COURT OF APPEALS OF VIRGINIA 

Present: Judge Bray, Senior Judges Duff and Overton 

Argued at Alexandria, Virginia 

LAWRENCE P. MEDICI 

 MEMORANDUM OPINION* BY 

v. Record No. 0527-98-4 JUDGE RICHARD S. BRAY 

 MAY 25, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

David T. Stitt, Judge 

 Jennifer A. Hess Smith, Assistant Public 

Defender, for appellant. 

 Daniel J. Munroe, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 A jury convicted Lawrence P. Medici (defendant) of rape, 

second or subsequent offense, sodomy by cunnilingus, second 

offense, sodomy by fellatio, second or subsequent offense, and 

attempted anal sodomy. On appeal, defendant complains that the 

trial court erroneously (1) permitted the Commonwealth to 

introduce evidence of prior rape convictions, (2) refused to 

permit a stipulation to such convictions, (3) denied a motion to 

dismiss the indictment because it did not specify an offense, 

(4) declined to strike two venirepersons for cause, (5) ruled 

that Code § 18.2-67.5:3 was constitutional, (6) admitted 

 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication. 
evidence previously ruled inadmissible, and (7) found the 

evidence sufficient to support the sodomy by cunnilingus 

conviction. Finding no error, we affirm the convictions. 

 The parties are fully conversant with the record, and this 

memorandum opinion recites only those facts necessary to a 

disposition of the appeal. 

The victim, Pauline Finn, was acquainted with defendant as 

her supplier of illicit drugs. On the evening of May 21, 1997, 

defendant telephoned Finn and advised that “he had an amazing 

amount of cocaine . . . and . . . [she] should come over.” Finn 

went to defendant’s home the following morning, was admitted by 

defendant, and observed a mirror covered with white powder in 

the basement area of the house. As Finn scrutinized the white 

substance, defendant ordered that she remove her clothing. Finn 

initially refused, but complied after noticing that defendant 

was armed with a knife. Defendant subsequently forced Finn to 

engage in fellatio, cunnilingus, and sexual intercourse, and 

attempted anal sodomy. Finn immediately reported the incident 

to her “high school guidance counselor,” and defendant was 

subsequently charged and convicted for the instant offenses. 

I. 

Defendant first argues that, during the guilt phase of his 

bifurcated trial, the trial court improperly admitted evidence 

of prior rape convictions in California. 

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Although . . . evidence of other crimes is 

inadmissible if relevant only to show a 

probability of guilt or a propensity for 

criminal conduct, evidence of other crimes 

“is properly received if it is relevant and 

probative of an issue on trial, such as an 

element of the offense charged or the 

required predicate for enhanced punishment.” 

Berry v. Commonwealth, 22 Va. App. 209, 213, 468 S.E.2d 685, 687 

(1996) (quoting Pittman v. Commonwealth, 17 Va. App. 33, 35, 434 

S.E.2d 694, 695 (1993)). “A prior conviction is used for 

‘sentence enhancement’ when it is admitted . . . during a trial 

to convict a defendant of violating a ‘recidivist statute,’ 

i.e., a statute that criminalizes the commission of a successive 

violation of a particular offense . . . .” Harris v. 

Commonwealth, 26 Va. App. 794, 803, 496 S.E.2d 165, 169 (1998) 

(citations omitted). “When sentence enhancement is an issue, 

the Commonwealth has the burden of proving the existence of 

defendant's prior, valid convictions . . . .” Id.

This Court has previously approved evidence of prior 

convictions during the Commonwealth’s case-in-chief in 

prosecutions under Code § 18.2-248 (second or subsequent offense 

for manufacturing, selling, giving, distributing or possessing 

with intent to manufacture, sell, give or distribute a 

controlled substance), Code § 18.2-104 (second or subsequent 

offense for misdemeanor larceny), and Code § 18.2-270 (second or 

subsequent offense for driving while intoxicated). See Berry, 

22 Va. App. at 213-14, 468 S.E.2d at 687 (Code § 18.2-248); 

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Pittman, 17 Va. App. at 35, 434 S.E.2d at 695 (Code § 18.2-104); 

Farmer v. Commonwealth, 10 Va. App. 175, 180-81, 390 S.E.2d 775, 

777-78 (1990), aff’d en banc, 12 Va. App. 337, 404 S.E.2d 371 

(1991) (Code § 18.2-270). 

Code § 18.2-67.5:3 prescribes an enhanced punishment for 

subsequent convictions of certain felonious sexual assault 

offenses, including rape. Thus, evidence of a prior conviction 

was necessary to prove the subject rape as a subsequent offense, 

and, therefore, properly admitted during the guilt phase of 

trial. To protect defendant from any attendant prejudice, the 

court appropriately instructed the jury not to consider the 

prior convictions as evidence that defendant committed the 

instant offense. 

 Defendant further argues that the prior rape convictions 

were inadmissible because the California statute is not 

“substantially similar” to Code § 18.2-61. See Code 

§ 18.2-67.5:31; Cox v. Commonwealth, 13 Va. App. 328, 329-31, 411 

S.E.2d 444, 445-46 (1991). In support of his assertion, he 

notes that Calf. Code § 261 criminalizes a range of conduct, 

including acts that are not violations of Virginia law. 

The record discloses that the prior convictions in issue 

resulted from rapes in violation of Calf. Code § 261(2), which 

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Code § 18.2-67.5:3(C) provides that, “[f]or purposes of 

this section, prior convictions shall include (i) adult 

convictions for felonies under the laws of any state or the 

United States that are substantially similar to those listed in 

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prohibits “an act of sexual intercourse accomplished with a 

person not the spouse of the perpetrator, . . . (2) [w]here it 

is accomplished against a person’s will by means of force or 

fear of immediate and unlawful bodily injury on the person of 

another.” Virginia Code § 18.2-61 provides, in pertinent part, 

that “[i]f any person has sexual intercourse with a complaining 

witness who is not his or her spouse . . . 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, . . . he or she shall be guilty of 

rape.” 

We acknowledge that the Calf. Code § 261 proscribes acts 

not embraced by Virginia’s statute; however, “‘only that 

prohibition of the other state’s law under which the person was 

convicted must substantially conform [to Code § 18.2-61].’” 

Honaker v. Commonwealth, 19 Va. App. 682, 684, 454 S.E.2d 29, 30 

(1995) (quoting Cox, 13 Va. App. at 331, 411 S.E.2d at 446). 

Clearly, the specific California convictions before the court 

resulted from violations of a statute that substantially 

conforms to Code § 18.2-61, and, therefore, provided a proper 

predicate to the instant conviction for rape as a second or 

subsequent offense. 

 

subsection B.” 

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 Defendant also argues that the prior rape convictions were 

inadmissible because the attendant orders were not properly 

authenticated. In support of his contention, defendant relies 

upon Carroll v. Commonwealth, which held an order not properly 

authenticated because there was no evidence that the person 

attesting was “authorized by law to act in the place of the 

clerk.”2 10 Va. App. 686, 691, 396 S.E.2d 137, 139 (1990). 

 Here, defendant’s prior convictions carried a stamp: 

“Allen Slater, Executive Officer and Clerk of the Superior Court 

of the State of California, in and for the County of Orange.” 

The order was impressed with the Orange County Superior Court 

seal, and the signature of Flora L. Perez appears in a space 

designated “Deputy.” Thus, “‘it plainly can be gathered from 

the . . . attestation . . . that [Ms. Perez] is the deputy clerk 

of [Orange] county, authorized by law to act in place of [her] 

principal,’” properly authenticating the document. Id. at 690, 

396 S.E.2d at 139-40 (quoting Hurley v. Charles, 112 Va. 706, 

710, 72 S.E. 689, 690-91 (1911)). 

 2

In Carroll, the order contained the following: 

 A COPY TESTE: 

 WALTON F. MITCHELL, JR., CLERK 

 CRAIG COUNTY CIRCUIT COURT 

 BY /s/ Peggy B. Elmore

10 Va. App. at 688, 396 S.E.2d at 138. 

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II. 

 Defendant next complains that the trial court erred in 

refusing to accept his offer to stipulate to the prior 

convictions, if convicted, during the sentencing phase of trial. 

However, it is well settled that the Commonwealth “is not 

obliged to enter into an agreement whereby it is precluded from 

putting on its evidence simply because the defendant is willing 

to make a qualified stipulation.” Glover v. Commonwealth, 3 Va. 

App. 152, 162, 348 S.E.2d 434, 441 (1986), aff’d, 236 Va. 1, 372 

S.E.2d 134 (1988); see Spencer v. Commonwealth, 240 Va. 78, 91, 

393 S.E.2d 609, 617 (“A defendant in a criminal case may not 

preclude the Commonwealth from introducing otherwise admissible 

evidence by offering to stipulate the facts which the evidence 

would show.”), cert. denied, 498 U.S. 908 (1990). 

III. 

 Defendant argues that the trial court erred in refusing to 

set aside the verdict because the indictment failed “to set 

forth a crime” in Virginia. However, defendant first raised 

this issue after the jury had rendered the verdict. Defendant 

was clearly apprised of the cause and nature of the offense, 

raised a vigorous defense at trial, and fully addressed the 

relevant issues. However, defendant failed to challenge the 

form or validity of the indictment, or any attendant defect or 

omission, prior to verdict. He, therefore, “waived his right to 

be more fully advised of ‘the cause and nature of his 

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accusation,’” and the trial court did not err in denying the 

motion. McDougal v. Commonwealth, 212 Va. 547, 549, 186 S.E.2d 

18, 20 (1972) (citation omitted). 

IV. 

 Defendant next assigns error to the trial court’s refusal 

to strike jurors Bennett and Lundquist for cause. 

 “The right to a trial by an impartial jury is guaranteed 

. . . .” Gosling v. Commonwealth, 7 Va. App. 642, 645, 376 

S.E.2d 541, 543 (1989) (citations omitted). “Through voir dire 

and other competent evidence, the trial court must examine the 

venirepersons for signs of a mind set that would prevent or 

substantially impair the performance of the duties of a juror in 

accordance with his instructions and his oath.” Swanson v. 

Commonwealth, 18 Va. App. 182, 185, 442 S.E.2d 702, 704 (1994) 

(citation and internal quotations omitted). 

“The partiality or impartiality of an individual juror is a 

factual issue best determined by the trial court.” Watkins v. 

Commonwealth, 229 Va. 469, 480, 331 S.E.2d 422, 431 (1985) 

(citation omitted), cert. denied, 475 U.S. 1099 (1986). 

“Because the trial judge has the opportunity . . . to observe 

and evaluate the apparent sincerity, conscientiousness, 

intelligence, and demeanor of prospective jurors first hand, the 

trial court’s exercise of judicial discretion in deciding 

challenges for cause will not be disturbed on appeal,” absent 

manifest error. Pope v. Commonwealth, 234 Va. 114, 123-24, 360 

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S.E.2d 352, 358 (1987) (citation omitted), cert. denied, 485 

U.S. 1015 (1988). Thus, “we must consider the ‘voir dire as a 

whole, . . .’ according the appropriate ‘deference to the trial 

court’s decision.’” Swanson, 18 Va. App. at 186, 442 S.E.2d at 

704 (citations omitted). 

 During voir dire, defense counsel inquired of the venire 

“whether any of you, or your close friends, or relatives, have 

been the victim of a crime.” After Ms. Bennett responded that 

her husband had been murdered, counsel proffered that the 

suspect in the murder was represented by the Public Defender’s 

Office, also counsel for defendant, and moved to strike her for 

cause. 

 However, in response to further inquiry by the 

Commonwealth, Ms. Bennett assured that she could set aside 

issues relating to the murder when hearing the evidence in the 

instant prosecution, would not be influenced by the role of the 

Public Defender, and could be fair and impartial, guided by the 

evidence and instructions. Noting that Ms. Bennett “was very 

adamant that she could be objective in this case,” the court 

denied defendant’s motion to strike her for cause, a decision 

supported by the record. 

 Mr. Lundquist, also challenged by defendant, responded 

affirmatively on voir dire when defendant asked, “Do you think 

that if you heard testimony from a Police Officer that you think 

he would be more credible, or more believable, simply because he 

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is a Police Officer?” During further questioning, counsel read 

a jury instruction to Mr. Lundquist, which addressed the jury’s 

role in assessing “the facts, the credibility of the witnesses, 

and the weight of the evidence,” and Mr. Lundquist responded, 

“See, all that gobble-de-gook; the Police Officer would have 

higher credibility, I suppose, based on his title and role,” 

prompting counsel’s motion to strike Mr. Lundquist for cause. 

However, when examined by the court to clarify his responses, 

Mr. Lundquist explained that his comments simply recognized a 

police officer as a “trained observer,” without attributing 

greater “credibility” to such testimony. 

 The trial court denied defendant’s motion to strike Mr. 

Lundquist, commenting that, 

I think once we got the semantics 

straightened out about what we were talking 

about, I think he was talking about what 

Police Officers are trained observers, and 

he flat out said that he could put Police 

Officers and lay witnesses on an even 

footing in terms of credibility, and even 

thought that Police Officers could be 

untruthful. 

 We recognize that, “[a]lthough jurors have a right and a 

duty to determine the credibility of witnesses in a particular 

case, giving unqualified credence to the testimony of a law 

enforcement officer based solely on the officer’s official 

status constitutes impermissible bias.” Gosling, 7 Va. App. at 

645, 376 S.E.2d at 544 (citing Mullis v. Commonwealth, 3 Va. 

App. 564, 571, 351 S.E.2d 919, 923 (1987)). Here, however, the 

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record, viewed in its entirety, clearly establishes that Mr. 

Lundquist was a conscientious and attentive juror, fully aware 

of his attendant duties and responsibilities and not predisposed 

to give unqualified credence to the testimony of a law 

enforcement officer. Upon clarification, it became apparent 

that Mr. Lundquist confused credibility and truthfulness with 

the weight to be accorded testimony. His responses confirmed 

that he would properly consider the testimony of police officers 

and lay witnesses “on an even footing.” Thus, the trial court 

did not abuse its discretion in denying the motion. 

V. 

 Defendant argues that the mandatory life sentence imposed 

by Code § 18.2-67.5:3 is unconstitutional. 

“In assessing the constitutionality of a statute or 

ordinance, courts must presume that the legislative action is 

valid. Consequently, the burden is on the challenger to 

demonstrate the constitutional defect.” Coleman v. 

Commonwealth, 5 Va. App. 459, 462, 364 S.E.2d 239, 241 (citation 

omitted), reh’g denied, 6 Va. App. 296, 368 S.E.2d 298 (1988). 

The Commonwealth “is allowed discretion in formulating its own 

legislative policies regarding the appropriate punishment for 

offenses.” Wolkind v. Selph, 473 F. Supp. 675, 679 (E.D. Va. 

1979), aff’d, 649 F.2d 865 (4th Cir. 1981); see Rummel v. 

Estelle, 445 U.S. 263, 274 (1980) (acknowledging reluctance to 

review legislatively mandated terms of imprisonment). “[O]nly 

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where the sentence petitioner has been required to serve is so 

grossly disproportionate to the offense committed as to shock 

the conscience of the Court will it be struck down as 

unconstitutional.” Wolkind, 473 F. Supp. at 679; see Harmelin 

v. Michigan, 501 U.S. 957, 1001 (1991) (concurring opinion of 

Kennedy, J.) (Eighth Amendment “forbids only extreme sentences 

that are ‘grossly disproportionate’ to the crime”). 

The offenses specified in Code § 18.2-67.5:3 involve second 

or subsequent offenses of violent sexual assault, including 

rape. We cannot conclude that the mandatory life sentence 

imposed by Code § 18.2-67.5:3 for a second or subsequent 

commission of such vile crimes is “grossly disproportionate” to 

the offense. See Harmelin, 501 U.S. at 994 (concluding that a 

mandatory life sentence is not unconstitutionally 

disproportionate to a first-time felony drug offense). 

VI. 

 Defendant also argues that the trial court erroneously 

admitted evidence of a taped conversation between defendant and 

Finn, the victim, after ruling it inadmissible during a pretrial 

motion in limine. The Commonwealth counters that defendant 

“opened the door” to the taped conversation by reference to it 

on cross-examination of the victim. 

 “The admissibility of evidence is within the broad 

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

disturbed on appeal in the absence of an abuse of discretion.” 

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

(1988) (citation omitted). “‘Cross-examination on a part of a 

transaction enables the opposing party to elicit evidence on 

redirect examination of the whole transaction at least to the 

extent that it relates to the same subject.’” Briley v. 

Commonwealth, 221 Va. 532, 540, 273 S.E.2d 48, 53 (1980) 

(citation omitted), cert. denied, 451 U.S. 1031 (1981); see

Lockhart v. Commonwealth, 251 Va. 184, 184, 466 S.E.2d 740, 740 

(1996). 

Defense counsel asked Finn several questions pertaining to 

her statements during the taped conversation, without explaining 

the circumstances. Defendant’s inquiries included: 

So, you weren’t angry when you said, “Well, 

then you must be pretty f--- up, that must 

be some good God damn good baking soda. 

Let’s see does it dissolve in any way shape 

or form? Tastes like absolutely nothing at 

all. It was chalk dust.” You weren’t mad 

when you said that? 

Finn answered, “Of course I had to pretend like I was mad 

because I couldn’t let him know that the cops were listening on 

the phone.” Clearly, defendant pursued such evidence to 

discredit the victim, a circumstance that permitted the 

Commonwealth to rebut with introduction of the tape itself. 

 Defendant’s complaint that the evidence upset his defense 

“strategy,” developed in reliance upon the court’s prior ruling 

to exclude the tape, is without merit. In answer to this 

argument below, the trial court offered defendant the 

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opportunity to recall the victim and undertake further 

examination of the witness, thereby remediating any prejudice to 

defendant’s strategy. Moreover, the tape was relevant and 

material because defendant admitted certain acts subject to the 

instant prosecution. 

Under such circumstances, the court correctly admitted the 

tape into evidence. 

VII. 

 Finally, defendant argues that the evidence was 

insufficient to convict him of sodomy by cunnilingus, a 

violation of Code § 18.2-67.1. When the sufficiency of the 

evidence is challenged on appeal, we must review the evidence in 

the light most favorable to the Commonwealth, disturbing a 

jury’s verdict only if plainly wrong or without evidence to 

support it. See Code § 8.01-680; Martin v. Commonwealth, 4 Va. 

App. 438, 443, 358 S.E.2d 415, 418 (1987). 

 “‘Penetration is an essential element of the crime of 

sodomy[;]’ [h]owever, . . . the penetration ‘need only be 

slight.’” Horton v. Commonwealth, 255 Va. 606, 612, 499 S.E.2d 

258, 261 (1998) (citations omitted). “‘[P]enetration of any 

portion of the vulva, which encompasses the “external parts of 

the female sex organs considered as a whole” and includes, 

beginning with the outermost parts, the labia majora, labia 

minora, hymen, vaginal opening and vagina is sufficient’ to 

establish the element of penetration.” Moore v. Commonwealth, 

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254 Va. 184, 190, 491 S.E.2d 739, 742 (1997) (quoting Love v. 

Commonwealth, 18 Va. App. 84, 88, 441 S.E.2d 709, 712 (1994)). 

“‘Penetration of the vaginal opening . . . clearly [is] not 

required.’” Jett v. Commonwealth, 29 Va. App. 190, 195, 510 

S.E.2d 747, 749 (1999) (en banc) (citation omitted) (alterations 

in original). 

Evidence that defendant licked the victim’s vagina is 

sufficient to establish penetration of the vulva or outermost 

portion of the genitalia, an act of sodomy by cunnilingus in 

violation of Code § 18.2-67.1. See Horton, 255 Va. at 613-14, 

499 S.E.2d at 261-62; Ryan v. Commonwealth, 219 Va. 439, 441, 

444, 247 S.E.2d 698, 700, 702 (1978). Finn testified that 

defendant “started on [her,] . . . [when] [h]e put his mouth on 

[her] vagina, [h]e was licking around and touching.” Thus, her 

testimony was sufficient to support defendant’s conviction for 

sodomy by cunnilingus. 

 Accordingly, we affirm the convictions. 

 Affirmed.

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