COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Bumgardner and Humphreys 

Argued at Salem, Virginia 

TORRENCE LAMONT SMITH 

 MEMORANDUM OPINION* BY 

v. Record No. 2319-00-3 JUDGE RUDOLPH BUMGARDNER, III 

 NOVEMBER 20, 2001 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE 

James F. Ingram, Judge 

 S. Jane Chittom, Appellate Defender (Public 

Defender Commission, on briefs), for 

appellant. 

 Stephen R. McCullough, Assistant Attorney 

General (Randolph A. Beales, Attorney 

General, on brief), for appellee. 

The trial court convicted Torrence Lamont Smith of robbery 

and attempted forcible sodomy. He maintains the evidence was 

insufficient to convict him of attempted forcible sodomy. We 

conclude the evidence proved the attempt and affirm the 

conviction. 

Late at night, the defendant approached the victim as she 

climbed the stairs to her apartment.1 The victim recognized the 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.

1

 "On appeal, 'we review the evidence in the light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom.'" Archer v. 

Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) 

(citation omitted). 
defendant but did not know him by name. He asked to use her 

bathroom, and she let the defendant into her apartment. Once 

inside the apartment, the defendant went to a window and started 

clicking an object in his pocket. The victim thought the 

clicking noise was a gun. The defendant stated, "I hate to say 

it but if you don't do what I say do, I'm gon' fuck you up." He 

then said, "Suck my dick." 

 The victim fled downstairs, and the defendant pursued. He 

caught her at the bottom of the stairs and started choking her 

when she screamed for help. The defendant thrust his hand in 

the victim's throat to stop the screaming, so she started 

kicking her neighbor's door. Eventually, the defendant twisted 

a necklace from the victim's neck and ran off. 

 The defendant concedes the evidence proves he intended to 

commit forcible sodomy. He contends, however, that the evidence 

does not prove that he committed any act in furtherance of the 

sexual act. He maintains to prove an attempt of a sex crime the 

evidence must show an act of a sexual nature. 

 "'An attempt is composed of two elements: the intention to 

commit the crime, and the doing of some direct act towards its 

consummation which is more than mere preparation but falls short 

of execution of the ultimate purpose.'" Hopson v. Commonwealth, 

15 Va. App. 749, 752, 427 S.E.2d 221, 223 (1993) (quoting 

Sizemore v. Commonwealth, 218 Va. 980, 983, 243 S.E.2d 212, 213 

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(1978)). Although the Commonwealth must prove an overt act in 

order to establish an attempt, "if 'the design of a person to 

commit a crime is clearly shown, slight acts done in furtherance 

of this design will constitute an attempt.'" Tharrington v. 

Commonwealth, 2 Va. App. 492, 494, 346 S.E.2d 337, 339 (1986) 

(quoting State v. Bell, 316 S.E.2d 611, 616 (N.C. 1984)). 

In this case, the defendant entered the victim's apartment 

by trickery and threatened to hurt her if she did not do as he 

commanded. He stated his intentions explicitly. When his 

victim ran, he caught her, and attacked violently. Only the 

victim's indomitable resistance prevented the defendant from 

subduing her. 

Forcible sodomy is a crime of violence that an accused must 

accomplish by force and against the will of the victim. In this 

case, the defendant announced his intention to commit sodomy by 

force. When the victim resisted, he proceeded to apply force to 

subdue her to his will just as he stated he would. Those acts 

were direct acts toward consummation of the crime, not mere 

preparation. The evidence proved "direct ineffectual acts 

toward the commission of the offense . . . ." Martin v. 

Commonwealth, 195 Va. 1107, 1112, 81 S.E.2d 574, 577 (1954). 

"Neither the ineffectuality of [the defendant's] acts nor the 

prevention of performance . . . was of a kind to rid his acts of 

their criminal character." Id. (citation omitted). 

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 The evidence was sufficient to prove beyond a reasonable 

doubt that the defendant committed attempted forcible sodomy. 

Accordingly, we affirm. 

Affirmed.

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