Campbell v. Com.

• Decision Date: 09 March 1984
• Docket Number: No. 830336,830336
• Citation: 313 S.E.2d 402,227 Va. 196
• Parties: Dorsey Lee CAMPBELL v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 402

313 S.E.2d 402

227 Va. 196

Dorsey Lee CAMPBELL v. COMMONWEALTH of Virginia.

Record No. 830336.

Supreme Court of Virginia.

March 9, 1984.

Cabell F. Cobbs, Staunton (Virginia B. Garrison, Rhea, Vellines & Garrison, Staunton, on brief), for appellant.

Robert Q. Harris, Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen., on brief), for appellee.

Before CARRICO, C.J., and COCHRAN, POFF, COMPTON, STEPHENSON, RUSSELL and THOMAS, JJ.

THOMAS, Justice.

Dorsey Lee Campbell was tried by a jury and convicted, under Code § 18.2-370(1), of indecent exposure with lascivious intent, a felony. The statute reads in pertinent part as follows:

Any person eighteen years of age or over, who, with lascivious intent, shall knowingly and intentionally: (1) Expose his or her sexual or genital parts to any child under the age of fourteen years to whom such person is not legally married...

....

... shall be guilty of a class 6 felony.

On appeal, Campbell contends the evidence was insufficient to establish either that he had the necessary lascivious intent or that the indecent exposure involved was intentional. We find the evidence sufficient; therefore, we will affirm Campbell's conviction.

The evidence, viewed in the light most favorable to the Commonwealth, establishes that on July 9, 1982, Nikki Eherenman, then 8 years old, and her friend, Daniel Brown, were riding their bicycles in an apartment complex known as Country Club Court. A railroad line ran near the complex. Nikki and Daniel rode into a cul-de-sac from which they had a view of the railroad tracks. Nikki saw Campbell "hiding behind [a] bush" near the tracks. He was standing approximately 87 feet from her but she had a clear line of sight to his position except for bushes which obscured Campbell's body from his knees to his feet. She had an unobstructed view of Campbell from the top of his head to his knees.

Nikki noticed that Campbell was looking at her. She was asked on direct examination whether anything in particular drew her attention to him. She said he was gesturing towards himself. She was then asked whether Campbell did anything after she started looking in his direction. She said yes, "[h]e started taking his pants off to his knees." Nikki said Campbell was not wearing any underpants. She said that when he pulled down his pants she exclaimed "no," at which point her friend, Daniel, came and called for her to leave.

On cross-examination, Nikki reiterated that Campbell pulled his pants down after he had gotten her attention by gesturing to her. Campbell's counsel asked, "And you saw him when he pulled his pants down." She replied, "Yes sir." He challenged her again saying, "And you say that he beckoned to you. When you first saw him did he have his pants up or were they already down?" She responded, "They were all the way up."

Upon further examination, Campbell's counsel established that Campbell beckoned to Nikki four times. The following exchange occurred:

"Q. Okay. Now, did the man beckon to you like--I'd like for you to think about it for just a minute. How many times did he beckon?

A. For me to come?

Q. Yes.

A. Probably four times."

Thereafter, Nikki made clear that one of these gestures was made after Campbell had pulled his pants down. Campbell's counsel asked this question: "And then his pants were down and he beckoned towards you once, is that right?" Nikki answered, "Yes sir."

The statute involved in this appeal has been considered by the Court in two previous cases. Breeding v. Commonwealth, 213 Va. 344, 192 S.E.2d 807 (1972), and McKeon v. Commonwealth, 211 Va. 24, 175 S.E.2d 282 (1970). In both cases, we reversed the convictions, on the ground that lascivious intent was not proved. Campbell contends that the evidence against him is no stronger than the evidence adduced in Breeding and McKeon and that his conviction likewise should be reversed. We disagree. In our opinion, those cases are distinguishable.

McKeon is the central case because there we analyzed the statute, defined lascivious intent, and set forth the evidence that must be adduced to prove that intent. There, McKeon, dressed only in his bathrobe, called to a 10-year-old neighborhood girl who was playing in back of his house and asked her to go to a nearby store to buy him some bread and milk. He gave her a dollar to make the purchase. When she returned he gave her a 25cents tip. A moment later he called to her to ask what had happened to his change. She told him it was in the bag with the items. As the girl was walking away, McKeon called to her again and gave her an additional 10cents tip which was part of the change he found in the bag. The girl took the money and began playing with McKeon's dog, outside the house. McKeon, who was inside, called again to the girl, this time saying that he wanted to talk to her. The girl...