Johnson v. Com., 0692-86-3
| Decision Date | 16 February 1988 |
| Docket Number | No. 0692-86-3,0692-86-3 |
| Citation | 5 Va.App. 529,365 S.E.2d 237 |
| Parties | Tommy JOHNSON v. COMMONWEALTH of Virginia. Record |
| Court | Virginia Court of Appeals |
Sidney H. Kirstein (McRorie, Kirstein & McMahon, Lynchburg, on brief), for appellant.
W. Mark Dunn, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.
Tommy Johnson, appellant, was convicted in a bench trial in the Circuit Court of the City of Lynchburg of aggravated sexual battery pursuant to the provisions of Code § 18.2-67.3. On appeal, Johnson raises the following issues: (1) whether as a matter of law the complaining witness' testimony was inherently incredible, and (2) whether the Commonwealth's evidence was sufficient to prove that the act in question was accomplished against the will of the complaining witness by force, threat or intimidation. We conclude that the second issue is dispositive and, accordingly, we do not address the first issue. We hold that the Commonwealth failed to prove force, an essential element of the crime charged, and reverse Johnson's conviction.
There are conflicts in the evidence in the record supporting Johnson's claim that no contact, sexual or otherwise, occurred between him and the complaining witness; however, because of our view of this case, we relate only those facts favorable to the Commonwealth and in so doing assume that sexual contact did occur. We will refer only to the first names of the witnesses who were minors.
On July 16, 1985, Scott, the fourteen year old complaining witness, spent the night at the home of his friend, Dale. After watching television until late that night both boys fell asleep "cross- ways" on the bed in the bedroom of Dale's mother. Scott had on jeans and shoes, but no shirt. Dale's mother slept on a sofa in the living room, a short distance away. Johnson, a family friend, came to this home in the early morning hours of the next morning, as was his custom, to help Dale deliver the morning newspaper. He also customarily slept for awhile before delivering the newspapers.
On this particular morning, Johnson arrived at 5:30 a.m. and thereafter, positioned himself in the bed between the two sleeping boys facing Scott's back. Scott testified that thereafter Johnson touched "my tail and my penis." Specifically, Scott testified that "[Johnson] woke me up and was holding me real close to him and then he started taking his fingers and going around my pants and stuff and I kind of acted like I was asleep." Scott further testified that after Johnson touched his genitalia and buttocks, when he tried to get up, Johnson Dale did not respond when Scott called to him during this incident. Upon leaving, Scott told Dale's mother that he was going to his grandmother's house. He made no complaint to Dale's mother. Shortly thereafter Scott informed his friend, Donnie, of this incident. Donnie testified that at that time Scott appeared scared and was crying. The boys called the police and the responding officer testified that Scott appeared "scared" and "serious" when he related the incident to him.
The Commonwealth correctly points out that Johnson is raising the issue concerning force, threat and intimidation for the first time in this Court because he did not specifically assert that argument in the trial court. Under familiar principles, we recognize that a reasonably specific objection or motion must be made in the trial court to preserve an issue for appellate review. Rule 5A:18. 1 The record reveals that Johnson essentially maintained in the trial court that no contact, sexual or otherwise, occurred and, therefore, we agree that he did not specifically present the issue of force, threat or intimidation in the trial court. Under these circumstances, we must first decide whether Johnson can be heard on this issue for the first time in this appeal.
Rule 5A:18 is clear and this Court has repeatedly enforced its provisions. See Head v. Commonwealth, 3 Va.App. 163, 167-68, 348 S.E.2d 423, 426 (1986); Ingram v. Commonwealth, 1 Va.App. 335, 341, 338 S.E.2d 657, 660 (1986).
One exception of this rule, "the ends of justice," was addressed by this Court in Mounce v. Commonwealth, 4 Va.App. 433, 436, 357 S.E.2d 742, 744 (1987). In Mounce, we concluded: "[T]he 'ends of justice' provision may be used when the record affirmatively shows that a miscarriage of justice has occurred, not when it merely shows that a miscarriage might have occurred." Id. Obviously, the applicability of this exception cannot be determined on the mere assertion of the general rule, but necessarily requires our review of the record. Having thus reviewed the record and for the reasons that follow, we invoke the ends of justice exception and consider the merits of Johnson's appeal.
Code § 18.2-67.3 provides:
Aggravated sexual battery. A. An accused shall be guilty of aggravated sexual battery if he or she sexually abuses the complaining witness, and
1. The complaining witness is less than thirteen years of age, or
2. The act is accomplished against the will of the complaining witness, by force, threat or intimidation, or through the use of the complaining witness's mental incapacity or physical helplessness, and
a. The complaining witness is at least thirteen but less than fifteen years of age, or
b. The accused causes serious bodily or mental injury to the complaining witness, or
c. The accused uses or threatens to use a dangerous weapon.
B. Aggravated sexual battery is a felony punishable by confinement in the penitentiary for a term of not less than one nor more than twenty years.
"Sexual abuse" is defined in pertinent part in Code § 18.2-67.10:
"Sexual abuse" means 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 clothing covering such intimate parts ...
Code § 18.2-67.4 defines sexual battery, a...
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