Simon v. Commonwealth of Va..

• Decision Date: 03 May 2011
• Docket Number: Record No. 0909–10–4.
• Citation: 58 Va.App. 194,708 S.E.2d 245
• Parties: Richard Abner SIMONv.COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

58 Va.App. 194

708 S.E.2d 245

Richard Abner SIMON

v.COMMONWEALTH of Virginia.

Record No. 0909–10–4.

Court of Appeals of Virginia, Alexandria.

May 3, 2011.

Jason S. Rucker (Rucker & Rucker, on brief), Falls Church, for appellant.Josephine F. Whalen, Assistant Attorney General II (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.Present: FELTON, C.J., ELDER, J. and BUMGARDNER, Senior Judge.ELDER, Judge.

Richard Abner Simon (appellant) appeals from his jury trial conviction for indecent liberties in violation of Code § 18.2–370. On appeal, he contends the trial court erred in refusing to instruct the jury on indecent exposure, proscribed by Code § 18.2–387, as a lesser-included offense. He also contends the evidence was insufficient to establish he acted with the lascivious intent necessary to support his conviction. We hold the court did not err in refusing the proffered instruction and that the evidence was sufficient to prove appellant acted with lascivious intent. Therefore, we affirm the challenged conviction.

I. BACKGROUND

In the summer of 2009, K.K., a ten-year-old girl, attended a summer day camp with her younger brother. Each weekday morning, K.K.'s father drove her and her brother to the parking lot of a CVS drug store in Arlington, where they boarded the bus for camp. On Wednesday, August 26, 2009, as K.K.'s father walked her and her brother from their car to the bus, K.K. noticed a truck with the driver's door open parked two spaces away from her father's vehicle. The parking space between father's vehicle and the truck was empty, and K.K. had a clear view of a man sitting in the truck's driver's seat. The man's body was turned toward his open vehicle door, and both his feet were on the asphalt surface of the parking lot. The man was wearing red shorts and had his legs “spread apart,” and K.K. “saw his private coming out of ... the inside edge of his shorts,” neither “a lot [n]or a little” but “[s]ort of in the middle.” K.K. did not say anything to her father at that time. That evening, however, she told her parents what had happened. Her father told her that if she saw the man again, she should be sure to tell him. Although K.K. did not see the man the next morning, Thursday, August 27, K.K.'s father spoke to the bus driver and “alerted [him] about [the] potential problem.”

On Friday, August 28, K.K. saw the man and his truck again, parked in the same parking space he had been parked in previously. K.K. told her father “that that was him” before boarding the bus for camp. The bus driver, as a result of what K.K.'s father had told him, paid special attention to the man, writing down the license plate number of the man's truck, a description of the truck, and a description of the man himself. The bus driver then gave that information to K.K.'s father when he walked K.K. and her brother to the bus that morning. K.K.'s father said the man was wearing the same red shorts K.K. had told him the man had been wearing on Wednesday morning. K.K.'s father also watched the man's movements. He said that while the bus was parked perpendicular to the rear of his vehicle and the man's truck, he saw the man walk around to the passenger side of his truck and squat down to tinker with something on his truck. The man positioned himself so that his legs were spread facing the bus. K.K.'s father, who was standing near the front of the bus, couldn't see the man's entire body because it was obscured by the truck. K.K.'s father also observed that when the bus left, the man got back into his truck and drove away. At appellant's trial, K.K.'s father identified appellant as the driver of the vehicle.

K.K.'s father telephoned police and reported what had happened. On Saturday, August 29, 2009, father and K.K. met with Arlington County Police Officer Lawrence King. Based on what K.K. and her father reported, Officer King, dressed in plain clothes, went to the CVS parking lot on the morning of Monday, August 31, 2009, before the bus arrived. He spotted the truck K.K. and her father had described, and he watched as it circled the parking lot “about three times” while “[the driver] was looking in the direction [from which] the bus [eventually came].” “As soon as the bus [left],” the truck drove away, as well. Officer King followed the truck, observed it commit a traffic infraction, and conducted a traffic stop. When Officer King inquired of the driver, appellant, why he was in the area, appellant said he was tired and was looking for a place to take a nap before he had to go to work at 9:00 a.m. Appellant admitted having been in the area on both August 26 and August 28, 2009, and he claimed his truck had “had a malfunction.”

Appellant was wearing brown pants and a collared shirt when Officer King stopped him. Because Officer King wanted to see if he could locate the red shorts K.K. and her father had described, he asked for and received permission to search appellant's truck, which contained “a lot of clutter.” A pair of red shorts with a hole in the crotch the size of a half-dollar or golf ball was found completely concealed beneath the driver's side floor mat. Two pornographic DVDs were found beneath the driver's seat. The cover of one of the DVDs displayed a semi-nude person, who was of indeterminate age but young in appearance, and referred, inter alia, to “just turned teen[s].” On the driver's side of a tool box in the truck's bed, police found a pornographic magazine which was titled “Best of Barely Legal” and depicted numerous semi-nude young women who were portrayed as being 18 years old.

Detective James Stone, a member of Arlington County's special victims unit, spoke to appellant after advising him of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Appellant claimed he found the magazine in a dumpster and kept it out of curiosity. When asked about the DVDs, he responded merely that they had been in the truck for a while. When Detective Stone inquired about the red shorts, appellant said he threw them under the mat because they were wet, then admitted he put them under the mat when he was pulled over, “and then went back to the [previous] story.” Appellant told Detective Stone that he worked in Washington, DC, at the time of his arrest. Detective Stone determined appellant resided on Stringfellow Road in Fairfax County, which was almost sixteen miles from the CVS parking lot.

At trial, appellant's counsel asked K.K. on cross-examination whether the man had looked at her the day she saw his “private.” K.K. testified, “I'm not absolutely sure, but I think I remember him looking at me once or twice, you know, glancing up,” on both of the days she saw him. On re-direct, the following colloquy took place:

[Prosecutor]: ... You said you think that he may have looked at you once or twice. I think you said he was glancing up. Did you mean that he was glancing up or you were glancing up?

[K.K.]: He was glancing up. I had looked at him once and I kept going but it was kind of hard not to look back at him once. So I looked back once and then I continued on my way.

[Prosecutor]: When you said he was glancing up, where was he looking?

[K.K.]: I don't remember but it seemed to me like he was glancing up like he was looking up at me from a different place he was looking originally.

On cross-examination of Officer King, appellant's counsel elicited testimony from him that when K.K. and her father gave their statements to him about what had happened on August 26 and 28, 2009, K.K. told him appellant did not look at her during the incident that occurred on August 26.

The red shorts were admitted into evidence, and the jurors were permitted to examine them. The shorts appeared to contain numerous small cuts in the fabric, and the appearance of the hole in the crotch of the shorts permitted the inference that the hole did not result from general wear and tear but rather that the crotch, too, had been intentionally cut to create the hole.

At the close of the Commonwealth's case, appellant moved to strike, contending, inter alia, that the evidence was insufficient to prove he acted with lascivious intent. The trial court denied the motion, concluding the Commonwealth had presented a prima facie case. Appellant chose to present no evidence and renewed his motion to strike, which the trial court again denied.

Appellant proffered a jury instruction on indecent exposure, averring that offense is lesser included in the charged offense of “statutory felony exposure to certain infants with lascivious intent.” The Commonwealth responded that although a footnote in Ashby v. Commonwealth, 208 Va. 443, 158 S.E.2d 657 (1968), implies indecent exposure is a lesser-included offense, the intent required to establish each offense is different. The trial court agreed with the Commonwealth, ruling that indecent exposure is not lesser included in indecent liberties, and refused appellant's proffered instruction.

The jury found appellant guilty of the charged offense. After sentencing, appellant noted this appeal.

II. ANALYSIS

A. ENTITLEMENT TO JURY INSTRUCTION

Settled principles provide that an accused is entitled to a jury instruction not only on the offense charged but also on any offenses lesser included in the offense charged, Commonwealth v. Dalton, 259 Va. 249, 253, 524 S.E.2d 860, 862 (2000), as long as the proffered instruction finds support in the evidence, Commonwealth v. Sands, 262 Va. 724, 729, 553 S.E.2d 733, 736 (2001). Here, appellant contends the trial court erred in ruling that the crime of indecent exposure was not lesser included in the indecent liberties offense with which he was charged and, thus, that the trial court erred in refusing to give his proffered instruction on indecent exposure. ¹ Appellant contends the Supreme Court of Virginia resolved this issue in Ashby, 208 Va. 443, 158 S.E.2d 657, and Hewitt v. Commonwealth, 213 Va. 605, 194...