Robinson v. Commonwealth

• Decision Date: 18 June 2019
• Docket Number: Record No. 1679-17-2
• Citation: 70 Va.App. 509,828 S.E.2d 269
• Parties: Johnathan Reeves ROBINSON v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

70 Va.App. 509

828 S.E.2d 269

Johnathan Reeves ROBINSON

v.COMMONWEALTH of Virginia

Record No. 1679-17-2

Court of Appeals of Virginia, Richmond.

JUNE 18, 2019

Timothy A. Hennigan (The Nguyen Law Firm, PLC, on brief), for appellant.

Victoria Johnson, Assistant Attorney General (Mark R. Herring, Attorney General, on brief) for appellee.

Present: Chief Judge Decker, Judges Humphreys, Petty, Beales, Alston,^* Huff, Chafin, O'Brien, Russell, and Malveaux

OPINION BY JUDGE RANDOLPH A. BEALES

This appeal raises the question of what constitutes force in the crime of sexual battery.

At the conclusion of a bench trial, appellant Johnathan Reeves Robinson was convicted of sexual battery in violation of Code § 18.2-67.4 by the Circuit Court of Amelia County. On appeal, Robinson challenged the sufficiency of the evidence, and a divided panel of this Court reversed the conviction. Robinson v. Commonwealth, Record No. 1679-17-2, 2019 WL 189380 (Va. Ct. App. Jan. 15, 2019). The Commonwealth petitioned this Court for a rehearing en banc . We granted the Commonwealth's petition for rehearing en banc , stayed the mandate of the panel decision, and reinstated the appeal on the docket of this Court. Upon a rehearing en banc , we find that the trial court did not err and affirm appellant's conviction.

I. BACKGROUND

We "view[ ] the evidence in the light most favorable to the Commonwealth, as we must since it was the prevailing party in the trial court." Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555 (2004). So viewed, the victim, R.W.,¹ testified that in April and May of 2017, she and her husband were residing with Robinson and his girlfriend in a house belonging to Robinson's girlfriend. R.W. testified that, in the afternoon of May 23, 2017, she returned to the house with her sister after an outing. Because the door was latched, she knocked on the door to enter the house. Robinson opened the door and told her, "[Y]ou just woke me up." She stated that she apologized and stepped into the house. She testified, "[H]e grabbed my breasts right behind my nipples and twisted as hard as he could." She stated, "I smacked his hands away" and that then "[h]e smacked my bottom."

R.W.'s sister testified that she was standing next to R.W. during the incident and that she saw Robinson "put his hands on my sister's breasts and twist[ ]." She further testified that R.W. then told "him to get off of her" and that he finally removed his hands from her breasts "[a]bout maybe a minute later."

R.W. testified that there were other occasions, including at least one prior to the incident on May 23, 2017, in which Robinson had touched her in a sexual way and that she had expressed to him on multiple occasions that she did not want him to touch her. She also testified that Robinson had told her that "if [she] said something" about his actions, she and her husband would have to move out of the house. She added that, at the time, she and her husband had nowhere else to go. During her testimony, R.W. also stated that Robinson "cupped the front of me and told me he can have it if he wanted it," although it is somewhat unclear from her testimony when that action occurred.

The trial judge denied Robinson's motion to strike and found Robinson guilty of sexual battery based on the May 23, 2017 incident. Specifically, the trial judge found that "because of the manner in which [R.W.] said that [Robinson] grabbed and held and twisted her breasts, the requirement of force is met." The judge concluded that "the evidence indicates that the requisite degree of force was applied."

On appeal, Robinson's sole assignment of error states, "The trial court erred in finding evidence sufficient to convict based on use of force when there was no evidence that the alleged touching was accomplished by the use of force sufficient to overcome the victim's will."

II. ANALYSIS

When considering the sufficiency of the evidence on appeal, "a reviewing court does not ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ " Crowder v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d 384 (2003) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788–89, 61 L.Ed.2d 560 (1979) ). "Viewing the evidence in the light most favorable to the Commonwealth, as we must since it was the prevailing party in the trial court," Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555 (2004), "[w]e must instead ask whether ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt,’ " Crowder, 41 Va. App. at 663, 588 S.E.2d 384 (quoting Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444 (2003) (en banc )). "This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319, 99 S.Ct. at 2789.

Resolution of Robinson's assignment of error also requires statutory interpretation, which we conduct de novo .

Commonwealth v. Amos, 287 Va. 301, 305-06, 754 S.E.2d 304 (2014) ; Hodges v. Commonwealth, 45 Va. App. 118, 123, 609 S.E.2d 61 (2005) (en banc ).

Code § 18.2-67.4(A)(i) states, "An accused is guilty of sexual battery if he sexually abuses, as defined in § 18.2-67.10, ... the complaining witness against the will of the complaining witness, by force, threat, intimidation, or ruse." The definition for "sexual abuse" includes "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." Code § 18.2-67.10(6)(a). "Intimate parts" is defined as the "genitalia, anus, groin, breast, or buttocks of any person." Code § 18.2-67.10(2).

The only issue here is whether the force requirement has been met, since Robinson concedes the trial court's factual finding of the sexual abuse and that the touching was performed against the will of the complaining witness. When reviewing convictions of sexual battery done "by force," we consider the totality of the circumstances. Jones v. Commonwealth, 219 Va. 983, 986, 252 S.E.2d 370 (1979) ; Bondi v. Commonwealth, 70 Va. App. 79, 88-89, 824 S.E.2d 512 (2019) ; Wactor v. Commonwealth, 38 Va. App. 375, 382-83, 564 S.E.2d 160 (2002).

The trial court made a finding of fact that the sexual battery occurred by force, stating that "because of the manner in which [R.W.] said that [Robinson] grabbed and held and twisted her breasts, the requirement of force is met" and stating that "the evidence indicates that the requisite degree of force was applied." Considering the totality of the circumstances, and giving the trial judge, as the finder of fact, the deference required on appeal, the evidence shows that Robinson touched R.W.'s breasts by using force as required by the statute. Robinson "grabbed [R.W.'s] breasts right behind [her] nipples and twisted as hard as he could ." (Emphasis added.) He also held on to R.W.'s breasts in that manner for "[a]bout maybe a minute" until R.W. smacked his hands sufficiently to finally get him to release her breasts.

Robinson relies upon this Court's decisions in Woodard v. Commonwealth, 27 Va. App. 405, 499 S.E.2d 557 (1998), and Johnson v. Commonwealth, 5 Va. App. 529, 365 S.E.2d 237 (1988), in arguing that his conviction should be reversed.

In Woodard, the victim found Woodard standing in the doorway of her home. Woodard, 27 Va. App. at 407, 499 S.E.2d 557. Woodard asked the victim to go out with him, and after she refused, he "squeezed her breasts, grabbed her between her legs, and departed." Id. The trial court found that the sexual abuse had been accomplished by intimidation – not by force or threat. Id. at 408, 499 S.E.2d 557. The trial court then convicted Woodard of sexual battery in violation of Code § 18.2-67.4. On appeal, this Court's analysis was confined to whether the sexual abuse had occurred by intimidation because this Court was bound by the trial court's explicit factual finding that Woodard had not used force to commit the sexual battery. The Court reversed the conviction, finding that the touching "was accomplished by surprise, not by intimidation." Id. at 410, 499 S.E.2d 557. In contrast to the situation in Woodard, the trial court in the case now before us found Robinson guilty because he used force to accomplish the sexual abuse. Therefore, this Court's decision in Woodard is not persuasive regarding the outcome of this case.

In Johnson, the evidence showed that Johnson positioned himself on a bed behind the victim, a fourteen-year-old boy, who was already lying in the bed. Johnson then put his arm around the victim to hold him very close to him and touched and fondled the victim's genitalia and buttocks.² Johnson, 5 Va. App. at 531, 365 S.E.2d 237. When the victim attempted to get up, Johnson "pushed [him] back down." Id. The victim then got up again, this time evading Johnson's attempt to grab him, went to the bathroom, and quickly left the house. Id. In that case, as in the one currently before us, the issue was whether the touching occurred "by force."³

While the facts in Johnson are distinguishable from the facts in this case (as noted in the panel dissent in Robinson ), the Court now sits en banc and, unlike the panel majority or dissent, is able to reconsider the holding in Johnson. Code § 17.1-402. "When the language of a statute is plain and unambiguous, we are bound by the plain meaning of that statutory language." Jones v. Commonwealth, 296 Va. 412, 415, 821 S.E.2d 540 (2018) (quoting Alston v. Commonwealth, 274 Va. 759, 769, 652 S.E.2d 456 (2007) ). It is clear to us, in considering the plain language of the statute (and the facts of Johnson, as noted in the Court's opinion), that Johnson was wrongly decided. Now sitting en banc , we overrule it. The elements...