Martin v. Com.

• Decision Date: 08 June 2006
• Docket Number: Record No. 052060.
• Citation: 630 S.E.2d 291
• Parties: James MARTIN v. COMMONWEALTH OF VIRGINIA.
• Court: Virginia Supreme Court

Page 291

630 S.E.2d 291

James MARTIN v. COMMONWEALTH OF VIRGINIA.

Record No. 052060.

Supreme Court of Virginia.

June 8, 2006.

Robert J. Cuningham, Jr. (Whitestone, Brent, Young & Meril, on brief), Fairfax, for appellant.

Alice T. Armstrong, Assistant Attorney General (Robert F. McDonnell, Attorney General; Josephine F. Whalen, Assistant Attorney General, on brief), for appellee.

Present: All the Justices.

OPINION BY Justice ELIZABETH B. LACY.

James A. Martin was convicted of aggravated sexual battery, a violation of Code § 18.2-67.3, based on events occurring in February 2003.¹ The facts are undisputed. Martin, then fourteen years old, exposed his penis to the eight-year-old victim, asked the victim to masturbate him and, following Martin's directions, the victim complied. Martin's conviction was affirmed by the Court of Appeals in an unpublished opinion with one judge dissenting. Martin v. Commonwealth, Record No.1966-04-4, 2005 WL 2122112 (Sept. 6, 2005). The issue in this appeal, as in the courts below, is whether the controlling statutes required the use of actual force to establish sexual abuse as defined by the 2003 version of Code § 18.2-67.10(6)(b).²

At the time of this offense, "sexual abuse" was defined by Code § 18.2-67.10(6) 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 § 18.2-67.3(A)(1) provides that a person is 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.

Martin was convicted of aggravated sexual battery under subsection (A)(1) of Code § 18.2-67.3 based on his sexual abuse of the victim under subparagraph (b) of Code § 18.2-67.10(6).

Martin argues that Code § 18.2-67.10(6)(b) required an overt act of actual force and that, in the absence of such an act, his conviction cannot be sustained. Martin supports his position with three arguments. First, he claims the plain meaning of "force" or "forces" requires an overt physical act; second, adopting the reasoning of the dissent in the Court of Appeals, he asserts that allowing proof of age to satisfy elements in both statutes would be "incongruous;" and finally, he argues that in 2004 the General Assembly substantively changed the law by eliminating force from a category of acts that constitute sexual abuse of children under the age of thirteen resulting in the conclusion that actual force was required prior to the amendment.³ We consider Martin's arguments in order.

First, the General Assembly has not defined "force" in the context of sexual abuse. Nevertheless, our cases have discussed the nature of "force" in sexual offenses and we have repeatedly held that "force" includes both actual and constructive force. For example, in a prosecution for rape, we held that "force, actual or constructive" is an essential element of the crime, Stump v. Commonwealth, 137 Va. 804, 807, 119 S.E. 72, 73 (1923), and in Davis v. Commonwealth, 186 Va. 936, 946, 45 S.E.2d 167, 171 (1947), we stated that "[u]nder the law two types of force, active and constructive, are recognized." See also Jones v. Commonwealth, 219 Va. 983, 985, 252 S.E.2d 370, 372 (1979) (General rule that "force, actual or constructive" is essential element of non-statutory rape). Given this long history in which our jurisprudence has recognized that "force" may include both constructive and actual force and in the absence of any legislative definition of "force," we cannot conclude that the General Assembly intended to limit the meaning of the word "force" to actual force for purposes of Code § 18.2-67.10(6)(b). See Waterman v. Halverson, 261 Va. 203, 207, 540 S.E.2d 867, 869 (2001) ("The General Assembly is presumed to be aware of the decisions of this Court when enacting legislation."); Dodson v. Potomac Mack Sales & Service, Inc., 241 Va. 89, 94, 400 S.E.2d 178, 180 (1991).

Equally long-standing is the principle that in the context of sexual crimes, an act undertaken against a victim's will and without the victim's consent is an act undertaken with force. Jones, 219 Va. at 986, 252 S.E.2d at 372. Again, in the context of a rape prosecution, we held that constructive force exists if the victim could not legally consent to the act. Stump, 137 Va. at 807, 119 S.E. at 73. Proof of the absence of legal consent provides "all the force which the law demands as an element of the crime." Bailey v. Commonwealth, 82 Va. (7 Hans.) 107, 111 (1886). For these reasons, we reject Martin's contention that as used in Code § 18.2-67.10(6) "force" means actual force, and we conclude that "force" includes actual and constructive force and that constructive force includes engaging in proscribed conduct with a victim who is under the legal age of consent.

Martin's second argument is based on the reasoning of the dissent in the Court of Appeals: "Where a statute proscribes certain behavior based on both the age of the victim and the fact that the act was accomplished using force, it would be incongruous to conclude that proving the victim was beneath the common-law age of consent also satisfied the express requirement of proving force." Martin, Record No.1966-04-4, slip op. at 11 n. 5 (Elder, J., dissenting). We disagree that the use of a common set of facts for proof of differing elements of a crime is incongruous.

The prosecution for aggravated sexual battery in this case required a showing of sexual abuse under Code § 18.2-67.10(6)(b), which includes proof of force, and a showing that the victim was under 13 years of age, Code § 18.2-67.3(A)(1). The common factual element in this case — the age of the victim — serves as proof of both the force requirement and the age requirement. Such a circumstance is neither improper nor incongruous.

Finally, Martin asserts that the 2004 amendment to Code § 18.2-67.10(6) supports his contention that, prior to that...