FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Randy I. Bellows, Judge.
Nina J. Ginsberg; Jonathan Shapiro (DiMuroGinsberg, P.C.; Greenspun Shapiro P.C., on briefs), for appellant.
Kathleen B. Martin, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.
Present: Judges Frank, Petty and Senior Judge Haley Argued at Alexandria, Virginia
ROBERT P. FRANK JUDGE
Appellant, Samir Allen Farhoumand, was convicted in a bench trial of three counts of taking indecent liberties, to wit, sexually exposing himself to a child in violation of Code § 18.2-370. On appeal, he contends the evidence at trial was untied to any particular indictments. As a result, he reasons, the evidence was insufficient to sustain his convictions, his double jeopardy rights were violated, and he was unable to prepare an alibi defense. He further argues that the trial court incorrectly applied the definition of "exposed" as used in the indecent liberties statute. For the following reasons, we affirm.
Appellant's cousin, the victim, testified that appellant occasionally stayed at the victim's home during appellant's winter, spring, and summer breaks from college. The victim testified that during these visits appellant would sexually molest him, although the victim was never able to specify the exact dates of the abuse.
According to his testimony at trial, the first incident of abuse occurred during the winter of 2009 when the victim was in the seventh grade. The victim testified that the abuse continued "throughout the eighth grade." During those times, appellant would take the victim's hand and "masturbate himself." The victim pretended to be asleep during these incidents and rarely saw appellant's penis.
Referring to the abuse, the victim testified that "when I started ninth grade, yes, these events did occur." During the ninth grade, appellant would pull the victim on top of himself in such a way that their penises were touching. The victim stated appellant either pulled his own pants down or pulled his penis through the fly of his pants. Only once on these occasions did the victim actually see appellant's penis. On cross-examination, the victim testified that during appellant's spring and summer breaks when the victim was in ninth grade, appellant would take the victim's hand and place it on appellant's penis.
Prior to trial, appellant filed a motion for a bill of particulars. He argued that two of the original four indictments alleged insufficient information regarding the dates of the incidents of abuse. Based on the Commonwealth's representation that the victim could not be more specific, the trial court denied the motion. The trial court convicted appellant on the following allegations contained in the indictments:
2) On or between the 1st day of January, 2010 and the 3rd day of September, 2010, did feloniously expose his genital parts to a child under fifteen years of age.
3) On or between the 4th day of September, 2010 and the 31st day of December, 2010, did feloniously expose his genital parts to a child under fifteen years of age.
4) On or between the 1st day of January, 2011 and the 3rd day of September, 2011, did feloniously expose his genital parts to a ...