragsdale contends the trial court erred in refusing 

to grant his motion to dismiss on the grounds the charge 

violated his right against double jeopardy as secured by the 

Fifth Amendment to the United States Constitution and by 

Article I, Section 8 of the Virginia Constitution. Ragsdale 

further contends the trial court erred in finding that carnal 

knowledge of a child, pursuant to Code § 18.2-63, is not a 

lesser-included offense of rape, under Code § 18.2-61. In the 

alternative, Ragsdale argues the trial court erred in finding 
the evidence sufficient as a matter of law to support the 

conviction. 

I. BACKGROUND 

On September 7, 1999, a Nottoway County grand jury indicted 

Ragsdale for the rape of C.W., on April 26, 1999, in violation 

of Code § 18.2-61.1 Prior to Ragsdale's trial, he filed a motion 

to dismiss the charges against him, alleging that, pursuant to 

Code § 19.2-243, more than five months had passed since the 

determination of probable cause.2 At his trial on December 13, 

1999, the Commonwealth consented to the motion to dismiss and 

 1

 Code § 18.2-61(A) states: 

If any person has sexual intercourse with a 

complaining witness who is not his or her 

spouse or causes a complaining witness, 

whether or not his or her spouse, to engage 

in sexual intercourse with any other person 

and such act is accomplished (i) against the 

complaining witness's will, by force, threat 

or intimidation of or against the 

complaining witness or another person, or 

(ii) through the use of the complaining 

witness's mental incapacity or physical 

helplessness, or (iii) with a child under 

age thirteen as the victim, he or she shall 

be guilty of rape. 

 2

 Code § 19.2-243 provides, in pertinent part: 

Where a general district court has found 

that there is probable cause to believe that 

the accused has committed a felony, the 

accused, if he is held continuously in 

custody thereafter, shall be forever 

discharged from prosecution for such offense 

if no trial is commenced in the circuit 

court within five months from the date such 

probable cause was found by the district 

court. 

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the court dismissed the charge against Ragsdale, with prejudice, 

on the basis of the Commonwealth's failure to comply with the 

statutory speedy trial requirements of Code § 19.2-243. 

On January 4, 2000, Ragsdale was indicted in the Circuit 

Court of Nottoway County for the felony offense of carnally 

knowing, without the use of force, C.W., a child fourteen years 

of age, in violation of Code § 18.2-63.3 The date of offense was 

the same date listed for the rape charge. 

On May 30, 2000, prior to his trial on the new indictment, 

Ragsdale filed a plea of double jeopardy, requesting that the 

 3

 Code § 18.2-63 provides: 

If any person carnally knows, without the 

use of force, a child thirteen years of age 

or older but under fifteen years of age, 

such person shall be guilty of a Class 4 

felony. However, if such child is thirteen 

years of age or older but under fifteen 

years of age and consents to sexual 

intercourse and the accused is a minor and 

such consenting child is three years or more 

the accused's junior, the accused shall be 

guilty of a Class 6 felony. If such 

consenting child is less than three years 

the accused's junior, the accused shall be 

guilty of a Class 4 misdemeanor. 

In calculating whether such child is three 

years or more a junior of the accused minor, 

the actual dates of birth of the child and 

the accused, respectively, shall be used. 

For the purposes of this section, (i) a 

child under the age of thirteen years shall 

not be considered a consenting child and 

(ii) "carnal knowledge" includes the acts of 

sexual intercourse, cunnilingus, fellatio, 

anallingus, anal intercourse, and animate 

and inanimate object sexual penetration. 

(Emphasis added.) 

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trial court dismiss the charge against him. Ragsdale contended 

the offense for which he was indicted was either the same or a 

lesser-included offense of the offense dismissed by the Circuit 

Court of Nottoway County on December 13, 1999, and, as such, his 

retrial was prohibited pursuant to Code § 19.2-243. Ragsdale 

further argued that to try him on the subsequent indictment 

would constitute double jeopardy and a denial of his rights 

under the United States Constitution and the Virginia 

Constitution. 

At his trial on the second indictment on June 8, 2000, 

Ragsdale entered a plea of not guilty. The trial court then 

heard argument on Ragsdale's plea of double jeopardy. The court 

held, "I think it's pretty book [sic] law that jeopardy never 

attached, because he was never tried, there was [sic] no 

witnesses sworn and the jury was not sworn. Therefore, jeopardy 

did not attach." The court did not rule on Ragsdale's argument 

that carnal knowledge is a lesser-included offense of rape. 

However, the court took Ragsdale's plea and attendant motion to 

dismiss under advisement and proceeded with the trial. 

Upon completion of the presentation of the Commonwealth's 

case-in-chief, Ragsdale raised a motion to strike the evidence, 

arguing that "the overall testimony of the complaining witness 

should not be given great weight." Ragsdale then argued that 

the Commonwealth did not prove its prima facie case. The court 

denied the motion, and ultimately found Ragsdale guilty of the 

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charge, but delayed a final decision pending consideration of 

Ragsdale's plea of double jeopardy and motion to dismiss. 

By letter opinion dated August 11, 2000, the trial court 

ruled that carnal knowledge of a child, as set forth in Code 

§ 18.2-63, is not a lesser-included offense of rape, as set 

forth in Code § 18.2-61. The trial court stated: 

It is my view that the elements of rape, 

requiring penis/vagina penetration are 

different than those of section 18.2-63 

which in addition to intercourse includes 

other acts set out in the last paragraph. 

If one rapes a fourteen year old girl and 

also commits other acts set forth in 18.2-63 

he has in my opinion committed two separate 

and different crimes. The present 

indictment for carnal knowledge is not a 

lesser includable offense within 18.2-61. 

The trial court, therefore, rejected Ragsdale's plea of double 

jeopardy and denied his motion to dismiss. 

II. ANALYSIS 

 The Fifth Amendment of the United States Constitution 

declares that no person shall "be subject for the same offense to 

be twice put in jeopardy of life or limb." The Virginia 

Constitution likewise protects an individual from being "put twice 

in jeopardy for the same offense."4 As we noted in Dalo v. 

Commonwealth, "[t]he Fifth Amendment protection against double 

jeopardy includes 'three separate guarantees: (1) "It protects 

against a second prosecution for the same offense after acquittal. 

 4

 Va. Const. art. I, § 8. 

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[(2) I]t protects against a second prosecution for the same 

offense after conviction. [(3)] And it protects against multiple 

punishments for the same offense."'"5 However, jeopardy must 

first attach before a claim of double jeopardy can succeed. 

In the case at bar, we hold that the trial court properly 

determined jeopardy did not attach in the first proceeding. 

Indeed, in a bench trial, jeopardy does not attach until the 

first witness has been sworn.6 On this record, there is no 

evidence that a witness had been sworn at the proceeding on 

December 13, 1999. Therefore, the trial court did not err in 

denying Ragsdale's plea of double jeopardy as jeopardy never 

attached in the first proceeding. 

Nevertheless, according to Code § 19.2-243, Ragsdale must 

be "forever discharged from prosecution for [that charge]," due 

to the Commonwealth's violation of the speedy trial statute. 

Specifically, the offense from which Ragsdale is discharged is 

the April 26, 1999 rape of C.W.7 Ragsdale argues that carnal 

knowledge is a lesser-included offense of rape. Thus, he 

contends he must also be discharged from prosecution for this 

 5

 37 Va. App. 156, 162, 554 S.E.2d 705, 708 (2001) (quoting 

Illinois v. Vitale, 447 U.S. 410, 415 (1980) (quoting North 

Carolina v. Pearce, 395 U.S. 711, 717 (1969), overruled on other 

grounds by Alabama v. Smith, 490 U.S. 794 (1989))). 

6 Peterson v. Commonwealth, 5 Va. App. 389, 395, 363 S.E.2d 

440, 444 (1987) (citing Serfass v. United States, 420 U.S. 377, 

388 (1975)). 

7 See id. 

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offense. Assuming, without deciding, that under this rule 

Ragsdale would also be discharged from prosecution for a 

lesser-included offense, we do not agree with Ragsdale's 

contention that carnal knowledge is a lesser-included offense of 

rape. 

"Generally, to determine whether charges are for the 'same 

offense,' courts turn to the test established in Blockburger.8

. . . 'the applicable rule is that where the same act or 

transaction constitutes a violation of two distinct statutory 

provisions, the test to be applied to determine whether there 

are two offenses or only one, is whether each provision requires 

proof of a fact which the other does not.'"9 In applying the 

Blockburger test, the two offenses "are to be examined in the 

abstract, rather than with reference to the facts of the 

particular case under review."10

Code § 18.2-61 states, "If any person has sexual 

intercourse with a complaining witness who is not his or her 

spouse . . . and such act is accomplished . . . against the 

complaining witness's will, by force, threat or intimidation of 

or against the complaining witness . . . he or she shall be 

 8 Blockburger v. United States, 284 U.S. 299 (1932). 

9 Dalo, 37 Va. App. at 162, 554 S.E.2d at 708 (quoting Brown 

v. Ohio, 432 U.S. 161, 166 (1977)). 

10 Blythe v. Commonwealth, 222 Va. 722, 726, 284 S.E.2d 796, 

798 (1981) (citing Whalen v. United States, 445 U.S. 684, 694 

n.8 (1980)). 

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guilty of rape." Code § 18.2-63 states, "[i]f any person 

carnally knows, without the use of force, a child thirteen years 

of age or older but under fifteen years of age, such person 

shall be guilty of a Class 4 felony." The code section further 

defines "carnal knowledge" as "includ[ing] the acts of sexual 

intercourse, cunnilingus, fellatio, anallingus, anal 

intercourse, and animate and inanimate object sexual 

penetration." 

Thus, Code § 18.2-61 requires proof of facts that Code 

§ 18.2-63 does not require, and vice versa. Code § 18.2-61 

requires proof of (i) sexual intercourse, (ii) that is 

accomplished against the complaining witness's will, (iii) by 

force, threat, or intimidation, while Code § 18.2-63 requires 

proof of (i) carnal knowledge, which includes acts other than 

sexual intercourse, (ii) with a child between thirteen and 

fifteen years old, (iii) without the use of force. Accordingly, 

rape requires proof of two facts, specifically, sexual 

intercourse and the use of force, that carnal knowledge does not 

require. Carnal knowledge requires proof of one fact that rape 

does not require, specifically, that the victim be between 

thirteen and fifteen years old. Carnal knowledge also does not 

require the act of sexual intercourse or the use of force, 

required by rape. Therefore, under the traditional Blockburger

test, carnal knowledge is not a lesser-included offense of rape, 

and the trial court did not err in allowing the prosecution of 

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the offense to proceed.11 Therefore, Ragsdale's argument fails 

because he was not subsequently prosecuted for the "same 

offense." 

 Finally, Ragsdale argues that the trial court erred in 

finding the evidence sufficient as a matter of law to sustain 

the conviction. Under accepted principles, "[w]here the 

sufficiency of the evidence is challenged on appeal, [the] 

evidence must be construed in the light most favorable to the 

Commonwealth, giving it all reasonable inferences fairly 

deducible therefrom."12 The "'judgment of a trial court sitting 

without a jury is entitled to the same weight as a jury verdict 

and will not be disturbed on appeal unless plainly wrong or 

without evidence to support it.'"13 Moreover, "the conclusions 

of the fact finder on issues of witness credibility may be 

disturbed on appeal only when we find that the witness' 

testimony was 'inherently incredible, or so contrary to human 

experience as to render it unworthy of belief.'"14 "In all other 

 11 Blockburger, 284 U.S. at 299. 

12 Norman v. Commonwealth, 2 Va. App. 518, 520, 346 S.E.2d 

44, 45 (1986) (citing Higginbotham v. Commonwealth, 216 Va. 349, 

352, 218 S.E.2d 534, 537 (1975)). 

13 Brown v. Commonwealth, 5 Va. App. 489, 491, 364 S.E.2d 

773, 774 (1988) (quoting Hambury v. Commonwealth, 3 Va. App. 

435, 437, 350 S.E.2d 524, 524 (1986)). 

14 Ashby v. Commonwealth, 33 Va. App. 540, 548, 535 S.E.2d 

182, 187 (2000) (quoting Fisher v. Commonwealth, 228 Va. 296, 

299-300, 321 S.E.2d 202, 204 (1984)). 

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cases, we must defer to the conclusions of 'the fact finder[,] 

who has the opportunity of seeing and hearing the witnesses.'"15 

"These same principles apply in cases involving rape, sodomy, 

and other sexual offenses, which may be sustained solely upon 

the testimony of the victim, even in the absence of 

corroborating evidence."16

 The evidence in the case at bar, when viewed in the light 

most favorable to the Commonwealth, is sufficient to find 

Ragsdale guilty of carnal knowledge of C.W. C.W. testified that 

she was fourteen years of age on the date of the offense and 

that she had sexual intercourse with Ragsdale on that day. 

Further, the trial court, in finding Ragsdale guilty, stated, "I 

thought that [C.W.] was an extremely credible witness. . . . I 

think her testimony is extremely credible and [Ragsdale's] to 

the contrary." Ragsdale offered no evidence, other than his own 

self-serving testimony, to rebut C.W.'s testimony.17 We hold the 

 15 Ashby, 33 Va. App. at 548, 535 S.E.2d at 187 (quoting 

Schneider v. Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735, 

736-37 (1985)). 

16 Ashby, 33 Va. App. at 548-49, 535 S.E.2d at 187. 

17 See Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 

S.E.2d 233, 235 (1998) (holding that "the fact finder is 

entitled to disbelieve the self-serving testimony of the accused 

and to conclude that the accused is lying to conceal his 

guilt"). 

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evidence was therefore sufficient to prove beyond a reasonable 

doubt that Ragsdale committed the charged offense. 

Affirmed.

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Benton, J., concurring. 

 Code § 18.2-63 provides that the term "carnal knowledge" 

includes acts of sexual intercourse, cunnilingus, fellatio, 

annallingus, anal intercourse, animate object sexual 

penetration, or inanimate object sexual penetration. Prior to 

the trial, Ragsdale did not file a motion for a bill of 

particulars seeking to learn what act of carnal knowledge the 

Commonwealth intended to prove. The sole contention raised by 

Ragsdale's pretrial plea of double jeopardy was the claim that 

"to try [him] on the present indictment would constitute double 

jeopardy and a denial of his rights under the Constitution." At 

the argument on the motion, the prosecutor asserted that carnal 

knowledge could be proved by evidence of one of various sexual 

acts under Code § 18.2-63. 

 For purposes of double jeopardy, "the test to be applied to 

determine whether there are two offenses or only one, is whether 

each [statutory] provision requires proof of a fact which the 

other does not." Blockburger v. United States, 284 U.S. 299, 

304 (1932). Applying this test in Whalen v. United States, 445 

U.S. 684 (1980), the United States Supreme Court noted that 

although courts should not look to the facts as alleged in the 

indictments, id. at 694 n.8, courts should look at the elements 

of the offense as alleged in the indictments. Thus, in Whalen, 

the Supreme Court ruled as follows: 

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 In this case, resort to the Blockburger

rule leads to the conclusion that Congress 

did not authorize consecutive sentences for 

rape and for a killing committed in the 

course of the rape, since it is plainly not 

the case that "each provision requires proof 

of a fact which the other does not." A 

conviction for killing in the course of a 

rape cannot be had without proving all the 

elements of the offense of rape. The 

Government contends that felony murder and 

rape are not the "same" offense under 

Blockburger, since the former offense does 

not in all cases require proof of a rape; 

that is, [the felony murder statute] 

proscribes the killing of another person in 

the course of committing rape or robbery or 

kidnapping or arson, etc. Where the offense 

to be proved does not include proof of a 

rape – for example, where the offense is a 

killing in the perpetration of a robbery – 

the offense is of course different from the 

offense of rape, and the Government is 

correct in believing that cumulative 

punishments for the felony murder and for a 

rape would be permitted under Blockburger. 

In the present case, however, proof of rape 

is a necessary element of proof of the 

felony murder, and we are unpersuaded that 

this case should be treated differently from 

other cases in which one criminal offense 

requires proof of every element of another 

offense. There would be no question in this 

regard if Congress, instead of listing the 

six lesser included offenses in the 

alternative, had separately proscribed the 

six different species of felony murder under 

six statutory provisions. It is doubtful 

that Congress could have imagined that so 

formal a difference in drafting had any 

practical significance, and we ascribe none 

to it. To the extent that the Government's 

argument persuades us that the matter is not 

entirely free of doubt, the doubt must be 

resolved in favor of lenity. 

445 U.S. at 693-94 (citations and footnote omitted). 

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 The Supreme Court of Virginia has held that, "[i]n applying 

the Blockburger test, we look at the offenses charged in the 

abstract, without referring to the particular facts of the case 

under review." Coleman v. Commonwealth, 261 Va. 196, 200, 539 

S.E.2d 732, 734 (2001). The Supreme Court's decision in Coleman

appears, in its application of the test, to be at odds with 

Whalen because Coleman requires that we look at "the use of the 

disjunctive 'or' in the statute" as creating hypothetical 

alternatives within one statute, see 261 Va. at 200, 539 S.E.2d 

at 734, rather than the actuality of distinct statutes with each 

having one of the disjunctive elements. See Whalen, 445 U.S. at 

694 (rejecting the Government's argument that "felony murder and 

rape are not the 'same' offense under Blockburger, since the 

former offense does not in all cases require proof of a rape"). 

Indeed, "the teaching of Whalen" clearly is that "the 

construction of the statute should be in terms of the actuality 

and not in terms of hypothetical but not genuine possibilities." 

United States v. Barrington, 662 F.2d 1046, 1052 (4th Cir. 

1981). 

 When I apply the Coleman reasoning to this case, I conclude 

that, although rape requires proof of sexual intercourse under 

Code § 18.2-61 and carnal knowledge may be proved by sexual 

intercourse under Code § 18.2-63, carnal knowledge does not 

require proof of sexual intercourse (i.e., it also may be proved 

by either of six other sexual acts). Thus viewed, the carnal 

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knowledge statute cannot be deemed a lesser-included offense of 

the rape. For these reasons, I concur in affirming the 

conviction. 

 I also would summarily note that after the Commonwealth's 

evidence established that the act it was relying on to prove 

carnal knowledge was the same act that gave rise to the rape 

indictment, no motion was made to strike pursuant to Code 

§ 19.2-243, alleging that the conviction was merely the same 

charge earlier dismissed because the Commonwealth violated Code 

§ 19.2-243. Thus, we need not decide that issue. 

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