THE CIRCUIT COURT OF AMELIA COUNTY No. CR17000069-00 Paul W.
Timothy A. Hennigan (The Nguyen Law Firm, PLC, on brief), for
Victoria Johnson, Assistant Attorney General (Mark R.
Herring, Attorney General, on brief) for appellee.
Present: Chief Judge Decker, Judges Humphreys, Petty, Beales,
Huff, Chafin, O'Brien, Russell, and Malveaux Argued at
REHEARING EN BANC
RANDOLPH A. BEALES JUDGE
appeal raises the question of what constitutes force in the
crime of sexual battery.
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 (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.
"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 (2004). So viewed, the victim, R.W.,
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."
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."
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.
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."
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."
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 (2003)
(quoting Jackson v. Virginia, 443 U.S. 307, 318-19
(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 (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 (quoting Kelly v. Commonwealth, 41 Va.App. 250,
257 (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.
of Robinson's assignment of error also requires statutory
interpretation, which we conduct de novo.
Commonwealth v. Amos, 287 Va. 301, 305-06 (2014);
Hodges v. Commonwealth, 45 Va.App. 118, 123 (2005)
§ 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 §
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 (1979);
Bondi v. Commonwealth, 70 Va.App. 79, 88-89 (2019);
Wactor v. Commonwealth, 38 Va.App. 375, 382-83
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.
relies upon this Court's decisions in Woodard v.
Commonwealth, 27 Va.App. 405 (1998), and Johnson v.
Commonwealth, 5 Va.App. 529 (1988), in arguing that his
conviction should be reversed.
Woodard, the victim found Woodard standing in the
doorway of her home. Woodard, 27 Va.App. at 407.
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.
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. 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.
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. Johnson, 5 Va.App. at 531. 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
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 (2018) (quoting Alston v. Commonwealth,
274 Va. 759, 769 (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 of the statute were
clearly met in that case. First, Johnson had touched the
genitalia and buttocks of the victim to sexually arouse or
gratify himself, satisfying the requirement in Code §
18.2-67.3 for sexual abuse, as defined in Code §
18.2-67.10. Second, the facts make clear that the touching
was accomplished against the will of the complaining witness
as the victim twice got up to try to get away from Johnson.
Finally, the element of force was met. The evidence showed
that Johnson positioned himself on the bed behind the victim,
and the victim testified that "[Johnson] woke me up and
was holding me real close to him" as Johnson
fondled the boy's genitals. Johnson, 5 Va.App.
at 531 (emphasis added).
the totality of the circumstances, including Johnson's
lying down by the victim on the bed and pulling the victim
"real close to him" at the time of the touching of
the victim's genitals, we conclude that the sexual abuse
performed against the will of the complaining witness was
accomplished by force. While we are rightly hesitant to
overturn previous decisions of this Court, there are
occasions where a wrongly decided case providing erroneous
precedent must be overturned. The opinion of this Court in
Johnson misinterpreted the plain language of the
statute, failed to apply the appropriate appellate standard