COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Bray and Annunziata 

Argued at Norfolk, Virginia 

BENNIE JAMES HOWARD 

 OPINION BY 

v. Record No. 2529-93-1 JUDGE LARRY G. ELDER 

 DECEMBER 29, 1995 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK 

William F. Rutherford, Judge 

 Duncan R. St. Clair, III; Charles A. Johnson 

 (St. Clair & Johnson, P.C., on briefs), for 

 appellant. 

 Marla Graff Decker, Assistant Attorney 

 General (James S. Gilmore, III, Attorney 

 General, on brief), for appellee. 

 Bennie James Howard (appellant) appeals his conviction for 

rape in violation of Code § 18.2-61. Appellant contends: 

(1) the trial court erred in failing to grant his motion to 

strike, which he made at the end of the Commonwealth's case-inchief; (2) insufficient evidence supported his rape conviction; 

and (3) the trial court erred in failing to grant his motion for 

a new trial based on after-discovered evidence. Because 

insufficient credible evidence existed from which the trial court 

could have found appellant guilty, we reverse and dismiss the 

conviction. 

 I. 

 FACTS 

 On December 2, 1992, the fifteen-year-old victim left school 

and accompanied Allen Elliott, a friend, and a group of young 
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people, whose ages ranged from fourteen to at least eighteen, to 

an apartment described in testimony as "Snap's apartment." The 

group arrived at Snap's apartment at approximately 9:30 a.m. The 

group that formed at Snap's apartment consisted of at least 

eleven women and men, including Allen Elliott, Mike Brockman, 

Lester Campbell, and appellant. The group socialized in the 

apartment, discussed sexual topics, and drank alcohol identified 

as "Mad Dog" from bottles and/or cups. Although the victim had 

tasted beer before December 2, 1992, she had never consumed any 

alcoholic beverages. 

 During the party, the victim went into the bathroom several 

times. Lester Campbell, appellant, and Mike Brockman entered the 

bathroom on one occasion while she was in there. When asked to 

testify specifically as to what events transpired in the 

bathroom, the victim said: 

I don't remember. I remember . . . standing up against 

the bathroom wall and Lester was like kissing me, and 

then all I remember is really laying on the floor and 

Lester was having sex with me and he was saying like, 

["]oh, this feels so good["] and things like that, and 

then later on I scooted my head up into the corner of 

the toilet and the bath tub and I was laying there and 

I don't remember that much. 

 The victim testified she did not think she attempted to "get 

up" during the incident. The victim then described appellant's 

entry into the bathroom: 

[Appellant] came in like into the bathroom, that is--I 

really don't--I don't know if he came in after or 

before Mike, but I know he came in. . . . He--I 

remember laying on the floor and I had my legs closed, 
 3 

and I remember opening--all I really remember is . . . 

[appellant] opened my legs and he started having sex 

with me he leaned overtop of me and he like--I don't 

know what he said. He like said something and I really 

don't remember that much. 

The victim testified that appellant placed his penis inside her 

vagina and that when someone attempted to initiate oral sex with 

her, she bit that person's penis. The victim admitted that she 

never specifically told appellant she did not wish to have sex 

with him, and she stated that no one physically restrained her. 

 When these sexual encounters ended, the victim left the 

bathroom wearing only a white t-shirt. She remained on the couch 

for a short time, calling for Allen Elliott to join her in 

another sexual encounter, and then returned to the bathroom. At 

this time, Mike Brockman had sexual intercourse with the victim. 

 The victim again left the bathroom, exited Snap's apartment 

wearing only her t-shirt, and knocked on a neighbor's door. The 

neighbor testified that she heard a knock at her door, followed 

by faint pleas for help. When the neighbor opened her front 

door, the victim collapsed into her apartment and onto the floor, 

where she began to vomit. After paramedics arrived, the victim 

told them, "it hurts, it hurts." When the victim's mother and 

father arrived at the neighbor's apartment and asked the victim 

what had transpired and who was responsible, she replied, 

"Bennie." 

 After being transported to the hospital, the victim was 

still unable to recognize her parents. The victim cried, moaned, 
 4 

and passed "in and out of consciousness." An attending physician 

testified the victim "smelled of alcohol," "was lethargic," "was 

difficult to arouse to verbal stimuli," and had a serum blood 

alcohol level of .12 milligrams per deciliter. The victim 

testified that she was "drunk" at the party, was taking 

"antidepressant" medication that day, did not have a condition 

which rendered her unable to recall events, and "felt fine" 

before she drank the alcohol at the party. 

 Mike Brockman testified that the victim flirted with 

appellant, Lester Campbell, and himself; that she willingly had 

sex with him; that appellant requested him to assist in removing 

the victim's pants; and that he observed appellant on top of the 

victim while the victim had her hands around appellant. 

 Appellant testified that the victim flirted with him, which 

was verified by several witnesses present at Snap's apartment. 

Appellant testified that the victim led him into the bathroom, an 

event also observed by several witnesses. Appellant accompanied 

the victim to the bathroom after she told him she wanted to make 

love, a statement overheard by a person present at the party. 

Appellant testified that the victim removed his penis from his 

pants and fondled it, and he had intercourse with the victim 

after Mike Brockman removed her pants. Appellant further 

testified that the victim never said "one way or another" whether 

he could have sex with her, and that she told him "to take it 

easy" when they were about to begin intercourse. Following 
 5 

intercourse, appellant asked the victim if she would give him a 

"blow job," but she said "no." 

 Ashley Alligood, another person at the party, testified that 

she heard the victim giggling while she was in the bathroom. 

Letha Elliott, another person at the party, testified that while 

the victim and Lester Campbell were in the bathroom, she 

overheard Lester Campbell ask the victim if she wanted him "to 

stop," to which the victim "said no." 

 Investigator Lawrence Hockman of the Norfolk Police 

testified that appellant made a sworn statement on December 5, 

1992, in which he denied having sexual intercourse with the 

victim. Appellant admitted having consensual sex with the victim 

after being confronted with a sworn statement from Lester 

Campbell disputing his original story. 

 At the end of the Commonwealth's case-in-chief, appellant 

moved to strike the evidence on the ground of insufficiency; the 

trial court overruled such motion. Appellant then presented 

evidence but did not make another motion to strike the evidence 

or make a motion to set aside the verdict. Closing arguments 

were not transcribed and are not included in the record. The 

trial court found appellant guilty of rape and sentenced him on 

December 16, 1993 to twenty-five years in prison, with fifteen 

years suspended. 

 On February 17, 1994, appellant filed a motion to set aside 

the verdict and to grant a new trial based on after-discovered 
 6 

evidence that called the victim's veracity into question. The 

trial court held a hearing on the matter on March 17, 1994 and 

denied appellant's motion on March 22, 1994, "after hearing said 

motions and arguments of counsel, and for reasons stated in the 

record." 
 7 

 II. 

MOTION TO STRIKE EVIDENCE/SUFFICIENCY 

 Appellant asserts that the trial court erred in finding, 

based upon the evidence presented, that appellant raped the 

victim, who claimed to be physically helpless. We agree. 

 First, the Commonwealth correctly argues that, as a 

procedural matter, "when [appellant] elect[ed] to present 

evidence on his behalf, he waive[d] the right to stand on his 

motion to strike the evidence made at the conclusion of the 

Commonwealth's case." McQuinn v. Commonwealth, 20 Va. App. 753, 

755, 460 S.E.2d 624, 625 (1995)(en banc)(citing Spangler v. 

Commonwealth, 188 Va. 436, 438, 50 S.E.2d 265, 266 (1948)); see

White v. Commonwealth, 3 Va. App. 231, 233, 348 S.E.2d 866, 867 

(1986); Rule 5A:18. 

 This Court has held that in 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. See

Campbell v. Commonwealth, 12 Va. App. 476, 478-81, 405 S.E.2d 1, 

1-3 (1991)(en banc); McGee v. Commonwealth, 4 Va. App. 317, 321, 

357 S.E.2d 738, 739-40 (1987); Rule 5A:18. In this case, after 

appellant presented evidence, he failed to renew his motion to 

strike or move to set aside the verdict. The trial transcript 

does not contain closing arguments. 
 8 

 Nevertheless, the sufficiency issue was preserved for 

appeal. The record reveals that after counsel for each side 

presented closing arguments, the trial court, sitting without a 

jury, stated that it needed to recess court until a further day 

to allow it the opportunity to examine the issue of the victim's 

physical helplessness. Specifically, the trial court stated: 

Gentlemen, I have gone over my notes. I have received 

the statements. There are certain other things and 

certain matters that I need to look into. I am going 

to take this under advisement until Tuesday afternoon. 

 If either of you desire to present any matters on 

physical helplessness, of course I know what the 

definition is. At the time of the offense the victim 

in this case had a condition which rendered her unable 

to communicate an unwillingness to engage in sex and 

the defendant knew or should have known that 

definition. I know the definition. So if you don't 

mind, both of you give me the definition, but I will 

give you a decision on this matter at four o'clock on 

Tuesday afternoon. 

 We believe the purpose of Rule 5A:18 was met in this bench 

trial. The trial court took the sufficiency issue under 

advisement in order to consider it intelligently and, if 

necessary, to take corrective action to avoid unnecessary 

appeals, reversals, and mistrials. Head v. Commonwealth, 3 Va. 

App. 163, 167, 348 S.E.2d 423, 426 (1986). 

 Reaching the merits of the issue, the Commonwealth did not 

prove beyond a reasonable doubt that the victim was physically 

helpless. Code § 18.2-61(a)(ii) states: 

If any person has sexual intercourse with a complaining 

witness who is not his or her spouse . . . and such 

act is accomplished . . . through the use of the 

complaining witness's mental incapacity or physical 
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helplessness . . . he or she shall be guilty of rape. 

(Emphasis added.) 

 Code § 18.2-67.10(4) defines "physical helplessness" as: 

unconsciousness or any other condition existing at the 

time of an offense under this article which otherwise 

rendered the complaining witness physically unable to 

communicate an unwillingness to act and about which the 

accused knew or should have known. 

(Emphasis added.) 

 Viewing the evidence in the light most favorable to the 

Commonwealth, the appropriate standard of review, we believe the 

Commonwealth did not prove its contention that the victim was so 

drunk that she could not give her consent to the acts committed 

by appellant. Miller v. Commonwealth, 181 Va. 906, 910, 27 

S.E.2d 57, 58 (1943). A plethora of facts supports this 

conclusion. The victim specifically testified that when someone 

attempted to initiate oral sex with her, she bit that person's 

penis. The victim also refused to consent to appellant's request 

to engage in oral sex, even though she did not refuse his 

attempts at sexual intercourse. Witnesses testified that the 

victim initiated sexual relations with various men at the party, 

specifically asking the appellant to "make love to [her]." 

Witnesses described the victim as sitting on appellant's lap, 

kissing him, and discussing sexual relations before leading him 

into the bathroom. Prior to engaging in sexual intercourse, the 

victim told appellant to "take it easy." After engaging in 

intercourse with appellant, the victim then initiated further 
 10 

sexual contact with other men. A witness testified that while 

the victim and Lester Campbell were in the bathroom shortly 

before appellant entered the bathroom, she overheard Campbell ask 

the victim if she wanted him "to stop," to which the victim "said 

no." 

 After engaging in sexual relations with appellant, the 

victim testified that she left the bathroom and sat on the couch. 

 At that point, the victim testified she was "yelling for Allen 

. . . I was saying that I wanted Allen." Subsequently, the 

victim admitted going into the bathroom with Mike Brockman and 

Allen Elliott and having sexual intercourse with Mike Brockman. 

 These actions are consistent with the behavior of someone 

who exercised volition over her decisions and actions, negating 

any reasonable inference of "being physically unable to 

communicate" as required by the statute. Diminished capacity or 

poor judgment is not the issue in this case. The question is 

whether the victim's use of alcohol made her "physically unable 

to communicate." The trial court, confronted with conflicting 

testimony, was required to make appropriate credibility 

determinations. However, the victim's testimony did not 

contradict the testimony furnished by numerous unimpeached 

defense witnesses. In fact, the victim, who testified that she 

could not remember many of the details of the alleged rape, 

testified consistently in many respects with the defense 

witnesses. 
 11 

 The Commonwealth asserts that the trial court reasonably 

could have inferred physical helplessness from the fact the 

victim went to a neighbor's apartment shortly after the alleged 

incident, partially clothed, before vomiting and collapsing. The 

Commonwealth highlights the fact that the victim could not 

recognize her parents for a period of hours and passed in and out 

of consciousness after being taken to the hospital, where doctors 

determined she was intoxicated. However, assuming the victim was 

intoxicated to the point of being physically unable to 

communicate at the time she exited the apartment, this does not 

prove she was intoxicated to the same degree when she engaged in 

sexual intercourse with appellant. Even in conjunction with 

other evidence, the Commonwealth's case was not strong enough to 

prove appellant's guilt beyond a reasonable doubt. Compare

Woodward v. Commonwealth, 12 Va. App. 118, 402 S.E.2d 244 

(1991)(affirming the appellant's rape conviction where the victim 

was physically helpless because she was asleep at the time of 

intercourse). In so holding, we find the following admonition 

appropriate: "[t]he conduct of [appellant] cannot be condoned. 

It was disgraceful. It was enough to shame one steeped in moral 

infamy. But he was not tried for that. Rape was the charge laid 

at his door and the Commonwealth's evidence fail[ed] to sustain 

it." Miller, 181 Va. at 910, 27 S.E.2d at 58. 

 III. 

 AFTER-DISCOVERED EVIDENCE 
 12 

 Because we reverse on the sufficiency issue, we need not 

address appellant's argument regarding after-discovered evidence. 

 We therefore reverse the conviction based on the foregoing 

reasons. 

Reversed and dismissed.