Nelson v. Commonwealth

• Decision Date: 03 November 2021
• Docket Number: Record No. 0925-20-2
• Citation: 863 S.E.2d 886,73 Va.App. 617
• Parties: Gilbert R. NELSON, III v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

73 Va.App. 617

863 S.E.2d 886

Gilbert R. NELSON, III

v.COMMONWEALTH of Virginia

Record No. 0925-20-2

Court of Appeals of Virginia.

NOVEMBER 3, 2021

Peter L. Trible, Jr. (Trible Law Offices, PLC, on brief), for appellant.

Matt Beyrau, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Chief Judge Decker, Judges Humphreys and O'Brien

OPINION BY CHIEF JUDGE MARLA GRAFF DECKER

Gilbert R. Nelson, III, appeals his conviction for aggravated sexual battery in violation of Code § 18.2-67.3. On appeal, he contends that the evidence was insufficient to prove he used force to commit the act of sexual abuse. We hold that the commission of the proscribed act against a sleeping victim established a lack of consent that proved constructive force, thereby satisfying the challenged element of the offense. Consequently, we affirm the appellant's conviction.

I. BACKGROUND¹

The appellant was charged with sexually abusing J.A., who was at least thirteen years old but less than fifteen, "against [her] will ... by force[,] threat[,] or intimidation." The offense occurred on or about March 10, 2018.

At the appellant's trial for aggravated sexual battery, J.A. testified that she was born on January 15, 2004. She explained that at the time of the March 2018 offense, the appellant was dating her adult cousin. J.A. related three incidents involving the appellant, the last of which resulted in the charged offense.

On the first occasion, in late February 2018, the appellant knocked on the bathroom door at J.A.’s residence while she was showering. A short time later, while J.A. was in her bedroom, she noticed that "the door was cracked" and the appellant was standing outside the door "[not] moving." He then quickly closed the door and ran outside. On the second occasion, in early March 2018, while J.A. was spending the night at her cousin's home, the appellant loaned his old phone to J.A. but then took it back from her to "check something." When he returned it, J.A. opened the phone and saw "a picture of his private parts," which the appellant then "swiped ... away." Afterward, while J.A. was in the bathroom "doing [her] hair," the appellant entered and said, "[N]ow that you've seen me, it's time for me to see you."

The third occasion, the one upon which the instant charge was based, arose out of an event that took place about a week later, on March 10, 2018. J.A. was again spending the night at her cousin's home. She was watching her cousin's young children while her cousin and the appellant were at a party. J.A. fell asleep on the living room couch. Later, while sleeping, she "felt something" and "woke up to [find the appellant's] hands" were "down [her] pants." J.A. said that the appellant was also "whispering things in [her] ear" but she "couldn't really understand him." She testified that he was touching her "private area," which she demonstrated by pointing to her "genital[s]." J.A. indicated that although the appellant's "hand[s]" did not "go inside [her] at all," he was "definitely touching [her]." J.A. told her mother about the appellant's sexual contact with her, and they reported the incident to the police.

The appellant testified in his own behalf. With regard to the incident on March 10, 2018, he said that he was simply trying to watch television. He suggested that J.A. was attempting to hide the remote control from him and that he touched her leg as he retrieved the remote.²

In closing argument, the appellant's counsel suggested that the case involved an issue of witness credibility. He further emphasized that because J.A. was fourteen, the court was required to find that the act was "accomplished against [her] will ... by force, threat or intimidation." Counsel argued that the evidence did not prove this element of the offense.

After hearing additional argument on the issue of force and reviewing relevant cases, the trial court concluded that constructive force was adequate to prove the "force, threat, or intimidation" element of the offense. The court convicted the appellant of aggravated sexual battery and sentenced him to twenty years in prison, with sixteen years suspended on various conditions.

II. ANALYSIS

The appellant contends that the evidence was insufficient to show that he used force to perpetrate the sexual battery. He argues that because the touching began while the victim was asleep, he did not accomplish the offense by means of force, threat, or intimidation.

When considering a challenge to the sufficiency of the evidence, the appellate court views the evidence, and all reasonable inferences fairly deducible from it, in the light most favorable to the Commonwealth, the prevailing party below. Wactor v. Commonwealth, 38 Va. App. 375, 379, 564 S.E.2d 160 (2002). Determining the "credibility of the witnesses and the weight of the evidence" are tasks left "solely [to] the trier of fact" unless those determinations are "plainly wrong or without evidence to support [them]." Id. at 380, 564 S.E.2d 160. Consequently, "a reviewing court does not ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ " Robinson v. Commonwealth, 70 Va. App. 509, 513, 828 S.E.2d 269 (2019) (en banc ) (quoting Crowder v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d 384 (2003) ). Instead, the appellate court "ask[s] whether ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ " Id. (quoting Crowder, 41 Va. App. at 663, 588 S.E.2d 384 ). Conversely, to the extent that resolution of the sufficiency challenge requires statutory interpretation, that aspect of the analysis "presents a pure question of law" that is "subject to de novo review" on appeal. See Washington v. Commonwealth, 272 Va. 449, 455, 634 S.E.2d 310 (2006).

The appellant was convicted of aggravated sexual battery in violation of Code § 18.2-67.3. Both the simple and aggravated forms of sexual battery require proof that the defendant "sexually abuse[d]" the complaining witness. See Code §§ 18.2-67.3(A), -67.4(A). Sexual abuse is defined in pertinent part as "an act committed with the intent to sexually molest, arouse, or gratify any person, where ... [t]he accused intentionally touches the complaining witness's intimate parts or material directly covering such intimate parts." See Code § 18.2-67.10(6)(a). The portion of Code § 18.2-67.3 under which the appellant was charged and convicted additionally requires proof that the complaining witness was "at least 13 but less than 15 years of age" and that the act was "accomplished against the will of the complaining witness by force, threat[,] or intimidation." Code § 18.2-67.3(A)(4)(a) ; see also Code § 18.2-67.4(A) (requiring proof of force, threat, intimidation, or ruse to prove sexual battery but not containing an age requirement).

The appellant does not dispute the sufficiency of the evidence to prove that his acts fit the definition of sexual abuse or that the age of the complaining witness met the requirement to elevate the offense from sexual battery to aggravated sexual battery. He contends only that he did not accomplish the act "against the will of the [victim] by force, threat[,] or intimidation." In short, the appellant argues that there was no actual force and that proof of constructive force is inadequate to establish the offense. The Commonwealth suggests that the evidence established that the appellant used actual force due to the duration of the touching. In the alternative, the Commonwealth argues that the aggravated offense can be committed through constructive force and that the evidence is sufficient to prove that type of force.

The Code itself does not define force in the context of sexual offenses. See Code § 18.2-67.10 (defining numerous terms used in the statutes proscribing various forms of criminal sexual assault but not defining force); see also Martin v. Commonwealth, 272 Va. 31, 34, 630 S.E.2d 291 (2006) (observing that the Code does "not define[ ] ‘force’ in the context of sexual abuse"). Nonetheless, "the Code of Virginia constitutes a single body of law[,] and ... related sections can be looked to for interpretation of a section [in which] the same phraseology is used." Wactor, 38 Va. App. at 381, 564 S.E.2d 160. As a result, the Court may consider case law interpreting various statutory sexual offenses to the extent "that each offense requires proof of ‘force, threat, or intimidation.’ " Id. at 380, 564 S.E.2d 160 (citing Code §§ 18.2-61, -67.1, -67.3, -67.4) ; see Martin, 272 Va. at 34-35, 630 S.E.2d 291 (analogizing the force requirement for sexual abuse to that required to prove other sexual offenses). Additionally, we consider the totality of the circumstances when determining whether the sexual battery was accomplished using force. See Jones v. Commonwealth, 219 Va. 983, 986-87, 252 S.E.2d 370 (1979) ; Robinson, 70 Va. App. at 514, 828 S.E.2d 269.

Applying longstanding common law principles, Virginia's appellate courts have repeatedly held in the context of sexual offenses "that ‘force’ [is defined to] include[ ] both actual and constructive force." Martin, 272 Va. at 34-35, 630 S.E.2d 291. As the Supreme Court of Virginia expressly noted in Martin the General Assembly has not provided a statutory definition of force that applies to the sexual offenses proscribed in Chapter 4, Article 7, of Title 18.2. See id. (interpreting the meaning of "force" as used in the definition of the term "sexual abuse" contained in Code § 18.2-67.10 ). Article 7 is the same portion of Title 18.2 that contains Code § 18.2-67.3, the aggravated sexual battery statute at issue in this case. See Code §§ 18.2-61 to -67.10.

"It is a common canon of statutory construction that when the legislature uses the same term in separate statutes, that term has the same meaning in each unless the General Assembly indicates to the contrary." Ricks v. Commonwealth, 290 Va. 470, 478 n.1, ...