COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Frank and Clements 

Argued at Alexandria, Virginia 

BOBBY JOE LEONARD 

 OPINION BY 

v. Record No. 2858-00-4 JUDGE JEAN HARRISON CLEMENTS 

 NOVEMBER 5, 2002 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Stanley P. Klein, Judge 

 James G. Connell, III (Devine & Connell, 

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

 Stephen R. McCullough, Assistant Attorney 

General (Randolph A. Beales, Attorney 

General, on brief), for appellee. 

 Bobby Joe Leonard was indicted, tried, and convicted in a 

jury trial of rape, in violation of Code § 18.2-61, abduction 

with intent to defile, in violation of Code § 18.2-48, and 

attempted murder, in violation of Code §§ 18.2-26 and 18.2-32. 

On appeal, Leonard contends the trial court erred (1) in 

refusing to dismiss his indictment for attempted murder because 

the Commonwealth vindictively obtained that indictment after he 

refused to accept a plea bargain and plead guilty to the rape 

and abduction charges,1 (2) in admitting evidence of his attempt 

to escape from jail because he was not charged with attempted 

 1

 The Honorable Henry E. Hudson presided over the 

proceedings involving Leonard's motion to dismiss the indictment 

for attempted murder. 
murder at the time of the attempted escape and was being held on 

two additional charges unrelated to the crimes for which he was 

tried in this case, and (3) in permitting a sexual assault nurse 

examiner to offer expert medical testimony regarding the 

causation of the victim's sexual injuries. For the reasons that 

follow, we affirm Leonard's convictions. 

I. BACKGROUND 

 On August 17, 1999, Leonard was arrested and charged with 

the rape and abduction with intent to defile of S.T. On 

September 9, 1999, while incarcerated on those and two other 

unrelated charges—unauthorized use of a vehicle and violation of 

the terms of his parole—Leonard and another inmate attempted to 

escape from jail. 

 Prior to the preliminary hearing in this case, Leonard and 

the prosecutor engaged in plea negotiations, which failed when 

Leonard rejected the Commonwealth's offer. On November 9, 1999, 

after conducting a preliminary hearing, the general district 

court certified the charges to the grand jury. On November 15, 

1999, the grand jury indicted Leonard for rape and abduction 

with intent to defile. 

 The case was set for trial on December 21, 1999, and 

subsequently continued, on the Commonwealth's motion, to January 

31, 2000. The Commonwealth indicated at the time that it 

intended to amend the charges and seek the mandatory life 

sentence for second-time violent sex offenders provided for in 

- 2 - 
Code § 18.2-67.5:3. Leading up to the January 31, 2000 

scheduled trial date, the Commonwealth and Leonard conducted 

plea negotiations focusing on the possibility of an indictment 

under Code § 18.2-67.5:3. However, because the facts regarding 

Leonard's prior conviction revealed that Leonard did not qualify 

for the enhanced penalty, the Commonwealth did not pursue such a 

course of action. 

 On January 21, 2000, the Commonwealth and Leonard again 

exchanged offers for a possible plea agreement, but those 

negotiations also proved unsuccessful. On January 27, 2000, 

Leonard obtained a continuance of the trial to March 1, 2000. 

 On February 16, 2000, the Commonwealth informed Leonard it 

would return to the grand jury to seek an indictment for 

attempted murder if a plea agreement could not be reached.2 

 2

 At the subsequent pretrial hearing on Leonard's motion to 

dismiss the attempted murder indictment, the prosecutor 

described this occurrence as follows: 

 During this time, counsel [for Leonard] 

and I engaged in some plea negotiations, 

which obviously did not bear fruit for 

either side. During these times, I told her 

I was intending to indict [Leonard] for 

attempted murder if we were not going to be 

able to come to some sort of agreement. 

* * * * * * * 

 . . . Because our negotiations did not 

bear fruit, I had indicated to counsel that 

I was going to attempt or probably go 

forward with the attempted murder 

[indictment]. 

- 3 - 
Leonard chose not to plead guilty. Accordingly, on February 22, 

2000, the Commonwealth obtained from the first available grand 

jury an indictment charging Leonard with attempted murder. 

Leonard does not dispute that the indictment for attempted 

murder was fully justified by the evidence or that the 

Commonwealth was in possession of such evidence at the time it 

obtained the original rape and abduction indictments. 

Similarly, the Commonwealth does not dispute that Leonard's 

refusal to plead guilty to the original charges was the reason 

it sought the indictment for attempted murder. 

 On February 25, 2000, the trial court, in scheduling the 

trial on the attempted murder charge, granted Leonard's request 

to have the trial on the rape and abduction charges continued so 

that all three charges could be tried together. Trial on the 

three charges was set for April 5, 2000. 

 On March 10, 2000, the trial court denied Leonard's motion 

to dismiss the indictment for attempted murder on the ground of 

prosecutorial vindictiveness. Finding the Commonwealth's 

actions were "a free exercise of prosecutorial discretion," the 

trial court concluded the circumstances of the case did not 

"rise to the level of a due process violation." 

 On April 4, 2000, the day before trial was set to commence, 

the Commonwealth learned that S.T., previously thought to be an 

adult, was in fact a juvenile. In light of that information, 

the parties agreed that the rape and abduction with intent to 

- 4 - 
defile charges were improperly certified from the general 

district court and that, as a result, the trial court lacked 

jurisdiction over those charges. Accordingly, the Commonwealth, 

by agreement of the parties, "nolle prossed" the original rape 

and abduction with intent to defile charges and obtained new 

indictments on those charges on April 17, 2000. 

 On April 28, 2000, the trial court conducted a hearing on 

Leonard's pretrial motions in limine to exclude (1) evidence of 

his attempt to escape from jail on September 9, 1999, and (2) 

expert testimony by the sexual assault nurse examiner on the 

causation of the victim's sexually related injuries. Denying 

Leonard's motions, the trial court ruled that such evidence and 

testimony were properly admissible at trial. Leonard renewed 

these motions at trial, and, following argument and, in the case 

of the nurse examiner's testimony, voir dire of the nurse 

examiner, the trial court again denied the motions. 

 On July 19, 2000, the trial court granted the motion of 

Leonard's appointed counsel to withdraw. Leonard, at his own 

request, proceeded to trial pro se. The court appointed an 

advisory counsel to assist him at trial, which commenced on July 

24, 2000. 

At trial, Diane Burkart, the sexual assault nurse examiner 

who had examined S.T. at the hospital, qualified as an expert 

witness in the field of "sexual assault nurse examination." She 

testified that, to a reasonable degree of medical certainty, the 

- 5 - 
bruises she observed around S.T.'s vaginal opening were caused 

by "blunt trauma." She would not expect to see, she further 

testified, the degree of injury she observed to S.T. "in an 

[in]experienced consensual intercourse situation." 

 Testifying on his own behalf at trial, Leonard denied he 

raped, abducted, or attempted to murder S.T. On 

cross-examination, he testified, in response to questioning by 

the prosecutor, that he did attempt to escape from jail while 

being held on the rape and abduction charges, because jail "is a 

horrible place to be" and he was "homesick." 

At the close of the evidence at trial, the court instructed 

the jury, inter alia, that 

if a person leaves the place where a crime 

was committed, or flees to avoid detection, 

apprehension or arrest this creates no 

presumption that the person is guilty of 

having committed the crime. However, it is 

a circumstance which you may consider along 

with the other evidence. 

 Following argument and instruction by the court, the jury 

found Leonard guilty of the three charged crimes. The jury 

recommended a sentence of life in prison for the rape, twenty 

years for the abduction with intent to defile, and ten years for 

the attempted murder. By orders entered November 13, 2000, the 

trial court imposed sentence in accord with the jury's 

recommendations. This appeal followed. 

- 6 - 
II. PROSECUTORIAL VINDICTIVENESS 

 Leonard contends the trial court erred in denying his 

motion to dismiss the indictment for attempted murder because 

that indictment was impermissibly obtained by the Commonwealth 

in retaliation for his decision to go to trial rather than 

accept the prosecutor's proposed plea bargain and plead guilty 

to the rape and abduction charges. The Commonwealth's decision 

to bring the additional charge, Leonard maintains, was motivated 

by actual vindictiveness, as evidenced by the prosecutor's 

threat to obtain the indictment for attempted murder if a plea 

agreement could not be reached and the prosecutor's timing in 

making that threat and obtaining the additional indictment. 

Accordingly, Leonard concludes, the Commonwealth violated his 

due process rights in obtaining the indictment for attempted 

murder and the trial court erred in refusing to dismiss it. We 

disagree. 

 "In our system [of justice], so long as the prosecutor has 

probable cause to believe that the accused committed an offense 

defined by statute, the decision whether or not to prosecute, 

and what charge to file or bring before a grand jury, generally 

rests entirely in his discretion." Bordenkircher v. Hayes, 434 

U.S. 357, 364 (1978). Such discretion is not unlimited, 

however. For example, a prosecutor may not punish a defendant 

for doing "what the law plainly allows him to do" or retaliate 

against him for relying on his legal rights. Id. at 363. Such 

- 7 - 
punishment or retaliation constitutes "a due process violation 

of the most basic sort." Id. "But in the 'give-and-take' of 

plea bargaining, there is no such element of punishment or 

retaliation so long as the accused is free to accept or reject 

the prosecution's offer." Id.

 In Bordenkircher, the prosecutor, acting on a threat he 

made during plea negotiations, obtained an indictment for a 

crime carrying a mandatory life sentence after the defendant 

refused to accept the prosecutor's proposed plea bargain and 

plead guilty to the original charge, which carried a maximum 

sentence of ten years and was based on the same conduct as the 

additional charge. Id. at 358-59. Although the prosecutor 

admitted the purpose of his threat to reindict the defendant on 

the new, more serious charge was to discourage the defendant 

from exercising his right to a trial, the United States Supreme 

Court concluded there was no prosecutorial vindictiveness and, 

thus, no due process violation. Id. at 365. 

 In reaching that conclusion, the Supreme Court noted that, 

"by tolerating and encouraging the negotiation of pleas, this 

Court has necessarily accepted as constitutionally legitimate 

the simple reality that the prosecutor's interest at the 

bargaining table is to persuade the defendant to forgo his right 

to plead not guilty." Id. at 364. The Supreme Court further 

noted, in distinguishing the conduct of the prosecutor in the 

- 8 - 
case before it from that conduct in other cases where 

prosecutorial vindictiveness was found to have occurred, that 

[w]hile the prosecutor did not actually 

obtain the [additional] indictment until 

after the plea conferences had ended, his 

intention to do so was clearly expressed at 

the outset of the plea negotiations. [The 

defendant] was thus fully informed of the 

true terms of the offer when he made his 

decision to plead not guilty. This is not a 

situation, therefore, where the prosecutor 

without notice brought an additional and 

more serious charge after plea negotiations 

relating only to the original indictment had 

ended with the defendant's insistence on 

pleading not guilty. 

Id. at 360. 

 Later, in explaining the decision it reached in 

Bordenkircher, the United States Supreme Court stated as 

follows: 

 The outcome in Bordenkircher was 

mandated by this Court's acceptance of plea 

negotiation as a legitimate process. In 

declining to apply a presumption of 

vindictiveness, the Court recognized that 

"additional" charges obtained by a 

prosecutor could not necessarily be 

characterized as an impermissible "penalty." 

Since charges brought in an original 

indictment may be abandoned by the 

prosecutor in the course of plea 

negotiation—in often what is clearly a 

"benefit" to the defendant—changes in the 

charging decision that occur in the context 

of plea negotiation are an inaccurate 

measure of improper prosecutorial 

"vindictiveness." An initial indictment—

from which the prosecutor embarks on a 

course of plea negotiation—does not 

necessarily define the extent of the 

legitimate interest in prosecution. For 

just as a prosecutor may forgo legitimate 

- 9 - 
charges already brought in an effort to save 

the time and expense of trial, a prosecutor 

may file additional charges if an initial 

expectation that a defendant would plead 

guilty to lesser charges proves unfounded. 

* * * * * * * 

 . . . A prosecutor should remain free 

before trial to exercise the broad 

discretion entrusted to him to determine the 

extent of the societal interest in 

prosecution. An initial decision should not 

freeze future conduct. As we made clear in 

Bordenkircher, the initial charges filed by 

a prosecutor may not reflect the extent to 

which an individual is legitimately subject 

to prosecution. 

United States v. Goodwin, 457 U.S. 368, 378-82 (1982) (footnotes 

omitted). 

Bordenkircher and Goodwin make clear, then, "that a 

prosecutor, in the context of plea negotiations, [may] threaten 

to bring a more severe indictment against a defendant to 

pressure him into pleading guilty . . . ." United States v. 

Williams, 47 F.3d 658, 662 (4th Cir. 1995). Accordingly, "[i]f 

a prosecutor brings additional charges after a defendant refuses 

to accept a plea bargain, a court [may not] presume that the 

additional charges are an impermissible penalty for the 

defendant's refusal." Id. at 661. The defendant "must show 

that a prosecutor's decision was motivated by actual 

vindictiveness." Id. at 662. "A prosecutor's threat to bring a 

more severe indictment if the defendant refuses to cooperate 

does not amount to vindictiveness as long as the defendant, 

- 10 - 
should he refuse to cooperate, is not treated worse than he 

would have been if no plea bargain had been offered." Id.

 Here, Leonard made no showing that the Commonwealth's 

decision to obtain the indictment for attempted murder was 

motivated by actual vindictiveness. Indeed, the relevant 

circumstances in this case are nearly identical to those in 

Bordenkircher. After obtaining indictments against Leonard for 

rape and abduction with intent to defile, the Commonwealth 

informed Leonard, in the course of ongoing pretrial plea 

negotiations, that it was going to seek an additional indictment 

against him for attempted murder if a plea agreement could not 

be reached. When Leonard refused to accept the Commonwealth's 

proposed plea bargain and plead guilty to the charges of rape 

and abduction with intent to defile, the Commonwealth obtained 

an indictment for attempted murder prior to trial. 

 It is undisputed that Leonard was legitimately subject to 

prosecution on the attempted murder charge. Thus, the 

Commonwealth could have obtained an indictment on that charge 

when it obtained the earlier indictments for rape and abduction 

with intent to defile. Hence, in obtaining the attempted murder 

indictment after its initial expectation that Leonard would 

plead guilty to the rape and abduction charges proved unfounded, 

the Commonwealth treated Leonard no worse than he would have 

undoubtedly been treated had no plea bargain been offered. 

- 11 - 
 Furthermore, although, as Leonard points out, the 

prosecution's intention to seek an additional indictment was not 

announced at the start of the plea negotiations in this case, as 

it had been in Bordenkircher, the Commonwealth did inform 

Leonard in the course of ongoing pretrial plea negotiations on 

the rape and abduction charges of its intention to do so. Thus, 

as in Bordenkircher, this was not a situation "where the 

prosecutor without notice brought an additional . . . charge 

after plea negotiations relating only to the original indictment 

had ended with the defendant's insistence on pleading not 

guilty." Bordenkircher, 434 U.S. at 360. Leonard "was thus 

fully informed of the true terms" of the Commonwealth's plea 

offer and was free to accept or reject that offer "when he made 

his decision to plead not guilty." Id.

Leonard further points to the fact the Commonwealth waited 

until a week before the trial on the rape and abduction charges 

was scheduled to start to obtain the attempted murder indictment 

as evidence of the Commonwealth's actual vindictiveness. The 

Commonwealth's timing, he argues, "forced" him to ask for a 

continuance of that trial and thus extended his stay in jail 

awaiting the resolution of the rape and abduction charges.3

 We agree with the trial court's determination that the 

circumstances of this case "do not rise to the level of a due 

 3

 The initial rape and abduction charges that are the 

subject of this claim were, we note, later nolle prossed, by 

agreement of the parties, because they had been improperly 

- 12 - 
- 13 - 

process violation." The record reveals the Commonwealth and 

Leonard engaged in ongoing plea negotiations in this case over 

the course of several months. Those negotiations commenced 

prior to the preliminary hearing held on November 9, 1999. 

Following Leonard's indictment on November 15, 1999, for rape 

and abduction with intent to defile, the trial court set a trial 

date of December 21, 1999. Prior to that trial date, the 

Commonwealth sought and obtained a continuance of the trial to 

January 31, 2000. The Commonwealth indicated at the time that 

it intended to seek an additional indictment against Leonard as 

a second-time violent sexual offender under Code § 18.2-67.5:3, 

which carries a mandatory life sentence. Plea negotiations over 

the next several weeks focused on that possible course of 

action. Upon subsequently learning, however, that Leonard's 

prior convictions did not warrant the enhanced penalty provided 

for in Code § 18.2-67.5:3, the Commonwealth indicated it would 

not pursue such an indictment. 

 Following further unsuccessful negotiation, Leonard 

obtained a continuance of the trial to March 1, 2000. On 

February 16, 2000, the Commonwealth informed Leonard of its 

intention to seek an indictment against him for attempted murder 

if the parties could not reach a plea agreement. When Leonard 

informed the Commonwealth he would not plead guilty, the 

Commonwealth proceeded to obtain an attempted murder indictment 

 

certified to the grand jury by the general district court. 
from the first available grand jury on February 22, 2000. On 

February 25, 2000, Leonard sought and obtained a continuance of 

the trial on the rape and abduction charges so that all three 

charges could be tried together. 

 We observe nothing in these circumstances, reflecting as 

they do the unexceptional ebbs and flows of a continuing plea 

negotiation, that warrants the conclusion that the 

Commonwealth's timing in obtaining the indictment for attempted 

murder a week before the trial on the rape and abduction charges 

was set to commence constituted actual vindictiveness. Not only 

did the Commonwealth inform Leonard well before the trial on the 

rape and abduction charges was scheduled to start of its 

intention to obtain the indictment for attempted murder if plea 

negotiations failed, it obtained that indictment a week before 

the trial's scheduled start from the first available grand jury 

following the failure of the parties' final plea negotiations. 

 Furthermore, the trial court was clearly prepared to set the 

attempted murder charge for a separate trial and thus allow the 

trial on the rape and abduction charges to go forward as 

scheduled, had that been Leonard's preference. Instead, 

preferring to have all three charges tried together, Leonard 

requested the trial on the rape and abduction charges be 

continued, thus resulting in his continued incarceration on those 

charges. Accordingly, the trial court properly rejected 

Leonard's claim on such grounds. See Manns v. Commonwealth, 13 

- 14 - 
Va. App. 677, 680, 414 S.E.2d 613, 615 (1992) (holding that a 

party may not take advantage of a situation he invited).

 We conclude, therefore, that the Commonwealth's conduct in 

this case, which, like the prosecution's conduct in 

Bordenkircher, "no more than openly presented the defendant with 

the unpleasant alternatives of forgoing trial or facing [an 

additional] charge[] on which he was plainly subject to 

prosecution," did not constitute actual prosecutorial 

vindictiveness. Bordenkircher, 434 U.S. at 365. Thus, we hold 

the trial court did not err in refusing to dismiss the 

indictment for attempted murder. 

III. EVIDENCE OF ATTEMPTED ESCAPE 

 Leonard next contends the trial court erred in allowing the 

Commonwealth to cross-examine him about his attempt to escape 

from jail. Because he was being held at the time of the escape 

attempt on multiple charges, some of which were unrelated to 

this case, and was not charged with attempted murder, it could 

not be shown, he argues, that he attempted to escape to avoid 

prosecution on the rape, abduction with intent to defile, and 

attempted murder charges. Thus, he concludes, the evidence of 

his escape attempt was not relevant to show his consciousness of 

guilt as to those charges and was therefore inadmissible. We 

disagree. 

 "The admissibility of evidence is within the broad 

discretion of the trial court, and a ruling will not be 

- 15 - 
disturbed on appeal in the absence of an abuse of discretion." 

Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 

(1998). "[A] trial court 'by definition abuses its discretion 

when it makes an error of law.'" Shooltz v. Shooltz, 27 

Va. App. 264, 271, 498 S.E.2d 437, 441 (1998) (quoting Koon v. 

United States, 518 U.S. 81, 100 (1996)). In determining whether 

the trial court made an error of law, "we review the trial 

court's . . . legal conclusions de novo." Timbers v. 

Commonwealth, 28 Va. App. 187, 193, 503 S.E.2d 233, 236 (1998). 

 "As a general rule, only under limited circumstances may 

evidence of other offenses by an accused be admitted to prove 

the offense at bar." Langhorne v. Commonwealth, 13 Va. App. 97, 

101, 409 S.E.2d 476, 479 (1991). However, "[a]lthough flight to 

avoid prosecution is evidence of another crime, it is 

nevertheless admissible to show a consciousness of guilt." Id.

at 102, 409 S.E.2d at 479. Indeed, "'it is today universally 

conceded that the fact of an accused's flight, escape from 

custody, resistance to arrest, concealment, assumption of a 

false name, and related conduct, are admissible as evidence of 

consciousness of guilt, and thus of guilt itself.'" Id. at 102, 

409 S.E.2d at 480 (quoting United States v. Ballard, 423 F.2d 

127, 133 (5th Cir. 1970)). 

 Moreover, evidence of an accused's attempt to escape from 

jail before trial is relevant to prove flight to avoid 

prosecution on the charge for which the accused was 

- 16 - 
incarcerated, and is thus admissible to show a consciousness of 

guilt. See Anderson v. Commonwealth, 100 Va. 860, 862-63, 42 

S.E. 865, 865 (1902) (holding that the trial court did not err 

"in permitting the introduction of evidence showing that 

[defendant], six weeks after the homicide with which he [was] 

charged, and twelve days before the term of the court at which 

he was tried began, attempted to break jail and escape"),

overruled on other grounds by Kelley v. Commonwealth, 140 Va. 522, 

125 S.E. 437 (1924). As the Supreme Court of Virginia explained 

in Anderson: 

When a suspected person attempts to escape 

or evade a threatened prosecution, it may be 

argued that he does so from consciousness of 

guilt; and though the inference is by no 

means strong enough by itself to warrant a 

conviction, yet it may become one of a 

series of circumstances from which guilt may 

be inferred. An attempt to escape or evade 

prosecution is not to be regarded as a part 

of the res gestae, but only as a 

circumstance to be considered by the jury 

along with the other facts and circumstances 

tending to establish the guilt of the 

accused. The nearer, however, to the 

commission of the crime committed, the more 

cogent would the circumstance that the 

suspected person attempted to escape, or to 

evade prosecution, but it should be 

cautiously considered, because it may be 

attributable to a number of other reasons, 

than consciousness of guilt. 

 

Id. at 863, 42 S.E. at 865. 

 In Anderson, the defendant was being held in jail at the 

time of the escape attempt on a single charge of murder and was 

subsequently prosecuted at trial on that charge alone. Id. at 

- 17 - 
862-63, 42 S.E. at 865. Thus, the inferential connection 

between the defendant's escape attempt and his consciousness of 

guilt as to the murder charge was readily apparent. 

 Here, however, the connection between Leonard's escape 

attempt and the charges on which he was tried is not quite as 

obvious. At the time of the attempted escape, Leonard was being 

held on the instant rape and abduction with intent to defile 

charges, as well as on charges of unauthorized use of a vehicle 

and violation of the terms of his parole. Leonard was not on 

trial in this case on the latter two charges. In addition, 

Leonard had not yet been charged with attempted murder when he 

attempted to escape.

 Leonard argues that, in light of these circumstances, it is 

impossible to reasonably infer that his attempted escape was 

necessarily related to the rape, abduction, and attempted murder 

charges. It cannot be concluded, he asserts, that, in 

attempting to escape from jail, he sought to avoid prosecution 

on the rape and abduction charges, rather than on the 

unauthorized use of a vehicle and parole violation charges. 

Furthermore, he continues, it cannot be concluded that he 

attempted to escape to avoid prosecution on the attempted murder 

charge because he had not yet even been charged with that crime 

when he made the attempt. 

 "'A court will generally scrutinize the facts of each case 

to determine whether the jury should be given the opportunity to 

- 18 - 
draw [an] inference of guilt from the defendant's flight.'" 

Langhorne, 13 Va. App. at 102-03, 409 S.E.2d at 480 (quoting 

United States v. Martinez, 681 F.2d 1248, 1257 (10th Cir. 

1982)). 

 In Langhorne, the defendant objected to the admission of 

evidence showing that he attempted to flee when the police 

stopped the car in which he was riding. Id. at 100, 409 S.E.2d 

at 478. The defendant argued that such evidence was 

inadmissible to show his consciousness of guilt because it was 

not necessarily related to the distributing heroin and 

conspiring to distribute heroin charges for which he was on 

trial. Id. Given that he had multiple charges pending against 

him and was on "Richmond's top ten most wanted list" when he 

fled, the jury could not reasonably infer, he argued, that he 

fled to avoid arrest on the heroin and conspiracy charges, 

rather than the other pending charges. Id. Finding the 

evidence of the defendant's flight was properly admitted, we 

observed the defendant could not "avoid the inferences which the 

fact finder may draw from his actions because other charges were 

pending against him and he may have also been evading those 

charges." Id. at 103, 409 S.E.2d at 480. 

 Scrutinizing the facts of the present case, we cannot say 

the trial court abused its discretion in allowing the jury to 

consider the evidence of Leonard's attempt to escape from jail 

as evidence of his consciousness of guilt as to the rape and 

- 19 - 
abduction with intent to defile charges, even though he was also 

incarcerated at the time of the attempted escape on two other 

charges. The offenses of rape and abduction with intent to 

defile both carry a maximum sentence of life imprisonment. See

Code § 18.2-61; Code § 18.2-48 and Code § 18.2-10. Thus, in 

light of the seriousness of those charges, it defies logic to 

suggest, as Leonard does, that the jury could not reasonably 

infer he attempted to escape from jail to avoid prosecution on 

those charges simply because he was also charged with two lesser 

offenses at the time. 

 Likewise, we cannot say the trial court abused its 

discretion in allowing the jury to consider the evidence of 

Leonard's attempted escape as evidence of his consciousness of 

guilt as to the attempted murder charge. Attempted murder 

carries a maximum sentence of ten years. See Code §§ 18.2-32, 

18.2-26, and 18.2-10. Although he was not yet charged with that 

offense when he attempted to escape from jail, Leonard clearly 

was aware, at the time, that the police had information 

connecting him to that crime and that he would likely be 

prosecuted for it.4

 

- 20 - 

4

 Indeed, not only was the attempted murder charge based on 

the same factual predicate as the rape and abduction charges, 

the evidence shows that Leonard discovered he had not actually 

killed S.T. only in talking to the police following his arrest 

for the rape and abduction of S.T. Having agreed to speak with 

the police, Leonard, upon being shown a letter written by the 

victim describing what Leonard had done to her, told the 

interviewing officer, "[T]here's no way that the victim could 
 We hold, therefore, that the trial court did not err in 

admitting evidence of Leonard's attempt to escape from jail to 

prove flight to avoid prosecution and thus show his 

consciousness of guilt concerning the offenses of which he was 

subsequently convicted in this case. 

IV. OPINION OF NURSE EXAMINER ON CAUSATION OF SEXUAL INJURIES 

 Finally, Leonard contends the trial court erred in 

permitting a sexual assault nurse examiner to express an expert 

medical opinion on the causation of S.T.'s sexual injuries. 

Only a medical doctor, Leonard argues, may testify as an expert 

regarding the cause of a victim's injury. 

During the pendency of this appeal, the Supreme Court of 

Virginia issued its decision in Velazquez v. Commonwealth, 263 

Va. 95, 557 S.E.2d 213 (2002), which controls the disposition of 

this issue. The Court held in Velazquez that

a [sexual assault nurse examiner] need not 

be licensed to practice medicine to express 

an opinion on the causation of injuries in 

the context of an alleged sexual assault, 

nor does the expression of such an opinion 

by a [sexual assault nurse examiner] in a 

trial constitute the unlawful practice of 

medicine. 

Id. at 104, 557 S.E.2d at 218. 

 

have written that letter because she was dead." Leonard 

demanded proof that S.T. was not dead. When the officer showed 

Leonard a photograph of the injured victim, Leonard responded, 

"I cannot talk to you. I'm dead in the water." 

- 21 - 
 Because, in the present case, the sexual assault nurse 

examiner expressed an opinion on the causation of S.T.'s 

injuries in the context of an alleged sexual assault, we find no 

error in the judgment of the trial court on this issue. 

 Accordingly, we affirm Leonard's convictions. 

Affirmed. 

- 22 -