William C. Penley v. Commonwealth of Virginia ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Senior Judge Duff
Argued at Richmond, Virginia
WILLIAM C. PENLEY
MEMORANDUM OPINION *
v. Record No. 1880-97-2 BY JUDGE CHARLES H. DUFF
SEPTEMBER 8, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
L. A. Harris, Jr., Judge
John M. Wright, Jr. (Downs and Wright, on
brief), for appellant.
Pamela A. Rumpz, Assistant Attorney General
(Mark L. Earley, Attorney General; Steven A.
Witmer, Assistant Attorney General, on
brief), for appellee.
William C. Penley appeals his convictions for attempted
taking of indecent liberties with children. He asserts that the
evidence was insufficient to prove an attempt, and insufficient
to prove that he was acting with lascivious intent. We disagree
and affirm.
"Where the sufficiency of the evidence is challenged after
conviction, it is our duty to consider it in the light most
favorable to the Commonwealth and give it all reasonable
inferences fairly deducible therefrom." Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
So viewed, the evidence proved that on the morning of
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
November 6, 1996, thirteen-year-old J.G. and her eleven-year-old
sister, H.G., were waiting for their school bus when Penley drove
by them. Penley turned around in a driveway, then drove back to
the girls and asked "[h]ave you ever seen a dick before?" When
the girls turned away, he said "[n]o, I'm serious, have you ever
seen one?" J.G. then said "[n]o," and Penley responded "[w]ould
you like to see one?" Both girls responded "[n]o."
At that moment, a car driven by the girls' neighbor
approached the area, and Penley drove away quickly. J.G.
testified that Penley looked in his rear view mirror as the
neighbor's car approached. Because of his position in the car,
the sisters could not see Penley's body much below his shoulders,
and Penley never got out of the car.
Kay Miles testified that on Monday, November 4, 1996, she
noticed an unfamiliar car backing out of her neighbor's driveway.
The driver of the car, whom Miles subsequently identified as
Penley, then backed in and out of Miles' driveway. Miles
proceeded out of her driveway on her way to drop her daughter off
at the school bus stop. She testified that Penley went in the
same direction, that he subsequently pulled in and out of another
driveway before finally parking his car on the side of the road.
Miles stated that Penley parked facing--and approximately twenty
feet away from--Miles' daughter's bus stop. Although Penley did
not get out of his car, Miles testified that he appeared to stare
at the children as they boarded the school bus. Miles testified
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that her daughter's bus stop was approximately three miles from
J.G. and H.G.'s bus stop.
Investigator Morris arrested Penley on November 12, 1996,
and questioned him regarding the November 6, 1996 incident.
Penley explained that he had been in the victims' neighborhood
while looking for his former boss. He initially told Morris that
he stopped and spoke to the victims because he thought he heard
them call him a "dick." Penley subsequently agreed with Morris
that it would have been impossible for him to hear the girls say
anything when he first drove by because his car window nearest to
them was closed, and he was playing his radio.
Penley testified that he thought he heard one of the girls
say "dick" and that he made the offending statements to the
victims because he was frustrated and angry. In a written
statement provided to Morris on November 12, 1996, Penley
indicated that he confronted the victims because he "was bored
and curious." Penley further wrote that he had driven away from
the victims quickly because he was "very nervous" and that he
realized what he had done "was wrong."
Penley admitted being in Miles' neighborhood on November 4,
1996, and being behind a bus that morning, although he denied
purposely following it. He further admitted that he was not in
the Brookland Middle School area (where both victims and Miles'
daughter attended school) on Tuesday and that he knew Tuesday was
a school holiday.
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In finding Penley guilty, the trial judge stated that he did
not believe Penley's testimony. The trial judge further found
that the victims, Miles, and Morris had testified credibly.
A. Sufficiency of the Evidence to Prove an Attempt
A defendant is guilty of taking indecent liberties if he,
"with lascivious intent," exposes his genital parts to a child
under the age of fourteen years to whom he is not married. Code
§ 18.2-370. To convict a defendant of attempted taking of
indecent liberties, the Commonwealth must prove "the intention to
commit the crime, and the doing of some direct act towards [sic]
its consummation which is more than mere preparation but falls
short of execution of the ultimate purpose." Sizemore v.
Commonwealth, 218 Va. 980, 983, 243 S.E.2d 212, 213 (1978).
"To prove an attempt, the Commonwealth must demonstrate a
direct, ineffectual act that 'must go beyond mere preparation and
be done to produce the intended result.'" Jordan v.
Commonwealth, 15 Va. App. 759, 762, 427 S.E.2d 231, 233 (1993)
(citation omitted). "'[I]t may be said that preparation consists
in devising or arranging the means or measures necessary for the
commission of the offense and that the attempt is the direct
movement toward the commission after the preparations are made.'"
Granberry v. Commonwealth, 184 Va. 674, 678, 36 S.E.2d 547, 548
(1946) (citation omitted). "'[T]here must be some appreciable
fragment of the crime committed, it must be in such progress that
it will be consummated unless interrupted by circumstances
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independent of the will of the attempter, and the act must not be
equivocal in nature.'" Lewis v. Commonwealth, 15 Va. App. 337,
340, 423 S.E.2d 371, 373 (1992) (citation omitted).
The evidence proved that, after passing the victims, Penley
turned around in a driveway and returned to the location where
they were standing. He asked them twice if they had ever seen a
"dick," and when they responded "no," asked if they wanted to see
one. This latter inquiry reasonably could be interpreted as an
attempt by appellant to entice the victims to approach his car.
The trial court could infer beyond a reasonable doubt that this
crime would have been consummated had a neighbor not approached.
Penley's actions went beyond mere preparation, and instead,
constituted "direct movement" toward completion of the crime.
B. Sufficiency of the Evidence Proving Lascivious Intent
The word "lascivious" is not defined in
the statute, and must therefore be given its
ordinary meaning in determining the
legislative intent in the use of the word in
this particular statute. As so determined,
the word "lascivious" describes a state of
mind that is eager for sexual indulgence,
desirous of inciting to lust or of inciting
sexual desire and appetite.
McKeon v. Commonwealth, 211 Va. 24, 27, 175 S.E.2d 282, 284
(1970).
The Supreme Court has identified four factors that can be
utilized in proving lascivious intent: 1) whether the defendant
was sexually aroused when he performed the act; 2) whether he
made any gestures to himself or the victim; 3) whether he made
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any improper remarks to the victim; and 4) whether he asked her
to do anything wrong. See Campbell v. Commonwealth, 227 Va. 196,
199, 313 S.E.2d 402, 404 (1984). "[P]roof of any one factor can
be sufficient to uphold a conviction under [Code § 18.2-370]."
Id. at 200, 313 S.E.2d at 404.
"Because direct proof of intent is often impossible, it must
be shown by circumstantial evidence." Servis v. Commonwealth, 6
Va. App. 507, 524, 371 S.E.2d 156, 165 (1988). "When a
conviction is based upon circumstantial evidence, such evidence
'is as competent and is entitled to as much weight as direct
evidence, provided it is sufficiently convincing to exclude every
reasonable hypothesis except that of guilt.'" Hollins v.
Commonwealth, 19 Va. App. 223, 229, 450 S.E.2d 397, 400 (1994)
(citation omitted). "The Commonwealth need only exclude
reasonable hypotheses of innocence that flow from the evidence,
not those that spring from the imagination of the defendant."
Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29
(1993).
"The fact finder is not required to believe testimony that
is inconsistent with the facts, may reject testimony that has
been impeached, and may rely solely upon circumstantial evidence
to prove an offense, provided the circumstances point unerringly
to prove the necessary elements of the offense." Doss v.
Commonwealth, 23 Va. App. 679, 685, 479 S.E.2d 92, 95 (1996).
"[F]light may be considered as evidence of guilt . . . ." Hope
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v. Commonwealth, 10 Va. App. 381, 386, 392 S.E.2d 830, 833 (1990)
(en banc). Likewise, "[a] defendant's false statements are
probative to show he is trying to conceal his guilt, and thus
[are] evidence of his guilt." Rollston v. Commonwealth, 11 Va.
App. 535, 548, 399 S.E.2d 823, 831 (1991).
Penley's questions to the thirteen-year-old and
eleven-year-old victims, asking them if they had ever seen a
"dick" and if they wanted to see one, were "improper remarks" and
constituted competent, circumstantial evidence of lascivious
intent. Penley then drove off quickly when a car approached.
Miles' testimony that Penley had been in her neighborhood on
November 4, 1996 and that he had watched several young girls
board a school bus was also probative of his intent. Finally,
Penley admitted that, while he was in the area on Monday and
Wednesday, he did not go there on November 5, which he knew to be
a school holiday.
Penley gave inconsistent statements to the police regarding
the incident. At first, he alleged that the girls had called him
a "dick." He then conceded that he would not have been able to
hear anything they said when he drove by. He then wrote out a
statement wherein he indicated that he had said these things
because he was "bored" and "curious." At trial, Penley testified
that he made the remarks because he was "frustrated" and "angry."
He also provided a suspect explanation for why he was in the
neighborhood in the first place. Accordingly, the Commonwealth's
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evidence was sufficient to prove Penley acted with lascivious
intent.
The trial judge had the opportunity to observe the demeanor
of the witnesses. The judge specifically stated that he found
Penley's testimony incredible and that he believed the testimony
of the victims, Miles, and Morris. "The weight which should be
given to evidence and whether the testimony of a witness is
credible are questions which the fact finder must decide."
Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598,
601 (1986). The Commonwealth's evidence was competent, was not
inherently incredible, and was sufficient to prove beyond a
reasonable doubt that Penley was guilty of attempted taking
indecent liberties with a child. Accordingly, the convictions
appealed from are affirmed.
Affirmed.
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Benton, J., dissenting.
"It is well established that an attempt is composed of two
elements: the intention to commit the crime, and the doing of
some direct act towards its consummation which is more than mere
preparation but falls short of execution of the ultimate
purpose." Sizemore v. Commonwealth, 218 Va. 980, 983, 243 S.E.2d
212, 213 (1978). To convict William C. Penley of attempting to
take indecent liberties with a child, the Commonwealth had to
prove beyond a reasonable doubt that Penley attempted to expose
his genital parts to a child under fourteen years of age. See
Code § 18.2-370(1). The evidence was insufficient to satisfy
that burden of proof.
Although the evidence might be sufficient to prove intent to
commit the crime, see Campbell v. Commonwealth, 227 Va. 196,
199-200, 373 S.E.2d 402, 404 (1984) (defendant's improper remarks
to the victim are sufficient to prove lascivious intent), intent
is but one element of the attempted offense. The evidence also
must prove "an overt but ineffectual act committed in furtherance
of the criminal purpose." Howard v. Commonwealth, 221 Va. 904,
906, 275 S.E.2d 602, 603 (1981). "While it is not necessary to
show that the conduct was thwarted at the instant of
consummation, the evidence must prove that the preparation
proceeded 'far enough towards the accomplishment of the desired
result to amount to the commencement of the consummation.'"
Lewis v. Commonwealth, 15 Va. App. 337, 340, 423 S.E.2d 371, 373
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(1992) (quoting Barrett v. Commonwealth, 210 Va. 153, 156, 169
S.E.2d 449, 451 (1969)).
Thus, the evidence "must demonstrate a direct, ineffectual
act that 'must go beyond mere preparation and be done to produce
the intended result.'" Jordan v. Commonwealth, 15 Va. App. 759,
762, 427 S.E.2d 231, 233 (1993) (citation omitted).
"'Preparation alone is not enough, there must be some appreciable
fragment of the crime committed, it must be in such progress that
it will be consummated unless interrupted by circumstances
independent of the will of the attempter, and the act must not be
equivocal in nature.'" Lewis, 15 Va. App. at 339-40, 423 S.E.2d
at 373 (citation omitted).
Penley committed no act that can be deemed "beyond mere
preparation." The girls testified that they could only see
Penley from the shoulders or stomach up. No evidence proved he
was undressed or undressing. The girls testified that Penley
never attempted to get out of the car. He did not ask the girls
to get into the car, and he did not offer them anything to get
them to come closer. No evidence proved that Penley made any
gestures such that would indicate he was about to expose his
genitals.
Because the record is devoid of any evidence that Penley
committed any "acts that can be characterized as well calculated
to accomplish the intended result" of exposing his genitals to
the girls, Tharrington v. Commonwealth, 2 Va. App. 491, 496, 346
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S.E.2d 337, 340 (1986), I would hold that the evidence was
insufficient to prove Penley committed a direct act toward the
commission of the offenses.
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