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Howard v. Commonwealth12/29/1995
OPINION BY JUDGE LARRY G. ELDER
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-in-chief; (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 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, 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. Whe
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