Daryl Landon Carter v. Commonwealth ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Bumgardner and Felton
Argued at Salem, Virginia
DARYL LANDON CARTER
MEMORANDUM OPINION * BY
v. Record No. 2506-01-3 CHIEF JUDGE JOHANNA L. FITZPATRICK
OCTOBER 29, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
Joseph W. Milam, Jr., Judge
J. Patterson Rogers, 3rd, for appellant.
Eugene Murphy, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Daryl Landon Carter (appellant) was convicted in a bench
trial of two counts of aggravated sexual battery in violation of
Code § 18.2-67.3, two counts of indecent liberties with a minor in
violation of Code § 18.2-370.1 and one count of forcible sodomy in
violation of Code § 18.2-67.1. The sole issue on appeal is
whether the evidence of penetration is sufficient to sustain the
sodomy conviction. We find the evidence was insufficient to prove
penetration, and we reverse the conviction.
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
therefrom. See Juares v. Commonwealth, 26 Va. App. 154, 156,
493 S.E.2d 677, 678 (1997). So viewed, the evidence showed that
appellant sexually molested D.W., who was ten years old at the
time of the abuse.
D.W. testified that on at least three occasions in December
2000 appellant fondled her. Specifically, appellant "pulled my
pants down, and then he put his hand on my private . . . he just
sort of put his hand and just rubbed up and down, and then he
put his mouth . . . in between my legs." When asked what
appellant had done with his mouth, D.W. stated,
he put his mouth and sort of . . . when he
did, he . . . he sort of put his tongue on
my mouth . . . on my private, and he sort of
rub . . . he sort of went up and down [with]
his tongue and his mouth.
Appellant also "put his private on my private . . . [and] [h]e
sort of rubbed up and down." On another occasion, appellant
pulled D.W.'s pajama bottoms down, "put his private on [D.W.'s]
private and sort of took his hand and rubbed up and down with
his hand." Afterward appellant told D.W., "Don't tell or I'll
go to jail forever." In yet another encounter, appellant "put
his mouth and private on [her sister] and he had did the same
with me." Appellant then forced the sister to "put her mouth on
[D.W.'s] private and made me put my mouth on [the sister's]
private."
Appellant contends this evidence is insufficient to prove
the requisite penetration for a sodomy conviction. Appellant
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argues that the evidence proved only that he put his mouth and
tongue on D.W.'s "private." She never testified that appellant
licked her vagina or penetrated any portion of her genitalia.
D.W. did not display any knowledge of the structure of her
anatomy, merely referring to everything as her "private." Even
viewed in the light most favorable to the Commonwealth, D.W.'s
testimony, without other evidence of penetration, fails to prove
a necessary element of sodomy. We agree.
"When the sufficiency of the evidence is challenged on
appeal, we determine whether the evidence, viewed in the light
most favorable to the prevailing party, the Commonwealth, and
the reasonable inferences fairly deducible from that evidence
support each and every element of the charged offense." Haskins
v. Commonwealth, 31 Va. App. 145, 149-50, 521 S.E.2d 777, 779
(1999). "In so doing, we must discard the evidence of the
accused in conflict with that of the Commonwealth, and regard as
true all the credible evidence favorable to the Commonwealth and
all fair inferences that may be drawn therefrom." Watkins v.
Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998).
"The judgment of a trial court sitting without a jury is
entitled to the same weight as a jury verdict and will not be
set aside unless it appears from the evidence that the judgment
is plainly wrong or without evidence to support it." Reynolds
v. Commonwealth, 30 Va. App. 153, 163, 515 S.E.2d 808, 813
(1999).
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An accused shall be guilty of forcible
sodomy if he or she engages in cunnilingus,
fellatio, anallingus, or anal intercourse
with a complaining witness who is not his or
her spouse, or causes a complaining witness,
whether or not his or her spouse, to engage
in such acts with any other person, and
. . . [t]he complaining witness is less than
thirteen years of age.
Code § 18.2-67.1(A). "[P]enetration is an essential element of
the crime of sodomy." Ryan v. Commonwealth, 219 Va. 439, 444,
247 S.E.2d 698, 702 (1978). Nevertheless, the "penetration need
be only slight." Jett v. Commonwealth, 29 Va. App. 190, 194,
510 S.E.2d 747, 749 (1999) (internal quotations omitted).
Appellant was specifically charged with cunnilingus, which
"involves stimulation of the vulva or clitoris and the vulva
encompasses the outermost part of the female genitalia." Horton
v. Commonwealth, 255 Va. 606, 613, 499 S.E.2d 258, 261 (1998).
"[P]enetration of any portion of the vulva is sufficient to
prove sodomy by cunnilingus." Id. "The fact that the man's
penis is placed on, not in, the woman's sexual organ is
insufficient to establish the element of penetration." Moore v.
Commonwealth, 254 Va. 184, 189, 491 S.E.2d 739, 741 (1997); see
also Love v. Commonwealth, 18 Va. App. 84, 441 S.E.2d 709 (1994)
(the same degree of penetration is required for both rape and
sodomy). The analysis of Moore is dispositive of the instant
case.
Additionally, as in Moore, "there is no indication whatever
in the record that the young victim here was aware of the
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intricate structure of her sexual organ." Moore, 254 Va. at
190, 491 S.E.2d at 742. Throughout her testimony D.W. referred
only to her "private," without any further description. Compare
Horton, 255 Va. at 613, 499 S.E.2d at 262 (victim testified
defendant licked her vagina and her understanding of her anatomy
was "evidenced by the fact that she herself used the words
'vagina' and 'penis' in describing [defendant's] attempt to
insert his penis into her vagina"); Love, 18 Va. App. at 86, 441
S.E.2d at 710 (victim testified that defendant "licked her 'down
where [her] private part was,' such that his tongue went . . .
'kind of inside of [her] crack.' She also testified that his
tongue touched her 'hole' but that she knew it did not go inside
'because [she] did not feel it go in.'"). D.W. testified that
appellant touched her in the "area" of where she "go[es] to the
bathroom," and no circumstantial evidence provided further proof
of penetration. See Morrison v. Commonwealth, 10 Va. App. 300,
301, 391 S.E.2d 612, 612 (1990) ("in the context of a sodomy
charge, evidence of the condition, position, and proximity of
the parties . . . may afford sufficient evidence of
penetration"); Ryan, 219 Va. at 445, 247 S.E.2d at 702 (showing
an "active course of abuse" permits the fact finder to infer
that there was penetration); Moore, 254 Va. at 191, 491 S.E.2d
at 742 ("medical or forensic evidence" can be used to prove
penetration). D.W. did not testify that appellant licked her
private. Instead, the only evidence is that appellant "sort of
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went up and down [with] his tongue and his mouth." While this
testimony establishes contact, it does not establish
penetration. "Here, the victim's testimony does stand alone.
Consequently, we hold there was a failure of proof of
penetration as a matter of law." Moore, 254 Va. at 191, 491
S.E.2d at 742. Accordingly, we reverse and dismiss the sodomy
conviction.
Reversed and dismissed.
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