Siquina v. Com.

Decision Date22 December 1998
Docket NumberRecord No. 2611-97-4.
Citation28 Va. App. 694,508 S.E.2d 350
PartiesDiego Cotoc SIQUINA v. COMMONWEALTH of Virginia.
CourtVirginia Court of Appeals

Gary H. Smith, Alexandria, for appellant.

Eugene Murphy, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., and WILLIS and ANNUNZIATA, JJ.

ANNUNZIATA, Judge.

Diego Cotoc Siquina ("appellant") was convicted of taking indecent liberties with a child and attempted rape. Appellant challenges the sufficiency of the evidence as to both convictions. For the reasons that follow, we affirm.

Under familiar principles, we view the evidence in the light most favorable to the Commonwealth, the party prevailing below, granting to it all reasonable inferences fairly deducible therefrom. Clifton v. Commonwealth, 22 Va.App. 178, 180, 468 S.E.2d 155, 156 (1996). We will not reverse the judgment of the trial court unless it is plainly wrong or without evidence to support it. Code § 8.01-680.

Muaricio Maradriaga and appellant went to the apartment of M.F., a friend of Maradriaga, and suggested they dine together. M.F. agreed to prepare food and invited them into her kitchen while she did so. M.F. did not know appellant. Once the food was ready, M.F.'s guests dined in the kitchen.

After dinner, M.F. put on a video for her five-year-old daughter, V.B., to watch in the apartment's bedroom. Appellant was in the bedroom alone with V.B., when he put his hand over her mouth, grabbed and twisted her hand, and took her into an adjacent bathroom. Closing the door behind him, appellant kissed V.B., placing his tongue in her mouth. Appellant then told the child to stoop down over the toilet. Demonstrating what appellant wanted her to do at trial, V.B. indicated that she bent over the toilet with her head toward the tank and her buttocks facing out. Appellant unzipped his pants, at which time V.B. saw his underwear. V.B. never saw appellant's genitals.

M.F. quickly noticed that the bathroom door was closed and that V.B. and appellant could not be found anywhere in the apartment. Her suspicions raised, M.F. went to the door and pulled it open. M.F. saw appellant and V.B. standing up straight beside the toilet and facing her. Appellant was immediately behind and very close to V.B., almost touching her when M.F. first saw them. As she pulled V.B. out of the room, M.F. saw that appellant's pants and underwear were pulled down to his feet, exposing his erect penis.

I. SUFFICIENCY OF EVIDENCE AS TO TAKING INDECENT LIBERTIES

Code § 18.2-370 provides that any person who knowingly and intentionally "expose[s] his or her sexual or genital parts to any child" with lascivious intent is guilty of a Class 6 felony. Appellant contends the evidence was insufficient for the trial court to convict him of this crime, arguing that, in order for one to expose his sexual or genital parts, the victim must actually have seen such parts. We disagree.

The origin and contemporary definition of the verb "expose" does not require that someone actually perceive what is being displayed. "Expose" originated as an adaptation of the Latin verb "exponere," which includes the following definitions: 1) to put or bring out into the open, or 2) to put on show or display. 5 The Oxford English Dictionary 578 (2d ed.1989); Oxford Latin Dictionary 651 (1982). Today, the definition has remained true to its roots. Webster's Third New International Dictionary 802 (1981), defines "expose" as "to lay open to view." In Black's Law Dictionary 579 (6th ed.1990), "expose" is defined as: "To show publicly; to display; to offer to the public view...." Black's definition of "indecent exposure" is also instructive:

[This t]erm refers to exhibition of those private parts which instinctive modesty, human decency or self-respect require shall be kept covered in [the] presence of others. Exposure of [a] person becomes indecent when it occurs at such time and place where [a] reasonable person knows or should know his act will be open to observation of others.

Id. at 768. As these definitions indicate, whether an object is actually seen by its intended audience is irrelevant to whether that object has been exposed.

Furthermore, the Supreme Court of Virginia's interpretation of the word "expose," as applied in the context of common law and statutory indecent exposure prosecutions, also refutes appellant's argument. Unless it is clear from express language that the legislature intended to deviate from the common law, we will construe a statute "`as near to the reason of common law'" as possible. Wicks v. City of Charlottesville, 215 Va. 274, 276, 208 S.E.2d 752, 755 (1974) (quoting Chichester v. Vass, 5 Va. (1 Call) 83, 102 (1797)), appeal dismissed, 421 U.S. 901, 95 S.Ct. 1548, 43 L.Ed.2d 769 (1975). "[T]he Legislature is presumed to have known and to have had the common law in mind in the enactment of a statute." Id. Thus, when evaluating the meaning of the word "expose" as it is used in Code § 18.2-370, we may appropriately employ a common law analysis.

According to common law, indecent exposure is an offense when it takes place "in a public place in such a manner that the act is seen or is likely to be seen by casual observers...." Noblett v. Commonwealth, 194 Va. 241, 245, 72 S.E.2d 241, 243 (1952) (emphasis added). In Wicks, the Supreme Court adopted this analysis by upholding an indecent exposure conviction under the City Code of Charlottesville even though no one could testify with certainty that defendant's genitals had been seen. Wicks, 215 Va. at 275-76 & n. 1, 208 S.E.2d at 754 & n. 1. The Court found that the evidence clearly established the defendant's exposure based on the fact that the arresting officer saw him holding his hand in front of his pants and urinating on a public street. Id.

Based on the foregoing principles, we find that appellant's construction of the word "expose" as it is used in Code § 18.2-370 is drawn too narrowly. We hold that this section proscribes the intentional display by an adult, with lascivious intent, of his or her genitals in the presence of a child where a reasonable probability exists that they might be seen by that child, regardless of the child's actual perception of such a display.

Here, appellant surreptitiously and forcibly took a five-year-old girl to the seclusion of a bathroom where he removed his pants and undershorts, exposing his erect penis under circumstances where it was likely to be seen by her. Given our construction of Code § 18.2-370 and viewing the evidence in the light most favorable to the Commonwealth, we find that the evidence was sufficient to establish beyond a reasonable doubt that appellant took indecent liberties with a child.

II. SUFFICIENCY OF EVIDENCE AS TO ATTEMPTED RAPE

Code § 18.2-61 criminalizes rape, which includes "sexual intercourse ... with a child under age thirteen." Attempted rape consists of "the intent to engage in sexual intercourse, and some direct, yet ineffectual, act toward its consummation." Fortune v. Commonwealth, 14 Va.App. 225, 228, 416 S.E.2d 25, 27 (1992). Appellant contends the evidence at trial neither established the requisite intent to rape nor demonstrated a direct act done toward the commission of rape. We disagree.

A. SPECIFIC INTENT

The specific intent to rape "may, like any other fact, be shown by circumstances. Intent is a state of mind which can be evidenced only by the words or conduct of the person who is claimed to have entertained it." Banovitch v. Commonwealth, 196 Va. 210, 216, 83 S.E.2d 369, 373 (1954), quoted in Bell v. Commonwealth, 11 Va.App. 530, 533, 399 S.E.2d 450, 452 (1991)

. In determining intent, the fact finder is entitled to draw inferences from proved facts, so long as the inferences are reasonable and justified. Webb v. Commonwealth, 204 Va. 24, 34, 129 S.E.2d 22, 29 (1963). See Fortune, 14 Va. App. at 228,

416 S.E.2d at 27 ("Specific intent to commit rape may be inferred from conduct if such intent follows naturally from the conduct proven. Where the conduct of the accused... points with reasonable certainty to a specific intent to commit rape, intent is established."). Moreover, in criminal attempt cases, "the fact finder is often allowed broad latitude in determining the specific intent of the actor." Id. at 229, 416 S.E.2d at 27 (inferring the specific intent to rape when the defendant, without...

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