Com. v. Bower, Record No. 012220.

• Decision Date: 07 June 2002
• Docket Number: Record No. 012220.
• Citation: 264 Va. 41,563 S.E.2d 736
• Parties: COMMONWEALTH of Virginia, v. William Patrick BOWER.
• Court: Virginia Supreme Court

563 S.E.2d 736

264 Va. 41

COMMONWEALTH of Virginia, v. William Patrick BOWER.

Record No. 012220.

Supreme Court of Virginia.

June 7, 2002.

Leah A. Darron, Asst. Atty. Gen. (Jerry W. Kilgore, Atty. Gen., on brief), for appellant.

Thomas A. Blaylock, for appellee.

Present: All the Justices.

Opinion by Justice ELIZABETH B. LACY.

The Court of Appeals reversed William Patrick Bower's conviction under Code § 18.2-67.2 of animate object sexual penetration of his thirteen-year-old daughter, holding that there was insufficient evidence that Bower perpetrated the crime through intimidation. We will reverse the judgment of the Court of Appeals and reinstate his conviction because we conclude that the testimonial evidence along with the familial relationship between the defendant and victim, their relative ages and sizes, and the improper touching that preceded the penetration constitute sufficient proof that the conduct of the defendant intimidated the victim in such a way that her will was overcome.

I. FACTS

"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).

In April 1995 around 8:00 a.m., Bower entered the bedroom of his thirteen-year old daughter, Buffy Brooks Bower. She was lying on her stomach, facing away from the door, and appeared to be asleep. Without saying anything, he lay down next to her. He put his hand underneath her pajamas and fondled her breasts for a period of five minutes. He then placed his hand inside her panties; first resting his hand on her bare bottom and then putting his finger into her vagina for a twenty-minute period. During this episode, Buffy kept facing away and pretending to be asleep until, after a total of about thirty minutes, Bower finally got up and left the room. Buffy went back to sleep.

Buffy testified that after the incident she was "too scared to even [tell her] own mother" what had occurred. She also testified that she had had a good relationship with her father prior to the assault but from that time forward refused to be alone with him.

The Bowers divorced in 1997 after Buffy's mother learned about the assault. Bower remarried and fathered a second daughter. Ultimately, it was concern for her half-sister that induced Buffy to report the incident to the police in 1999.

At trial, Bower waived his right to a jury and was convicted by the trial court of animate object sexual penetration under Code § 18.2-67.2 and taking indecent liberties with a child by a person in custodial or supervisory relationship under Code § 18.2-370.1. The trial court sentenced Bower to ten-years' imprisonment for the animate object sexual penetration conviction, with five years suspended, and to a five-year sentence for the indecent liberties conviction, suspended in its entirety.

The Court of Appeals granted Bower's appeal of his animate object sexual penetration conviction and reversed that conviction. The court, referring to this Court's discussion of "intimidation" in Sutton v. Commonwealth, 228 Va. 654, 324 S.E.2d 665 (1985), concluded that "intimidation in the context of the criminal sexual,. assault statutes, including Code § 18.2-67.2, means putting the victim in fear of bodily harm." Bower v. Commonwealth, 36 Va.App. 382, 389, 551 S.E.2d 1, 4 (2001). The court held that, in this case, nothing in Bower's conduct "would place his daughter in fear of bodily harm" and that the evidence would not even support a finding under a "lower standard" that the victim's will was overborne by psychological domination and control. Id. at 389-90, 551 S.E.2d at 4. Rejecting the proposition that the parent-child relationship and differential in age and size could constitute "cognizable intimidation of the daughter causing her to submit to Bower," the court concluded that Bower "probably accomplished" the offending act by surprise. Id. at 390, 551 S.E.2d at 5. We awarded the Commonwealth an appeal.

In Sutton, we considered the meaning of "intimidation" in the context of the rape statute, Code § 18.2-61. Since the term "intimidation" is consistently used throughout the various statutes dealing with crimes of sexual assault, the Sutton discussion is relevant to our decision in this case. We described intimidation as

putting a victim in fear of bodily harm by exercising such domination and control of her as to overcome her mind and overbear her will. Intimidation may be caused by the imposition of psychological pressure on one who, under the circumstances, is vulnerable and susceptible to such pressure.

228 Va. at 663, 324 S.E.2d at 670.

The Court of Appeals' decision that the Commonwealth failed to meet its burden of proving intimidation was based on two factors: (1) the absence of evidence other than the parent-child relationship to show emotional domination; and (2) the absence of any conduct by the defendant that would put the victim in fear of bodily harm such that the intimidation element of the crime was met.

The Court of Appeals, while acknowledging that the parent-child relationship can be a "highly relevant" factor when considering intimidation, discounted such evidence as proof of intimidation in this case because there was no other evidence supporting the conclusion that the defendant exercised "emotional domination" over his daughter. The lack of such emotional domination by Bower was reflected, according to the Court of Appeals, in the daughter's testimony that she had a "good relationship" with her father prior to the assault.

In discussing the psychological...