COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Fitzpatrick 

Argued at Richmond, Virginia 

CLARENCE DUKE 

v. Record No. 0967-95-2 MEMORANDUM OPINION* BY 

 JUDGE JOHANNA L. FITZPATRICK 

COMMONWEALTH OF VIRGINIA JUNE 4, 1996 

FROM THE CIRCUIT COURT OF SUSSEX COUNTY 

Robert G. O'Hara, Jr., Judge 

 Connie Louise Edwards for appellant. 

 Eugene Murphy, Assistant Attorney General 

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

brief), for appellee. 

 Clarence Duke (appellant) was convicted in a bench trial of 

rape in violation of Code § 18.2-61 and abduction with intent to 

defile in violation of Code § 18.2-48. On appeal, he argues that 

the trial court erred in finding the evidence sufficient to prove 

that he committed rape, specifically the essential element of 

penetration. Because appellant failed to present this argument 

at trial, he is barred from now challenging the sufficiency of 

this evidence on appeal. 

 On September 10, 1994, the victim was in a motel parking lot 

when appellant drove up, engaged her in conversation, and then 

pulled her into his vehicle. Appellant drove onto I-95 going 

north and pulled over to the side of the highway a few miles 

outside of town. He forced the victim into the back of the car 

 

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

designated for publication. 
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and attempted to rape her, but was unable to penetrate her at 

that point. He then continued driving, forcing the victim to 

perform oral sex on him. Appellant pulled over again, had "sex" 

with the victim, and then let her go. 

 Appellant was charged with rape in violation of Code 

§ 18.2-61, abduction with intent to defile in violation of Code 

§ 18.2-48, and forcible sodomy in violation of Code § 18.2-67.1. 

 At trial, the victim testified that she protested appellant's 

advances and that he penetrated her when they had sex after 

pulling over a second time. Appellant testified that the victim 

initiated the sexual contact by performing oral sex on him and 

that he had sex with her. The Commonwealth introduced 

appellant's earlier statement, in which he admitted having sex 

with the victim. 

 At the end of the Commonwealth's evidence, appellant moved 

to strike, arguing that the Commonwealth had not established 

venue for the forcible sodomy charge. At the conclusion of all 

the evidence, appellant did not renew his motion to strike. 

Appellant did not challenge the sufficiency of the evidence of 

penetration during his motion to strike or during closing 

argument. The trial court found appellant guilty of rape and 

abduction with intent to defile, and sentenced him to twenty-five 

years for rape and twenty years with ten suspended for abduction. 

 The court dismissed the forcible sodomy charge. 

 "No ruling of the trial court . . . will be considered as a 
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basis for reversal unless the objection was stated together with 

the grounds therefor at the time of the ruling, except for good 

cause shown or to enable the Court of Appeals to attain the ends 

of justice." Rule 5A:18. "[I]n a bench trial, where a defendant 

wishes to preserve a sufficiency motion after presenting 

evidence, the defendant must make a motion to strike at the 

conclusion of all the evidence, present an appropriate argument 

in summation, or make a motion to set aside the verdict." Howard 

v. Commonwealth, 21 Va. App. 473, 478, 465 S.E.2d 142, 144 

(1995). Additionally, "a challenge to the sufficiency of the 

Commonwealth's evidence is waived if not raised with some 

specificity in the trial court." Mounce v. Commonwealth, 4 Va. 

App. 433, 435, 357 S.E.2d 742, 744 (1987). 

 Appellant failed to raise the issue of the sufficiency of 

the evidence of penetration to support his conviction for rape 

either in his motion to strike at the conclusion of the 

Commonwealth's evidence, during his closing argument, or in a 

motion to set aside the verdict. Thus, Rule 5A:18 bars our 

consideration of this question on appeal. Moreover, the record 

does not reflect any reason to invoke the good cause or ends of 

justice exceptions to Rule 5A:18. 

 Accordingly, the decision of the trial court is affirmed. 

 Affirmed. 
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BENTON, J., dissenting. 

 I would hold that the question of the sufficiency of the 

evidence to prove the charge of rape should be reached under "the 

ends of justice." Rule 5A:18. 

 It is only fair and proper to say that the 

point upon which we are [asked to reverse] 

the judgment does not seem to have been 

raised in the lower court. The point is one, 

however, which goes to the substance of the 

Commonwealth's case, and the failure to raise 

it at an earlier stage does not deprive the 

accused of the right to take advantage of it 

here. 

Davis v. Commonwealth, 132 Va. 521, 524, 110 S.E. 356, 357 

(1922). See also Johnson v. Commonwealth, 5 Va. App. 529, 

534-35, 365 S.E.2d 237, 240 (1988). This Court may review a 

judgment "to attain the ends of justice" whenever an accused "has 

been convicted of a crime of which under the evidence he could 

not properly be found guilty." Ball v. Commonwealth, 221 Va. 

754, 758-59, 273 S.E.2d 790, 793 (1981). 

 "One essential element of rape is penetration, however 

slight, of a vagina by a penis." Kehinde v. Commonwealth, 1 Va. 

App. 342, 345, 338 S.E.2d 356, 357 (1986). The testimony in this 

case established only that Duke and the victim "had sex." 

Convictions may not be based upon speculation, surmise, or 

conjecture. Thomas v. Commonwealth, 187 Va. 268, 272, 46 S.E.2d 

388, 391 (1948). "The Due Process Clause protects the accused 

against conviction except upon proof beyond a reasonable doubt of 

every fact necessary to constitute the crime with which he is 
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charged." In re Winship, 397 U.S. 358, 364, 25 L. Ed. 2d 368, 90 

S. Ct. 1068 (1970). As this Court stated when reversing a 

conviction to attain the ends of justice, "[i]n view of the 

direct evidence from the victim, there is reasonable doubt on an 

element essential to support appellant's conviction of [a sex 

offense]." Chrisman v. Commonwealth, 3 Va. App. 371, 378, 349 

S.E.2d 899, 903 (1986). 

 Because the evidence did not prove the essential element of 

penetration of the vagina by a penis, I would reverse the rape 

conviction.