Kelly Lamont Poole v. Commonwealth of Virginia

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COURT OF APPEALS OF VIRGINIA Present: Judges Huff, Malveaux and Senior Judge Annunziata PUBLISHED Argued by videoconference KELLY LAMONT POOLE OPINION BY v. Record No. 1177-20-1 JUDGE MARY BENNETT MALVEAUX JULY 20, 2021 COMMONWEALTH OF VIRGINIA FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Michelle J. Atkins, Judge Charles E. Haden (Nikeva S. Bailey, on brief), for appellant. Timothy J. Huffstutter, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee. Kelly Lamont Poole (“appellant”) was convicted of rape, in violation of Code § 18.2-61. On appeal, he challenges the sufficiency of the evidence supporting his conviction. Appellant contends that the evidence failed to prove beyond a reasonable doubt that the sexual activity at issue was nonconsensual. He also argues that due to existing case precedent, the Commonwealth was required to prove additional elements of rape because the victim was his spouse. For the following reasons, we affirm. I. BACKGROUND “In accordance with familiar principles of appellate review, the facts will be stated in the light most favorable to the Commonwealth, the prevailing party at trial.” Gerald v. Commonwealth, 295 Va. 469, 472 (2018) (quoting Scott v. Commonwealth, 292 Va. 380, 381 (2016)). At the time of trial, T.T.1 and appellant had been married for six years and had two children together. T.T. described the marriage as “[v]ery rocky. Lots of infidelity. Lots of pain.” The couple discussed separating “on and off all the time for the whole marriage.” In April 2018, the couple lived together in a two-bedroom apartment. The children shared one bedroom while appellant and T.T. shared the other. T.T. testified that the couple “slept in the same bed but [had] separate blankets with a pillow between the two of us.” T.T. testified that on the evening of April 19, 2018, appellant “asked me or . . . suggested that we ha[ve] intercourse.” T.T. told appellant no and went to sleep. T.T. testified that she was not wearing clothes that night because she did not sleep in clothes as they made her feel restricted. During the night, T.T. woke to find appellant “on top of [her].” T.T. asked appellant to stop and shoved him. Appellant “had his arm . . . pushing [her] neck up and forcing [her] legs over and putting all his weight as [T.T.] was trying to move around and get out from underneath him.” To get appellant to stop, T.T. tried to put her legs up, “kneeing him as much as [she] could” and “pushing with [her] arms trying to twist away.” Appellant “counteracted” every move T.T. made. T.T. could not remove herself from underneath appellant, and “he just kept going.” T.T. “asked him to stop, and he told [her] no.” T.T. asked appellant to stop at least ten times. Appellant “kept just telling [T.T.] that he was going to, and it was [her] fault, and that he can have it, it’s his, he can take it.” While appellant was on top of T.T., he put his penis in her …

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