October 3, 2000 Professor Richard A. Williamson Mead Data Central, Inc. College of William and Mary Legal Data Collections Williamsburg, Virginia 23185 8891 Gander Creek Drive Miamisburg, Ohio 45342 Mr. David M. George Judicial Relations Counsel Elizabeth Oyster, Esq.

Editorial Department D-4 Geronimo Development Corp. West Publishing Company 606 25th Avenue, South Opperman Drive Suite 206 Eagan, Minnesota 55123 St. Cloud, Minnesota 56301 Paul Fletcher, Publisher Virginia Lawyers Weekly North Eighth Street Richmond, Virginia 23219 Re: Jack Enic Clark v. Commonwealth of Virginia Record No. 1425-97-4 Gentlemen and Ms. Oyster: I am enclosing to you a copy of an order entered by this Court in the above-referenced case on October 3, 2000. The Court has directed that this order be published in the appropriate volumes. I appreciate your cooperation in ensuring that publication is accomplished.

NOTE TO WEST PUBLISHING: THE COURT HAS DIRECTED THAT THIS ORDER BE PUBLISHED IN THE SAME ADVANCE REPORTS THAT CONTAIN THE OPINIONS DATED OCTOBER 3, 2000. THIS ORDER IS NOT TO BE WITHHELD FROM PUBLICATION IN THAT ADVANCE REPORT FOR ANY REASON.

Sincerely,

Marty K. P. Ring Deputy Clerk Enclosure MKPR:mfr Tuesday 3rd October, 2000.

Jack Enic Clark, Appellant, against Record No. 1425-97-4 Circuit Court Nos. 90834 and 90836 Commonwealth of Virginia, Appellee.

Upon a Rehearing En Banc Before Chief Judge Fitzpatrick, Judges Benton, Coleman, Elder, Bray, Bumgardner, Humphreys and Senior Judge Cole

Peter D. Greenspun (Peter D. Greenspun & Associates, P.C., on brief), for appellant.

John H. McLees, Jr., Senior Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

On November 30, 1999, a panel of this Court reversed and remanded the convictions of Jack Enic Clark for sodomy and statutory rape. See Clark v. Commonwealth, 31 Va. App. 96, 521 S.E.2d 313 (1999). We granted the Commonwealth's petition for rehearing en banc.

Upon rehearing en banc, the judgment of the trial court is affirmed without opinion by an evenly divided Court.

Accordingly, the opinion previously rendered by a panel of this Court on November 30, 1999 is withdrawn and the mandate entered on that date is vacated. The appellant shall pay to the Commonwealth of Virginia thirty dollars damages.

Chief Judge Fitzpatrick, Judges Coleman, Bumgardner and Humphreys voted to affirm said judgment.

Judges Benton, Elder, Bray and Senior Judge Cole voted to reversed the judgment of the trial court.

This order shall be published and certified to the trial court.

A Copy, Teste: Cynthia L. McCoy, Clerk By: Deputy Clerk