COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Willis and Bray 

Argued at Richmond, Virginia 

ROGER TALLEY CLIFTON 

v. Record No. 0103-95-3 OPINION BY 

 JUDGE JERE M. H. WILLIS, JR. 

COMMONWEALTH OF VIRGINIA MARCH 26, 1996 

FROM THE CIRCUIT COURT OF WASHINGTON COUNTY 

Charles H. Smith, Jr., Judge 

 C. David Whaley (Anthony G. Spencer; 

Morchower, Luxton & Whaley, on brief), for 

appellant. 

 Linwood T. Wells, Jr., Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 On appeal from his convictions in a jury trial of breaking 

and entering with intent to commit rape and of rape, Roger Talley 

Clifton contends (1) that the evidence is insufficient to support 

his convictions, and (2) that the trial court erred by refusing 

to give a jury instruction addressing his perception that the 

victim consented. We find no error and affirm the judgment of 

the trial court. 

 On appeal, we view the evidence in the light most favorable 

to the Commonwealth, granting to it all reasonable inferences 

fairly deducible therefrom. Higginbotham v. Commonwealth, 216 

Va. 349, 352, 218 S.E.2d 534, 537 (1975). "The jury's verdict 

will not be disturbed on appeal unless it is plainly wrong or 

without evidence to support it." Traverso v. Commonwealth, 6 Va. 

App. 172, 176, 366 S.E.2d 719, 721 (1988). 
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 "A conviction of rape may be sustained solely upon the 

credible testimony of the prosecutrix." Myers v. Commonwealth, 

11 Va. App. 634, 635, 400 S.E.2d 803, 804 (1991). "'[T]he 

credibility of witnesses and the weight to be given to their 

testimony are questions exclusively within the province of a 

jury.'" Id. (citation omitted). 

 The victim testified that on the morning of January 6, 1994, 

her next door neighbor, Clifton, entered her house. Her husband 

was at work and her three children were asleep. She testified 

that she was in the kitchen, dressed only in a nightgown and 

underclothes, when she heard a "peck." She looked out the window 

and saw Clifton standing outside pointing at the door. She 

gestured for him to wait. When she walked into the front room, 

Clifton was already standing inside the door. He grabbed her and 

began rubbing her breasts. After she told him "to quit," he 

twisted her arm behind her back and dragged her to the couch. He 

bent her over the couch, pulled her panties down, and announced 

his intention to have sexual intercourse with her. She 

testified, "I told him no, stop, and I started crying." However, 

she said that she did not resist, but submitted to sexual 

intercourse with Clifton because she was afraid for her children 

and did not want them to be awakened and see what was happening. 

 During the intercourse, the victim saw her husband drive by 

and saw Clifton's daughter outside the house. She told Clifton 

of this, but he continued to have intercourse until he was 
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"finished." When she told Clifton that a black Blazer was 

pulling into his driveway, he released her and went home. She 

denied having had intercourse with Clifton previously. 

 Clifton testified that he and the victim had prior sexual 

relations in 1991. He testified that on the morning in question, 

he walked out onto his front porch and saw the victim motioning 

to him through the window. He walked over to her house and 

entered through an open door. He testified that she said, "it 

has been a long time since we did anything." He testified that 

she pulled the elastic waistband of his pants out, put her hand 

inside his pants, and fondled him. She then lifted her 

nightgown, knelt on the couch, reached behind her, grabbed his 

penis, and inserted it. He testified that while they were having 

intercourse, the victim saw her husband's car go by outside and 

became nervous. He assured her that her husband would not arrive 

for a few minutes and said "[l]et's finish what we started here." 

 After Clifton left, the victim telephoned her sister-in-law 

and her husband. The sister-in-law corroborated this, testifying 

that the victim telephoned her and told her that Clifton had 

raped her. When the victim's husband arrived home, he called the 

police. Officer Snodgrass of the Abingdon Police Department 

testified that when he arrived at the victim's home, she was 

upset and crying. 

 The victim was taken to the hospital for a rape examination. 

 Dr. Moore, a medical expert who testified on Clifton's behalf, 
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stated that according to the victim's records, the examination 

did not disclose injury that would normally be expected to result 

from forcible sexual penetration. 

 I. 

 Clifton acknowledges that he had sexual intercourse with the 

victim, but contends that it was consensual. He argues that her 

non-resistance proves her consent. We disagree. 

 The victim was in her own home when Clifton entered. Her 

three small children were asleep in their rooms, and her husband 

was at work. Her account sufficiently described a rape and was 

not inherently incredible. Her explanation that she did not 

resist because she was afraid for her children was reasonable. 

"Her credibility and the weight to be given to her testimony were 

peculiarly within the province of the jury." Myers at 637, 400 

S.E.2d at 805. 

 II. 

 The trial court gave the following instructions: 

 Instruction 15. 

 The defendant is charged with the crime 

of rape. The Commonwealth must prove beyond 

a reasonable doubt each of the following 

elements of that crime: 

 (1) That the defendant had sexual 

intercourse with [the victim] who was not 

then the defendant's spouse; and 

 (2) That it was against her will and 

without her consent; and 

 (3) That it was by force, threat or 

intimidation. . . . 
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 Instruction B. 

 The Commonwealth need not show that [the 

victim] cried out or physically resisted the 

defendant in order to convict him of the 

offense for which he is charged, but the 

absence of such resistance may be considered 

to show that the act alleged was not against 

her will. 

 Instruction C. 

 Consent by [the victim] is an absolute 

bar to conviction of rape. If, after 

consideration of all the evidence, you have a 

reasonable doubt as to whether [the victim] 

consented to have intercourse with him, then 

you shall find him not guilty. 

 The trial court refused the following jury instruction, 

which was proposed by Clifton: 

 If you find the defendant actually believed 

that [the victim] was consenting to have 

sexual intercourse, and if his belief was 

reasonable, then you shall find him not 

guilty. The burden is on the Commonwealth to 

prove beyond a reasonable doubt that the 

defendant either knew that [the victim] did 

not consent to sexual intercourse, or that a 

reasonable person in the position of the 

defendant would have known that [the victim] 

did not consent to sexual intercourse. 

 Contending that the refusal of this instruction was error, 

Clifton argues that rape is a crime of intent and that the 

Commonwealth was required to prove that he knew or should have 

known that the intercourse was accomplished without the victim's 

consent. We disagree. 

 Although proof of rape requires proof of intent, the 

required intent is established upon proof that the accused 

knowingly and intentionally committed the acts constituting the 
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elements of rape. The elements of rape, as pertinent to this 

case, consist of engaging in sexual intercourse with the victim, 

against her will, by force, threat, or intimidation. See Code 

§ 18.2-61(A); Carter v. Commonwealth, 16 Va. App. 118, 127, 428 

S.E.2d 34, 41 (1993). In support of a consent defense, an 

accused may produce evidence of circumstances, including conduct1

or statements by the victim, tending to prove consent. He may 

testify as to his observations or perceptions of statements or 

conduct by the victim suggesting consent. However, the element 

to be proven by the Commonwealth is the fact that the intercourse 

was accomplished against the victim's will. The accused's 

perception may be evidence bearing on the sufficiency of the 

proof of this element, but it is not itself an element of the 

crime. See Bailey v. Commonwealth, 82 Va. 107, 111 (1886).2

 Instructions 15, B, and C properly and fully informed the 

jury of the elements the Commonwealth was required to prove in 

order to convict Clifton of rape. Instruction C specifically 

addressed Clifton's affirmative defense of consent. The jury was 

instructed that if it had a reasonable doubt whether the victim 

 

 1Contrary to the assertions in the dissent, we do not hold 

that the victim's conduct is irrelevant, nor do we hold that 

consent can never be shown in the absence of words indicating a 

willingness to engage in intercourse. We hold merely that the 

defendant's state of mind regarding the issue of consent is not

an element the Commonwealth is required to prove. 

 2Although the law no longer requires, as proof of nonconsent, the level of resistance recited in Bailey, the elements 

of rape remain the same. 
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consented to sexual intercourse with Clifton, it could not 

convict him of rape. 

 The judgment of the trial court is affirmed. 

 Affirmed.
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BENTON, J., dissenting. 

 I disagree with the majority's holding that the trial judge 

did not err in refusing Clifton's proposed jury instruction. The 

principle is well established that "[a] jury must be instructed 

on any theory or affirmative defense supported by the evidence." 

McCoy v. Commonwealth, 9 Va. App. 227, 229, 385 S.E.2d 628, 629 

(1989). Thus, this Court has "held that it was error not to give 

a separate instruction defining consent when 'consent was vital 

to [the] defense and was supported by sufficient evidence to make 

it a jury issue.'" Morse v. Commonwealth, 17 Va. App. 627, 637, 

440 S.E.2d 145, 151 (1994) (citation omitted). As in Morse, the 

instruction that Clifton tendered in this case and that was 

rejected by the trial judge addressed "the meaning of consent." 

Id. Moreover, Clifton's evidence supported the giving of an 

instruction that would have required the jury, if it accepted 

Clifton's evidence, to determine whether consent occurred in the 

absence of a verbal manifestation of consent. 

 The Commonwealth's evidence proved that Clifton, the 

complainant's neighbor, entered complainant's residence when she 

was home with her children. The complainant testified that after 

Clifton began rubbing her breasts, she told him "to quit." She 

further testified that she told Clifton "no, stop" when he 

forcefully grabbed her, moved her to a sofa, and stated that he 

intended to have sexual intercourse with her. She testified 
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further that her responses were tempered because she did not want 

her children to awake and witness the assault. She denied any 

prior sexual relations with Clifton. 

 In his defense, Clifton testified that the complainant 

invited him into her residence while she was wearing a nightgown. 

 He testified that the complainant talked about their prior 

sexual encounters, fondled him, and engaged in consensual sexual 

intercourse. He testified that she made no statement indicating 

that she was unwilling to have sexual intercourse. He further 

testified that the complainant became agitated and disengaged 

from the act when her husband drove by. She then expressed 

concern about her husband returning. 

 Clifton further testified that he had known the complainant 

for five years and that they had sexual intercourse on two 

previous occasions when her husband was absent. He also 

introduced in evidence a photograph of complainant in underwear 

and testified that she gave it to him. 

 Clifton's evidence included testimony by a physician that 

the complainant exhibited no signs of rape. The physician found 

no bruising marks on her wrists, arms, or body suggesting force. 

 The doctor also testified that the complainant exhibited no 

signs of stress, emotions, fear, or anger. When she was 

examined, all of her "vital signs" were normal. The doctor 

further testified that the examination was "not consistent with 

what [he had] seen in the past or would expect to see." 
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 The majority states that "Clifton argues that . . . the 

Commonwealth was required to prove that he knew the intercourse 

was accomplished without the victim's consent." I believe that 

the majority misperceives Clifton's argument. In his brief, 

Clifton argues that the jury could have found that he "actually 

and reasonably believed that she did [consent]." Clifton does 

not contend that the Commonwealth must affirmatively prove that 

he had an awareness that the complainant did not consent. 

Indeed, in Clifton's brief he acknowledges the principle that 

"[a] person who proceeds to accomplish intercourse, in the face 

of [the awareness that the consent of the other person is vital] 

. . . is a rapist unless he/she reasonably believed that his/her 

partner was truly consenting." Roger D. Groot, Criminal Offenses 

and Defenses in Virginia 380 (3d ed. 1994). 

 The majority also states that Clifton's proposed instruction 

was erroneous because, although "[t]he accused's perception may 

be evidence bearing on the sufficiency of proof, . . . it is not 

itself an element of the crime." Whether the complainant ever 

actually gave verbal consent obviously may be an important 

consideration in a rape prosecution; however, if the jury 

believed Clifton's testimony, it was required to assess a 

circumstance in which the complainant made no verbal statement 

bearing on consent. The jury should have been instructed on the 

question of how to determine whether the victim consented in the 

absence of a verbal expression. Without a clear verbal 
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manifestation of consent or lack thereof, the jury must consider 

the victim's conduct. I believe that question should be 

determined by the standard of a reasonable person. Thus, the 

ultimate issue posed by Clifton's evidence is whether a 

reasonable person in Clifton's position would have known, based 

upon the victim's conduct, that the complainant did not consent. 

 Under the majority's reasoning, rape must be classified as a 

strict liability crime because only "the fact" of consent can be 

proven. The logical extension of that reasoning is that neither 

the conduct of a complainant, no matter how inviting, nor the 

intent of an accused, no matter how reasonable, is relevant in 

determining the manner in which to instruct the jury concerning 

the sufficiency of the evidence to prove consent. 

 In Virginia, rape is statutorily defined in pertinent part 

as follows: 

 If any person has sexual intercourse with a 

complaining witness who is not his or her 

spouse . . . and such act is accomplished 

 . . . 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. 

Code § 18.2-61(A). Because the offense requires that the act be 

committed "against the complaining witness's will," id., rape, by 

definition, must occur without the consent of the complainant. 

See Groot, supra, at 380. Indeed, Virginia Model Jury 

Instruction No. 45.100 states that the act must be committed 

"against [the complainant's] will and without her consent." 
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 The issue that Clifton's appeal raises is what intent is 

required to prove rape. As Professor Groot notes, "rape is not a 

strict liability crime." Groot, supra, at 380. The Commonwealth 

must prove an intent by the accused. Id. However, the 

Commonwealth is not required to prove that an accused actually 

knew that the complainant did not consent. Id. The Commonwealth 

is only required to prove that under the circumstances the 

accused knew or should have known that the complainant did not 

wish to have sexual intercourse. This objective standard allows 

the fact finder to consider all of the circumstances, including 

the victim's conduct. 

 Clifton argues that the instruction he tendered was based on 

this theory of the evidence and that his testimony was sufficient 

to support the instruction. He further argues that he was 

entitled to have the jury instructed that he must be acquitted if 

he actually and reasonably believed that the complainant had 

consented. See Groot, supra, at 394 n.20. 

 Although no Virginia cases address in detail the issue of 

consent, cases from other states have done so. For example, the 

Supreme Court of Connecticut ruled as follows: 

 A finding that a complainant had consented 

would implicitly negate a claim that the 

actor had compelled the complainant by force 

or threat to engage in sexual intercourse. 

Consent is not made an affirmative defense 

under our sex offense statutes, so, as in the 

case of the defense of alibi, the burden is 

upon the state to prove lack of consent 

beyond a reasonable doubt whenever the issue 

is raised. 
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 While the word "consent" is commonly 

regarded as referring to the state of mind of 

the complainant in a sexual assault case, it 

cannot be viewed as a wholly subjective 

concept. Although the actual state of mind 

of the actor in a criminal case may in many 

instances be the issue upon which culpability 

depends, a defendant is not chargeable with 

knowledge of the internal workings of the 

minds of others except to the extent that he 

should reasonably have gained such knowledge 

from his observations of their conduct. The 

law of contract has come to recognize that a 

true "meeting of the minds" is no longer 

essential to the formation of a contract and 

that rights and obligations may arise from 

acts of the parties, usually their words, 

upon which a reasonable person would rely. 

Similarly, whether a complainant has 

consented to intercourse depends upon her 

manifestations of such consent as reasonably 

construed. If the conduct of the complainant 

under all the circumstances should reasonably 

be viewed as indicating consent to the act of 

intercourse, a defendant should not be found 

guilty because of some undisclosed mental 

reservation on the part of the complainant. 

Reasonable conduct ought not to be deemed 

criminal. 

 It is likely that juries in considering 

the defense of consent in sexual assault 

cases, though visualizing the issue in terms 

of actual consent by the complainant, have 

reached their verdicts on the basis of 

inferences that a reasonable person would 

draw from the conduct of the complainant and 

the defendant under the surrounding 

circumstances. It is doubtful that jurors 

would ever convict a defendant who had in 

their view acted in reasonable reliance upon 

words or conduct of the complainant 

indicating consent, even though there had 

been some concealed reluctance on her part. 

If a defendant were concerned about such a 

possibility, however, he would be entitled, 

once the issue is raised, to request a jury 

instruction that the state must prove beyond 

a reasonable doubt that the conduct of the 

complainant would not have justified a 

reasonable belief that she had consented. 
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State v. Smith, 554 A.2d 713, 717 (Conn. 1989)(citation omitted). 

 In his defense, Clifton testified concerning the facts and 

circumstances that he contends occurred on the day of the 

incident. His testimony described the complainant's attire and 

her conduct after, as he alleged, she invited him into her 

residence. His theory of defense was that, although the 

complainant did not verbally affirm her intentions, her conduct 

constituted consent or, at a minimum, gave rise to a reasonable 

belief in his mind that she consented. He contends that he 

actually believed from her conduct and surrounding circumstances 

that she consented and that his belief was reasonable. 

 The instruction that Clifton tendered was a correct 

statement of the law. It stated the following: 

 If you find that the defendant actually 

believed that [the complainant] was 

consenting to have sexual intercourse, and if 

his belief was reasonable, then you shall 

find him not guilty. The burden is on the 

Commonwealth to prove beyond a reasonable 

doubt that the defendant either knew that 

[the complainant] did not consent to sexual 

intercourse, or that a reasonable person in 

the position of the defendant would have 

known that [the complainant] did not consent 

to sexual intercourse. 

 The instruction gave meaning to consent and clearly informed 

the jury that Clifton's subjective belief was insufficient to 

find him not guilty. "When the accused claims mistake as to the 

fact of consent, he/she should at most obtain an instruction that 

he/she cannot be convicted if (1) he/she actually believed the 
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victim was consenting, and (2) the belief was reasonable." 

Groot, supra, at 394 n.20. The instruction informed the jury 

that it could convict only if the Commonwealth proved beyond a 

reasonable doubt that Clifton subjectively did not believe the 

victim had consented or that a reasonable person in Clifton's 

position could not have believed the victim had consented. Thus, 

the jury was required to consider all of the circumstances 

surrounding the case, including whether the victim actually 

consented. 

 The trial judge instructed the jury on consent as follows: 

 Consent by [the victim] is an absolute bar to 

conviction of rape. If, after consideration 

of all the evidence, you have a reasonable 

doubt as to whether [the victim] consented to 

have intercourse with him, then you shall 

find him not guilty. 

Under the circumstances of this case, this instruction, which is 

Instruction No. 45.700 from the Virginia Model Jury Instructions 

(Criminal), was inadequate because it leaves ambiguous whether 

consent may be manifested by conduct in the absence of verbal 

expression. If consent can be manifested by conduct and I 

believe it can be, the jury must be given guidance. The 

instruction should include the directive that conduct will 

suffice to establish consent but only if the defendant both 

sincerely and reasonably interprets it as consent. This 

instruction failed to inform the jury that if they found, as 

Clifton testified, that the complainant made no verbal 

expressions, they could nonetheless find from the facts and 
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circumstances of complainant's conduct that Clifton sincerely and 

reasonably believed she consented. 

 For these reasons, I would reverse the conviction and remand 

for a new trial.