McKeon v. Com.

• Decision Date: 15 June 1970
• Citation: 211 Va. 24,175 S.E.2d 282
• Parties: Richard P. McKEON, Alias, etc. v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

Page 282

175 S.E.2d 282

211 Va. 24

Richard P. McKEON, Alias, etc. v. COMMONWEALTH of Virginia.

Supreme Court of Appeals of Virginia.

June 15, 1970.

Thomas J. Harlan, Jr., Norfolk (Doumar, Pincus, Anderson & Knight, Norfolk, on the brief), for plaintiff in error.

D. Gardiner Tyler, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on the brief), for defendant in error.

Before SNEAD, C.J., and I'ANSON, CARRICO, GORDON, HARRISON, COCHRAN, and HARMAN, JJ.

I'ANSON, Justice.

Defendant, Richard Paul McKeon, 24 years of age, was indicted for exposing his genital parts with lascivious intent to a child under the age of fourteen years, in violation of § 18.1--214, Code of 1950, as amended, 1960 Repl.Vol. Defendant was tried without a jury, found guilty, sentenced to two years in the State penitentiary, and he is here on writ of error to the judgment.

The Commonwealth's evidence shows that in mid-afternoon of January 16, 1968, Donna Lynn Fagone, an infant girl 10 years of age, a neighbor of defendant, was playing with a girl friend in back of defendant's house when defendant, dressed only in his bathrobe, called and asked her to buy some bread and milk for him at a nearby store, giving her a dollar to make the purchase. She returned with the groceries, accompanied by her girl friend, and defendant gave her a 25cents tip. A moment later he called to her asking what she had done with his change, and she explained that she had put it in the bag. Shortly thereafter Donna, having had a fight with her girl friend, was heading toward her home, located across a court immediately behind the defendant's apartment, when he called to her and gave her 10cents, which was part of the change in the grocery bag. Donna then began to play with defendant's dog for a new minutes when defendant again called her from inside the house, saying he wanted to talk to her. Donna at that point became nervous and, answering 'no' she had 'to go home,' started toward the house of a neighbor who was taking care of her for the afternoon, when defendant called to her to 'turn around.' She did so for a few seconds and saw defendant smiling, standing on his porch with his hands on his hips, his robe open in front showing his chest and private parts. Her description of the defendant's private parts indicated that he was not sexually aroused. She was about 35 feet away from defendant at that time. Immediately thereafter she ran to a neighbor's house.

Defendant's testimony is substantially the same as that of the child except that he stated he last called to her to give her the dime; he did so with one foot on the porch, holding the door open with his other hand. He asserted that at that time his robe was tied, and although there was a breeze he did not believe that his privates became exposed at any time. He denied calling the child back thereafter or standing on the porch exposing himself. Defendant explained that he was in a bathrobe because he had gotten off work and had just showered.

Defendant had been happily married for two years and had been in the Navy for seven years. He had not been in any previous trouble.

The crucial question presented is whether the evidence is sufficient to support the defendant's conviction.

The Commonwealth says that we should not consider the question of the sufficiency of the evidence because it was raised for the first time on this appeal. Rule 1:8, Rules of Court.

Under Rule 1:8, this court will not consider alleged errors raised for the first time on appeal 'except for good cause shown or to enable this court to attain the ends of justice.' Numerous cases decided by us clearly show our constant refusal, under the provisions of Rule 1:8, to consider a point on appeal that was not properly saved in the lower court. But in instances where it was necessary to attain the ends of justice we have considered questions not properly saved in the court below. Glasgow v. Peatross, 201 Va. 43, 47, 10. S.E.2d 135, 138 (1959); Cooper v. Commonwealth, 205 Va. 883, 889--890, 140 S.E.2d 688, 693 (1965).

In the present case we think it proper, in order to attain the ends of justice, to determine whether the evidence is sufficient to support defendant's conviction.

Defendant's counsel argues that the charge against defendant is not simply one of indecent exposure, which is a misdemeanor at common law, Noblett v. Commonwealth, 194 Va. 241, 72 S.E.2d 241 (1952); ¹ that it is a violation of Code § 18.1--214, which makes punishable as a felony the exposure of sexual or genital parts to a child 'with lascivious intent'...