Edward Eugene Cox, s/k/a, etc v. Commonwealth ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Clements and Senior Judge Coleman
Argued at Richmond, Virginia
EDWARD EUGENE COX, S/K/A
EDWARD EUGENE COX, JR.
MEMORANDUM OPINION * BY
v. Record No. 1898-00-2 SAM W. COLEMAN III
AUGUST 13, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
Rayner V. Snead, Judge Designate
Benjamin H. Woodbridge, Jr. (Woodbridge,
Ventura & Kelly, on brief), for appellant.
Eugene Murphy, Assistant Attorney General
(Randolph A. Beales, Attorney General, on
brief), for appellee.
Edward Eugene Cox, Jr. was convicted in a jury trial of
aggravated sexual battery in violation of Code
§ 18.2-67.3(2)(a). On appeal, Cox contends that the evidence is
insufficient to support his conviction because the proof failed
to establish that he touched the victim or forced her to touch
his intimate parts as defined by Code § 18.2-67.10(2). He
further asserts that the trial court erred by inserting language
in Instruction Number 9 which allowed the jury to convict if
they found that he forced the complaining witness to touch his
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
intimate parts or material directly covering such intimate
parts. He argues the evidence failed to support the giving of
such an instruction because no evidence proved that the victim
touched the defendant's intimate parts or material directly
covering his intimate parts or that Cox intended to force such a
touching. Finding no reversible error, we affirm.
BACKGROUND
On appeal, we review the evidence and all reasonable
inferences fairly deducible therefrom in the light most
favorable to the Commonwealth. Archer v. Commonwealth, 26
Va. App. 1, 11, 492 S.E.2d 826, 831 (1997). So viewed, the
evidence proved that during the evening hours of July 17, 1999,
a man assaulted the victim, a thirteen-year-old girl, as she
walked alone searching for a bathroom at the Indian Acres
Planned Camping Community, where she was visiting her mother.
The victim, while looking for the bathroom, "took a wrong turn"
and came to an area where she encountered the man who grabbed
her and pulled her to the ground. The assailant positioned
himself with his legs astraddle of her body with her hands
pinned down. She testified that her assailant then placed his
hand beneath her shirt and "under [her] bra." As the assailant
placed his hand under her bra, his fingernail scratched the
victim in the area between her breasts. The victim demonstrated
for the jury and the trial court the location of the scratch.
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She stated that her assailant smelled of alcohol. The victim
testified that her assailant fled after her screams alerted
neighbors.
She testified that she saw and was able to identify Cox as
her assailant by the light from a nearby lamppost. She further
testified that she was familiar with Cox, having seen him a
number of times at the campsite pool.
A security guard at the campsite was contacted and learned
from the victim what had happened. The security guard notified
a deputy sheriff, who interviewed the victim about the incident.
After interviewing the victim, the security guard went to Cox's
trailer located in the campsite. According to the deputy, Cox
smelled of alcohol, had bloodshot eyes and "he was staggering."
At trial, the security guard testified that when she
interviewed the victim at her trailer she observed a seven-inch
scratch "between her breasts."
The jury convicted Cox of aggravated sexual battery.
ANALYSIS
Sufficiency of the Evidence
To convict Cox of aggravated sexual battery, the
Commonwealth had to prove beyond a reasonable doubt that he
"sexually abuse[d] the complaining witness, . . . and [t]he act
[was] accomplished against the will of the complaining witness,
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by force, . . . and [t]he complaining witness [was] at least
thirteen but less than fifteen years of age." Code § 18.2-67.3.
Code § 18.2-67.10(6) defines "sexual abuse" as
an act committed with the intent to sexually
molest, arouse, or gratify any person,
where:
a. The accused intentionally touches the
complaining witness's intimate parts or
material directly covering such intimate
parts;
b. The accused forces the complaining
witness to touch the accused's, the
witness's own, or another person's intimate
parts or material directly covering such
intimate parts; or
c. The accused forces another person to
touch the complaining witness's intimate
parts or material directly covering such
intimate parts.
Code § 18.2-67.10(2) defines "intimate parts" as "the
genitalia, anus, groin, breast, or buttocks of any person."
Thus, the Commonwealth may prove a violation of Code § 18.2-67.3
by proving that the accused intentionally touched the victim's
"intimate parts or material directly covering such intimate
parts." Code § 18.2-67.10(6).
It is axiomatic that the Commonwealth bears the burden of
proving each element of an offense beyond a reasonable doubt.
Hill v. Commonwealth, 17 Va. App. 480, 484, 438 S.E.2d 296, 298
(1993). However, the Commonwealth need not prove each element
by direct evidence; instead, it may prove an element by
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circumstantial evidence, Reynolds v. Commonwealth, 9 Va. App.
430, 440, 388 S.E.2d 659, 665 (1990), which is entitled to the
same weight as direct evidence. Hall v. Commonwealth, 14
Va. App. 65, 69, 415 S.E.2d 439, 442 (1992). The fact finder
may draw reasonable inferences from circumstantial evidence and
may determine the weight to be ascribed to such evidence.
Schneider v. Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735,
736-37 (1985); Cook v. Commonwealth, 226 Va. 427, 432, 309
S.E.2d 325, 329 (1983).
At trial the Commonwealth proved that appellant forced the
victim to the ground, face-up, and straddled her; that while
holding her down, appellant reached into her shirt and under her
bra; that with his hand under her bra, appellant's fingernail
made a seven-inch scratch between the victim's breasts. The
jury and the trial judge observed the victim demonstrate the
location of the scratch. From this evidence the fact finder
could conclude that Cox necessarily touched the victim's breast,
the portion of the bra or material that covers the breast, or
both. The deliberate touching of either the breast or portion
of the material that covers the breast constitutes "sexual
abuse" and is a violation of Code § 18.2-67.10(6).
Cox contends that the victim did not testify explicitly
that he touched her breast or the material that covered her
breast, thus, the evidence does not prove beyond a reasonable
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doubt an actual touching. The evidence that Cox pulled the
victim to the ground, pinned her there by straddling her, placed
his hand under her blouse and under her bra and inflicted a
seven-inch scratch between her breasts is sufficient for the
fact finder to conclude that Cox touched the victim's breast or
material directly covering her breast. When viewed in the light
most favorable to the Commonwealth, the circumstantial evidence
was sufficient to establish beyond a reasonable doubt that
appellant touched the victim's intimate parts or the material
directly covering such intimate parts.
Jury Instruction Number 9
The trial judge modified the proffered jury instruction
defining "sexual abuse." The proffered instruction initially
defined "sexual abuse" only as "an act committed with the intent
to sexually molest, arouse or gratify any person, where the
defendant intentionally touches the complaining witness'
intimate parts or material directly covering such intimate
parts." The Commonwealth moved that the instruction be modified
to include those acts of "sexual abuse" set forth in Code
§ 18.2-67(6)(b), namely, where "[t]he accused forces the
complaining witness to touch the accused's . . . intimate parts
or material directly covering such intimate parts."
In support of giving the instruction, the Commonwealth
relied upon the evidence that appellant forced the victim to the
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ground, sat on top of her and straddled her legs, and in doing
so forced her body to come in contact with or touch the clothing
touching his groin and genitalia and that Cox was doing so with
the intent to sexually arouse or gratify himself.
"A reviewing court's responsibility in reviewing jury
instructions is to 'see that the law has been clearly stated and
that the instructions cover all issues which the evidence fairly
raises.'" Darnell v. Commonwealth, 6 Va. App. 485, 488, 370
S.E.2d 717, 719 (1988) (quoting Swisher v. Swisher, 223 Va. 499,
503, 290 S.E.2d 856, 858 (1982)). "On appeal, when the issue is
a refused jury instruction, we view the evidence in the light
most favorable to the proponent of the instruction." Lynn v.
Commonwealth, 27 Va. App. 336, 344, 499 S.E.2d 1, 4-5 (1998),
aff'd, 257 Va. 239, 514 S.E.2d 147 (1999). "A party is entitled
to have the jury instructed according to the law favorable to
his or her theory of the case if evidence in the record supports
it." Foster v. Commonwealth, 13 Va. App. 380, 383, 412 S.E.2d
198, 200 (1991). However, an instruction is proper only if
supported by more than a scintilla of evidence. Commonwealth v.
Donkor, 256 Va. 443, 445, 507 S.E.2d 75, 76 (1998).
Viewed in the light most favorable to the Commonwealth, the
proponent of the instruction, see Foster, 13 Va. App. at 383,
412 S.E.2d at 200, the evidence proved that Cox grabbed the
victim and pulled her to the ground. As she lay with her back
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pinned to the ground, Cox "got on top" of her and placed "one
leg on each side" of her body. According to the victim, "his
legs were over mine."
Considering the nature of Cox's assault upon the victim, a
reasonable fact finder could conclude that by forcibly
straddling the victim Cox intended to cause the victim's body to
touch the material directly covering his "groin" or "genitalia"
and that he did so with the intent to sexually arouse or gratify
himself. See Code § 18.2-67.10(2). Thus, the instruction was
supported by more than a scintilla of evidence. Accordingly, we
affirm appellant's conviction.
Affirmed.
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Benton, J., dissenting.
I.
To obtain a conviction in a criminal prosecution, the
Commonwealth must satisfy the due process requirement of proving
each element of an offense beyond a reasonable doubt. In re
Winship, 397 U.S. 358, 363 (1970).
Fundamental principles applicable here
should be reviewed. To justify conviction
of a crime, it is insufficient to create a
suspicion or probability of guilt. Rather,
the burden is upon the Commonwealth to prove
every essential element of the offense
beyond a reasonable doubt. "The evidence
must exclude every reasonable hypothesis of
innocence and be consistent only with the
guilt of the accused."
Moore v. Commonwealth, 254 Va. 184, 186, 491 S.E.2d 739, 740
(1997) (citation omitted).
The evidence failed to prove that when Cox assaulted the
teenager he touched her breast or the portion of her brassiere
covering her breasts. When the teenager testified, she did not
say Cox touched her breast or the portion of her brassiere
covering her breasts. Indeed, she testified and the evidence
clearly proved that Cox scratched the portion of her body
between her breasts.
When as here, the statute prohibits touching "intimate
parts," proof that the touching was close to the intimate part
or in an area proximate to it is insufficient to establish the
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element of the offense. Cf. Moore, 254 Va. at 189, 491 S.E.2d
at 741 (holding that proof establishing "the man's penis is
placed on, not in, the woman's sexual organ is insufficient to
establish the element of penetration"); Ashby v. Commonwealth,
208 Va. 443, 444, 158 S.E.2d 657, 658 (1968) (holding that proof
a person's mouth is on another's penis is insufficient to prove
the penis is in the mouth).
"There is always in litigation a margin of
error, representing error in factfinding,
which both parties must take into account.
Where one party has at stake an interest of
transcending value – as a criminal defendant
his liberty – this margin of error is
reduced as to him by the process of placing
on the other party the burden of . . .
persuading the factfinder at the conclusion
of the trial of his guilt beyond a
reasonable doubt. Due process commands that
no man shall lose his liberty unless the
Government has borne the burden of . . .
convincing the factfinder of his guilt." To
this end, the reasonable-doubt standard is
indispensable, for it "impresses on the
trier of fact the necessity of reaching a
subjective state of certitude of the facts
in issue."
Winship, 397 U.S. at 364 (citations omitted). The
Commonwealth's evidence, which proved only touching proximate to
the breasts, created only a suspicion or probability of guilt as
to the essential element of touching an intimate part of the
body. See Moore, 254 Va. at 186, 491 S.E.2d at 740.
"[C]ircumstances of suspicion, no matter how grave or strong,
are not proof of guilt sufficient to support a verdict of guilty
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. . . [because the] actual commission of the crime by the
accused must be shown by evidence beyond a reasonable doubt to
sustain . . . [a] conviction." Clodfelter v. Commonwealth, 218
Va. 619, 623, 238 S.E.2d 820, 822 (1977).
Because the evidence failed to prove beyond a reasonable
doubt that Cox "touche[d] the complaining witness's [breast] or
material directly covering such [breasts]," Code
§ 18.2-67.10(6), I would reverse the conviction for aggravated
sexual battery in violation of Code § 18.2-67.3.
II.
I would also note that the trial judge plainly erred in
instructing the jury. The evidence proved the trial judge
instructed the jury, at the prosecutor's request, that it could
convict Cox of aggravated sexual abuse if it found that "the
complaining witness was forced to touch the intimate parts of
the accused or material directly covering such intimate parts."
The evidence concerning these events proved that Cox grabbed the
teenager and threw her to the ground. She was wearing a shirt
and long pants. She described the events in the following
testimony:
Q . . . . And the person that grabbed you
pulled you to the ground. What -- where
were they?
A They were –- when they got me on the
ground, he got on top of me.
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Q And which part of him was on top of you?
A His -- he had one leg on each side of me.
Q And where then -- do you remember where
his hands and arms were and where yours
were?
A Yes, mine was –- he had –- mine were down
and his legs were over mine. . . .
In other words, the teenager's testimony proved Cox "had one leg
on each side of [her]" such that her hands and arms "were down
and his legs were over [her hands and arms]."
The rule is well established that even if an instruction
correctly states the law, it should not be given if it is not
applicable to the evidence proved in the case. See Banner v.
Commonwealth, 204 Va. 640, 647-48, 133 S.E.2d 305, 310 (1963);
Latham v. Commonwealth, 184 Va. 934, 939, 37 S.E.2d 36, 38
(1946); Thomason v. Commonwealth, 178 Va. 489, 498, 17 S.E.2d
374, 377 (1941); Morse v. Commonwealth, 17 Va. App. 627, 632,
440 S.E.2d 145, 149 (1994). Thus, "an instruction is proper
only if supported by more than a scintilla of evidence" in the
record. Commonwealth v. Sands, 262 Va. 724, 729, 553 S.E.2d
733, 736 (2001). Indeed, the trial judge errs by giving an
instruction that is not supported by the evidence. Gravitt v.
Ward, 258 Va. 330, 337, 518 S.E.2d 631, 635 (1999); Swift v.
Commonwealth, 199 Va. 420, 424, 100 S.E.2d 9, 13 (1957).
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Specifically noting his reason for granting the
prosecutor's request to give the instruction, the trial judge
ruled as follows:
The Commonwealth Attorney's argument was
that if the jury believed . . . that when
she was thrown to the ground by the
defendant, that she was forced to touch his
leg, at least. . . . So that would justify
that.
The Commonwealth argues on appeal that Cox "pushed clothing
covering his intimate parts against [the teenager's] body." The
majority opinion adopts this argument and holds that the
instruction is supported because the teenager's body "touched
the material directly covering [Cox's] 'groin' or 'genitalia.'"
No evidence in the record supports that conclusion. The
teenager did not testify to that fact. Moreover, no reasonable
inference from the evidence leads to that fact.
The prosecutor argued and the trial judge accepted as
sufficient for granting the instruction the theory that the
evidence proved the teenager's hands and arms touched Cox's
trousered leg. Code § 18.2-67.10(2), however, does not include
a leg in its definition of "intimate parts." I would hold that
the trial judge erred in concluding that evidence, which proved
the teenager's hand touched Cox's trousered leg, was sufficient
to support an instruction that would have allowed the jury to
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find beyond a reasonable doubt Cox forced the teenager "to touch
[his] intimate parts."
Furthermore, this instruction was not harmless because it
allowed the jury to unreasonably infer that Cox forced the
teenager to touch his intimate parts or material directly
covering his intimate parts. No evidence supports that
inference. Based on mere speculation, the prosecutor argued to
the jury that if they believed the teenager, then the evidence
proved that Cox "pinned [the teenager] down with his legs and
placed his crotch across her, forcing her to come in contact
with his crotch." Thus, the instruction permitted the jury,
even if it rejected the testimony that Cox touched the
teenager's breast, to convict Cox without proof beyond a
reasonable doubt that he forced the teenager to touch his
intimate parts. I would hold that the instruction was not
harmless.
For these reasons, I would reverse the conviction.
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