COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Annunziata 

Argued at Salem, Virginia 

LATOVIA JOEL WHITEHEAD 

 MEMORANDUM OPINION* BY 

v. Record No. 0576-95-3 JUDGE ROSEMARIE ANNUNZIATA 

 MAY 21, 1996 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE 

James F. Ingram, Judge 

 Lawrence D. Gott, Public Defender, for 

appellant. 

 

 Michael T. Judge, Assistant Attorney General 

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

brief), for appellee. 

 Appellant, Latovia Joel Whitehead, appeals his conviction of 

sodomy in violation of Code § 18.2-67.1. He contends the trial 

court erred in allowing his wife to testify against him. Finding 

no error, we affirm. 

 I. 

 The Commonwealth's evidence consisted solely of the 

testimony of appellant's wife, Rhonda Whitehead ("Rhonda"). 

Rhonda testified that she was married to appellant and that she 

and appellant were the parents of two girls, L., age 5, and a 

younger child, O. Appellant objected to further testimony on the 

ground of spousal privilege. The court overruled the objection, 

stating that an exception to the spousal privilege rule applied 

 

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

designated for publication. 
- 2 - 

because appellant was being prosecuted for an offense allegedly 

committed against his and his wife's minor child. 

 Rhonda testified that she lived in an apartment with the two 

girls and that appellant, who was not on the lease, stayed there 

occasionally. She further testified that on the afternoon of 

July 2, 1994 she asked appellant to watch the girls while she 

went to the store. When she returned, Rhonda noticed that the 

volume of the television was turned up and that the front door 

was locked. Upon entering, she found O. asleep on the couch but 

saw neither appellant nor L. Rhonda searched the apartment for 

the two and, upon reaching the bathroom, found the door locked. 

She unlocked and opened the door to see L. standing against the 

tub and appellant standing, with his penis in the child's mouth. 

 Rhonda asked appellant what he was doing, but he did not respond 

as he exited the bathroom. After "fussing" with his wife, 

appellant responded to her inquiry, stating that "she asked for 

it, and she wanted some." 

 II. 

 Code § 19.2-271.2 provides, in part: 

 In criminal cases husband and wife 

shall be allowed, and, subject to the 

rules of evidence governing other witnesses 

and subject to the exception stated in 

§ 8.01-398, may be compelled to testify in 

behalf of each other, but neither shall be 

compelled, nor, without the consent of the 

other, allowed, to be called as a witness 

against the other, except (i) in the case of 

a prosecution for an offense committed by one 

 against . . . a minor child of either, . . . . 

 In the prosecution for a criminal 

offense as set forth . . . above, each shall 
- 3 - 

be a competent witness except as to 

privileged communications. 

This statute protects two "separate and distinct" interests. See

Stewart v. Commonwealth, 219 Va. 887, 893, 252 S.E.2d 329, 333 

(1979); Church v. Commonwealth, 230 Va. 208, 212-13, 335 S.E.2d 

823, 826 (1985). One interest is "[t]he privilege of an accused 

to prevent his spouse from testifying against him." E.g., 

Church, 230 Va. at 212, 335 S.E.2d at 826. The other privilege 

"insur[es] the inviolability of confidential communications 

between spouses." Id.; see also Code § 8.01-398. 

 The statute sets out a clear exception to appellant's right 

to invoke his testimonial privilege inasmuch as he was prosecuted 

for an offense committed against his and his wife's minor child. 

 Code § 19.2-271.2; see also Cumbee v. Commonwealth, 219 Va. 

1132, 1137, 254 S.E.2d 112, 115-16 (1979). 

 Appellant's contention that his interspousal confidential 

communications privilege was violated is controlled by the 

holding in Church. Because appellant's objection at trial 

addressed only his testimonial privilege, his claim based on a 

violation of his interspousal confidential communications 

privilege is procedurally barred. See Rule 5A:18; Church, 230 

Va. at 212-13, 335 S.E.2d at 826. 

 We find no reason to invoke the ends of justice exception to 

Rule 5A:18. Privileged communications include "all information 

or knowledge privately imparted and made known by one spouse to 

the other by virtue of and in consequence of the marital relation 
- 4 - 

through conduct, acts, signs, and spoken or written words." 

Edwards v. Commonwealth, 20 Va. App. 470, 474, 457 S.E.2d 797, 

799 (1995) (interpreting privilege as set forth in Code 

§ 8.01-398(A)) (quoting Menefee v. Commonwealth, 189 Va. 900, 

912, 55 S.E.2d 9, 15 (1949)). Conduct which does not convey 

information to the other spouse, such as a husband's beating of 

his wife and daughter, is not privileged. Id. at 476, 457 S.E.2d 

at 800 (citing Osborne v. Commonwealth, 214 Va. 691, 692, 204 

S.E.2d 289, 290 (1974)). We find appellant's argument that by 

placing his penis in his daughter's mouth he communicated 

privileged information to his wife is meritless. 

 Furthermore, even assuming husband's conduct was a 

communication of information, the privilege only protects 

confidential communications "of a secret nature between husband 

and wife." Id. at 474, 457 S.E.2d at 800 (quoting Menefee, 189 

Va. at 907, 55 S.E.2d at 13). Admissibility depends on whether 

the communication was intended to be secret. Id. at 475, 457 

S.E.2d at 800. Here, the evidence supports the inference that 

appellant intended his "communication" to be a secret from his 

wife, not a secret between the two. 

 Finally, in light of Rhonda's testimony that she saw 

appellant with his penis in their daughter's mouth, any error of 

the trial court allowing wife to testify as to appellant's 

statement that "she asked for it, and she wanted some" is 

likewise harmless. See Lavinder v. Commonwealth, 12 Va. App. 
- 5 - 

1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc). 
- 6 - 

 Accordingly, appellant's conviction is affirmed. 

Affirmed.