Christopher Dustin Mayberry v. Commonwealth of Virginia ( 2022 )

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Chief Judge Decker, Judge O’Brien and Senior Judge Haley
Argued by teleconference
CHRISTOPHER DUSTIN MAYBERRY
MEMORANDUM OPINION* BY
v. Record No. 1380-21-2 JUDGE JAMES W. HALEY, JR.
OCTOBER 18, 2022
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF APPOMATTOX COUNTY
S. Anderson Nelson, Judge
Jordan B. Davies (Jordan B. Davies, PLLC, on brief), for appellant.
Lucille M. Wall, Assistant Attorney General (Jason S. Miyares,
Attorney General, on brief), for appellee.
A jury convicted Christopher Dustin Mayberry of aggravated sexual battery, contributing to
the delinquency of a minor, and four counts of taking indecent liberties with a minor.1 On appeal,
Mayberry argues that the trial court erroneously permitted the victim to testify by closed-circuit
television under Code § 18.2-67.9. Mayberry also challenges the sufficiency of the evidence to
sustain his aggravated sexual battery conviction and two of his convictions for taking indecent
liberties with a minor. For the following reasons, we affirm the trial court’s judgment in part and
reverse it in part.
BACKGROUND
On appeal, we review the evidence “in the ‘light most favorable’ to the Commonwealth,
the prevailing party in the trial court.” Hammer v. Commonwealth, 74 Va. App. 225, 231 (2022)
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
The trial court dismissed related charges of displaying child pornography and object
sexual penetration.
(quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). Doing so requires us to “discard the
evidence of the accused in conflict with that of the Commonwealth, and regard as true all the
credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom.”
Cady, 300 Va. at 329 (quoting Commonwealth v. Perkins, 295 Va. 323, 324 (2018)).
In March 2019, thirty-two-year-old Mayberry was living with his girlfriend, Kelsey Angel,
and her seven-year-old daughter, K.M. On March 27, 2019, Angel became ill at work and brought
K.M. home from school early. Angel slept in her bedroom while K.M. played in the living room,
and Mayberry worked outside on his pickup truck, near Angel’s van and a car. When K.M. went
outside to retrieve her bookbag from Angel’s van, Mayberry told her that she would “be cleaning
out” the car with him. She placed her bookbag in the house and returned to assist him.
K.M. found Mayberry urinating behind his pickup truck. Mayberry asked K.M. whether she
“want[ed] to touch it,” and she “briefly touched” his exposed penis. Mayberry then entered the car
and told her to “get in on the other side.” After K.M. complied, Mayberry removed several
“inappropriate” DVDs from the glovebox and showed them to her, saying that she “would have to
watch them” with him “one day when [Angel] was not home.” As Mayberry played “inappropriate
videos” of “naked people” on his cell phone, K.M. saw that “his private [was] out” and he “was
pushing his area up and down.” Over the material directly covering K.M.’s intimate parts, he
placed “two fingers” on the “crack” of her “genitals” and began “circling” them with his fingers.
Mayberry also grabbed K.M.’s hand and used it to push “up and down on his private parts” before
continuing to “do[] it by himself” until “some white stuff came out.” Afterward, Mayberry
“clean[ed] himself up” with a “pair of gloves” and placed them in his truck “so [Angel] couldn’t
find them.” He warned K.M. not to “tell anybody” what he had done because they would “both go
to jail”; he also said that he “had to clear” his cell phone’s “history” so Angel would not discover it.
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That evening, K.M. removed her clothes and placed them in the laundry hamper. She later
disclosed the incident to her father’s girlfriend.
Three days after the incident, Appomattox County Sheriff’s Investigator Christopher Tanner
executed a search warrant for Angel’s home and Mayberry’s pickup truck. In a dryer inside the
house, Tanner found several rags, a pair of gloves, and K.M.’s clothing worn during the incident.
Police prepared a “PERK”2 and obtained a buccal swab of Mayberry’s DNA. Tanner also
interviewed K.M., who drew a circle near the vagina on a diagram of a female body to indicate
where Mayberry had touched her genitals.
Tanner conducted three audio-recorded interviews with Mayberry. Initially denying any
wrongdoing, Mayberry became “emotional” and confessed that he had allowed K.M. to touch his
penis while he was urinating behind the truck. He admitted that he had asked her whether she
“wanted to touch it” and warned her afterward, “don’t say nothing to nobody.” Mayberry also
admitted that he “made a bad decision” but maintained that he “never touched” K.M. Mayberry
wrote two letters to K.M., apologizing “for everything” and stating his desire to become a “true
father/stepfather” to her.
Police arrested Mayberry, and the Commonwealth indicted him for aggravated sexual
battery, contributing to the delinquency of a minor, and four counts of taking indecent liberties with
a minor. Before trial, the Commonwealth moved the trial court to allow K.M. to testify via
two-way, closed-circuit television under Code § 18.2-67.9. At a hearing on the motion, Sara
Addair, an “expert in childhood trauma” and its effect “on children under ten testifying in open
court,” testified that “childhood trauma” is “any kind of negative event that emotionally impacts
a child.” She explained that children who have experienced such trauma “usually” suffer from
2
At trial, Yelitza Rivera-Rodriguez, a forensic scientist, testified that “PERK” is an
acronym for “Physical Evidence Recovery Kit.” DNA samples from K.M.’s hands,
“thighs/external genitalia,” and “[v]aginal/cervical” area comprised the PERK.
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“PTSD,” which often manifests as recurrent “distressing thoughts and memories, nightmares,
and avoidant behavior”; other symptoms include “hypervigilance, hyper arousal, irritability,” and
“negative beliefs about self.”
Addair had been conducting weekly, one-hour therapy sessions with K.M. for about
seven months since the incident. During those sessions, K.M. “shut down” and cried “any time”
Addair discussed Mayberry or court. K.M. identified where the assault had occurred but could
not “handle” discussing “anything to do with” Mayberry or the assault. K.M. also had disclosed
that “she would be very scared if she had to see [Mayberry] again.” Based on Addair’s
observations and K.M.’s statements, Addair opined that K.M.’s “PTSD would get significantly
worse” if she had to testify in front of Mayberry in open court. According to Addair, “physically
seeing [Mayberry] in person would” terrify K.M. and cause her to reexperience her trauma from
the assault, which would exacerbate her PTSD.
Addair opined that the likely consequence of K.M.’s reexperiencing her trauma would be
“increased anger outbursts and defiance” at home and school and, “potentially,” a “crisis
situation.” She opined that K.M. might become “more physically aggressive” and “potentially
do something to hurt herself,” including “suicide.” She cautioned that “even for a kid as young
as eight[,] I’ve seen that happen.” Considering those risks, Addair concluded that testifying by
closed-circuit television presented “less of a chance of exacerbating [K.M.’s] PTSD symptoms,”
although K.M. would still be “nervous.” Acknowledging that “testifying in court is nerve
racking for anyone,” Addair clarified, “I don’t think [testifying in court] would make her
terrified. I think seeing him in court would make her terrified.”
The trial court found that Addair had maintained “constant interaction” with K.M. since
the incident and her testimony demonstrated that K.M. was “very scared,” suffered from PTSD,
and was unable to discuss the incident. Continuing, the trial court found that, if compelled to
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testify before Mayberry, K.M. would “re-experience the trauma,” her PTSD would “worsen,”
and a “crisis situation” would develop where she would “suffer outbursts, aggression, and . . .
potentially hurt herself.” Based on those circumstances, the trial court found that there was “a
substantial likelihood that K.M. . . . will suffer severe emotional trauma if required to testify” in
Mayberry’s presence. Accordingly, it granted the Commonwealth’s motion.
At trial, K.M. testified via closed-circuit television about the assault as detailed above and
added that the car was not “messy” and Mayberry had not been “cleaning” it. Angel testified
that Mayberry “frequently brought stuff” into the house to wash in the laundry machine,
including on the day of the incident. After Mayberry’s arrest, she received two apology letters
from him addressed to K.M. Tanner testified regarding the execution of the search warrant,
K.M.’s interview, and Mayberry’s admissions. He also authenticated the first apology letter
Mayberry had written and the diagram K.M. had marked to indicate where Mayberry had
touched her genitals.
At the conclusion of the Commonwealth’s case, Mayberry argued that the evidence failed
to prove the offense alleged in the indictment for one of the indecent liberties charges, in case
number CR19000304-00. He asserted that although Code § 18.2-370 contains “many
subsections,” the indictment’s language required the Commonwealth to prove specifically “that
he [had] proposed to feel” K.M.’s genitals in violation of Code § 18.2-370(A)(3). Continuing, he
argued that the evidence established that he had touched K.M.’s genitals but not that he had
proposed to do so. Mayberry also moved to strike the indictment for a second indecent liberties
charge, in case number CR19000252-00, arguing that the evidence failed to prove that he had the
requisite “lascivious intent” when he invited K.M. inside the car. The trial court denied the
motions.
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Testifying for the defense, Yelitza Rivera-Rodriguez said that forensic DNA testing did
not detect blood, semen, or Mayberry’s DNA on K.M.’s clothing worn during the assault, the
rags and gloves collected from the dryer, or the physical samples included in the PERK. She
acknowledged, however, that “washing and drying” removes “any bodily fluids” from clothing.
At the conclusion of the evidence, Mayberry renewed his motion to strike on the same
grounds, adding that the evidence failed to exclude the reasonable hypothesis that when he
invited K.M. inside the car, he had intended only to clean the vehicle rather than “expose
himself.” The trial court denied the motion in relevant part.3 The jury convicted Mayberry of
aggravated sexual battery, contributing to the delinquency of a minor, and four counts of taking
indecent liberties with a minor. Mayberry appeals.
ANALYSIS
I. K.M.’s Unavailability under Code § 18.2-67.9
Mayberry argues that the trial court erred by finding that K.M. was unavailable to testify
under Code § 18.2-67.9 because the evidence did not establish a “substantial likelihood” that she
would “suffer severe emotional trauma” if compelled to testify in Mayberry’s presence. He
maintains that Addair testified only that K.M. “would potentially have a crisis situation” and
“could suffer” exacerbated PTSD symptoms, which “falls short” of the statutory “substantial
likelihood” requirement. Mayberry also argues that K.M’s symptoms were “de minimus” and
did not constitute “severe emotional trauma.” We disagree.
This Court “review[s] a trial court’s decision to admit or exclude evidence” for abuse of
discretion and “will not disturb a trial court’s decision to admit evidence absent a finding of
abuse of that discretion.” Kenner v. Commonwealth, 299 Va. 414, 423 (2021) (alteration in
original) (quoting Avent v. Commonwealth, 279 Va. 175, 197 (2010)). “When evaluating a trial
3
The trial court dismissed the object sexual penetration charge.
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court’s evidentiary ruling, we do not substitute our judgment for that of the trial court. Rather,
we consider only whether the record fairly supports the trial court’s action.” Carter v.
Commonwealth, 293 Va. 537, 543 (2017) (quoting Grattan v. Commonwealth, 278 Va. 602, 620
(2009)). “Only when reasonable jurists could not differ can we say an abuse of discretion has
occurred.” Lambert v. Commonwealth, 70 Va. App. 740, 749 (2019) (quoting Thomas v.
Commonwealth, 44 Va. App. 741, 753, adopted upon reh’g en banc, 45 Va. App. 811 (2005)).
The “abuse-of-discretion standard [also] includes review to determine that the discretion was not
guided by erroneous legal conclusions.” Carter, 293 Va. at 543-44 (alteration in original)
(quoting Porter v. Commonwealth, 276 Va. 203, 260 (2008)).
“The measure of the burden of proof with respect to factual questions underlying the
admissibility of evidence is proof by a preponderance of the evidence.” Campos v.
Commonwealth, 67 Va. App. 690, 702 (2017) (quoting Witt v. Commonwealth, 215 Va. 670, 674
(1975)). A trial court resolves the factual questions underlying admissibility. Bloom v.
Commonwealth, 262 Va. 814, 821 (2001) (quoting Witt, 215 Va. at 674). Moreover, when
basing those findings on expert witness testimony, the “fact finder may consider the basis for the
expert’s opinion.” Parrish v. Commonwealth, 38 Va. App. 607, 613 (2002). Such findings are
binding on appeal “unless ‘plainly wrong’ or without evidence to support them.” Bloom, 262
Va. at 821 (quoting Campos, 67 Va. App. at 702).
A trial court may allow “testimony of the child be taken by closed-circuit television . . . if
it finds that the child is unavailable to testify in open court in the presence of the defendant, the
jury, the judge, and the public” because of “[t]he substantial likelihood, based upon expert
testimony, that the child will suffer severe emotional trauma from so testifying.” Code
§ 18.2-67.9(2). That statute allows the Commonwealth to “protect[] child witnesses from the
trauma of testifying” in a “face-to-face confrontation with the defendant” upon “an adequate
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showing of necessity.” Parrish, 38 Va. App. at 613 (quoting Maryland v. Craig, 497 U.S. 836,
855 (1990)); see also Johnson v. Commonwealth, 40 Va. App. 605, 615 (2003) (holding that
Code § 18.2-67.9 “requires a ‘case-specific’ showing of necessity”).
Although general nervousness about testifying in open court does not constitute “severe
emotional trauma” under the statute, we have affirmed a trial court’s decision to allow child
testimony via closed-circuit television when an expert testified that the child “would” experience
severe emotional trauma that “could” manifest in “nightmares, bed-wetting, doing poorly in
school, and lack of appetite.” Parrish, 38 Va. App. at 612-14. In Parrish, the trial court’s ruling
rested on “the victim’s age, that her father was the accused perpetrator, and [the] expert
testimony.” Id. at 614. Similarly, we have affirmed a finding that a child would suffer severe
emotional trauma based on expert testimony that the child had “low self-esteem,” felt
“ashamed,” and reported that she would “run out of court” if asked to testify. Johnson, 40
Va. App. at 617-18.
Here, Addair had met with K.M. weekly for approximately seven months. During those
sessions, K.M. expressed fear of the prospect of seeing Mayberry again and whenever Addair
attempted to discuss Mayberry or court, K.M. “shut down” and cried. Based on those
circumstances and her extensive clinical experience, Addair opined that if compelled to testify in
front of Mayberry, K.M.’s “PTSD would get significantly worse” because “seeing [Mayberry] in
person would” cause K.M. to become “terrified” and reexperience her trauma. (Emphasis
added). See id. at 610-11; cf. id. at 617-18 (affirming the trial court’s ruling where expert opined
that the child would “run out of court” if compelled to testify in person). K.M.’s reexperienced
trauma, according to Addair, likely would manifest in “increased anger outbursts and defiance”
at home and school, and her PTSD symptoms could escalate into a “crisis situation” involving
“anger outbursts,” physical aggression, and even suicide. Indeed, Addair cautioned that the risk
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of suicide was not mere speculation because she was aware of suicide by children as young as
eight years old. Moreover, she expressly distinguished K.M.’s likely trauma if compelled to
testify in front of Mayberry from generalized courtroom anxiety. She opined that although K.M.
would still be “nervous” testifying by closed-circuit television, she would not be “terrified” in
doing so.
Although Addair, at times, opined that testifying in Mayberry’s presence “would
potentially” cause a “crisis situation,” and K.M. “could” suffer emotional outbursts, that
testimony does not render the trial court’s finding plainly wrong or without evidentiary support.
The trial court did not fix upon isolated statements but considered Addair’s testimony as a whole.
Cf. Parrish, 38 Va. App. at 614-15 (holding trial court’s ruling declaring child unavailable under
Code § 18.2-67.9 was not plainly wrong considering child’s age, victimization by father, and
expert testimony). Accordingly, we cannot conclude from the record that the trial court erred by
finding a substantial likelihood, based on expert testimony, that K.M. would suffer severe
emotional trauma if forced to testify against Mayberry in open court.
II. Sufficiency of the Evidence
Mayberry next challenges the sufficiency of the evidence to sustain the conviction for
aggravated sexual battery and two of the convictions for taking indecent liberties with a minor.
“When reviewing the sufficiency of the evidence, ‘[t]he judgment of the trial court is presumed
correct and will not be disturbed unless it is plainly wrong or without evidence to support it.’”
McGowan v. Commonwealth, 72 Va. App. 513, 521 (2020) (alteration in original) (quoting Smith
v. Commonwealth, 296 Va. 450, 460 (2018)). “In such cases, ‘[t]he Court does not ask itself
whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’”
Id. (alteration in original) (quoting Secret v. Commonwealth, 296 Va. 204, 228 (2018)). “Rather,
the relevant question is whether ‘any rational trier of fact could have found the essential elements
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of the crime beyond a reasonable doubt.’” Vasquez v. Commonwealth, 291 Va. 232, 248 (2016)
(quoting Williams v. Commonwealth, 278 Va. 190, 193 (2009)). “If there is evidentiary support
for the conviction, ‘the reviewing court is not permitted to substitute its own judgment, even if its
opinion might differ from the conclusions reached by the finder of fact at the trial.’” McGowan,
72 Va. App. at 521 (quoting Chavez v. Commonwealth, 69 Va. App. 149, 161 (2018)). To the
extent that Mayberry’s assignments of error involve questions of law or statutory interpretation,
we review such questions de novo. Peters v. Commonwealth, 72 Va. App. 378, 387 (2020).
A. Aggravated Sexual Battery
Mayberry first argues that the evidence failed to prove he committed aggravated sexual
battery because K.M.’s testimony was “inherently incredible” as a matter of law. Mayberry,
however, did not preserve that argument for appellate review.
“No ruling of the trial court . . . will be considered as a basis for reversal unless an objection
was stated with reasonable certainty at the time of the ruling, except for good cause shown or to
enable this Court to attain the ends of justice.” Rule 5A:18. Accordingly, “this Court ‘will not
consider an argument on appeal [that] was not presented to the trial court.’” Farnsworth v.
Commonwealth, 43 Va. App. 490, 500 (2004) (quoting Ohree v. Commonwealth, 26 Va. App. 299,
308 (1998)). Moreover, appellate courts “will not consider an argument that differs from the
specific argument presented to the trial court, even if it relates to the same general issue.” Edwards
v. Commonwealth, 41 Va. App. 752, 761 (2003) (en banc) (citing Floyd v. Commonwealth, 219 Va.
575, 584 (1978)). “Specificity and timeliness undergird the contemporaneous objection rule [and]
animate its highly practical purpose.” Bethea v. Commonwealth, 297 Va. 730, 743 (2019) (quoting
Dickerson v. Commonwealth, 58 Va. App. 351, 356 (2011)); Brown v. Commonwealth, 279 Va.
210, 217 (2010). “Not just any objection will do. It must be both specific and timely—so that the
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trial judge would know the particular point being made in time to do something about it.” Bethea,
297 Va. at 743.
In a jury trial, the defendant preserves his objections to the
sufficiency of the evidence in a motion to strike at the conclusion
of the Commonwealth’s case if he elects to not introduce evidence
of his own, or in a motion to strike at the conclusion of all the
evidence or a motion to set aside the verdict if he does elect to
introduce evidence of his own.
Commonwealth v. Bass, 292 Va. 19, 33 (2016). In his motion to strike at the conclusion of the
Commonwealth’s case and his renewed motion to strike, Mayberry did not challenge the
sufficiency of the evidence to prove the aggravated sexual battery charge. In addition, he did not
argue specifically that K.M.’s testimony was inherently incredible as a matter of law during
either motion, nor did he move to set aside the jury’s verdict on that basis. Thus, the record
demonstrates that Mayberry did not present to the trial court the argument he now raises on
appeal. Accordingly, the argument is waived. See Ray v. Commonwealth, 74 Va. App. 291,
306-07 (2022) (holding defendant in a jury trial failed to preserve sufficiency challenge under
Rule 5A:18 where he did not argue inherent incredibility in motions to strike or set aside the
verdict). Although there are exceptions to Rule 5A:18, Mayberry has not invoked them, and the
Court will not do so sua sponte. Edwards, 41 Va. App. at 761.
B. Indecent Liberties Conviction (Case Number CR19000304-00)
Mayberry contends that the evidence was insufficient to sustain his conviction under
Code § 18.2-370(A)(3) because it failed to prove that he proposed to K.M. that he feel or fondle
her genitals. He concedes that the evidence established that he “felt or fondled” K.M. but argues
that “actual touching, or sexual battery, is already criminalized” under Code § 18.2-67.3. Code
§ 18.2-370(A)(3), according to Mayberry, proscribes the proposal to touch a child’s genitals, not
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the touching itself. Therefore, because there was no evidence that “he proposed to touch” K.M.,
Mayberry asserts that his conviction must be reversed.4 We agree.
“The primary purpose of statutory interpretation ‘is to ascertain and give effect to
legislative intent.’” Holloway v. Commonwealth, 72 Va. App. 370, 375 (2020) (quoting Botkin
v. Commonwealth, 296 Va. 309, 314 (2018)). This Court “determines legislative intent from the
words employed in the statute.” Botkin, 296 Va. at 314 (quoting Alger v. Commonwealth, 267
Va. 255, 259 (2004)). “When the language of a statute is unambiguous, we are bound by the
plain meaning of the words used.” Antisdel v. Ashby, 279 Va. 42, 48 (2010). Further, in
interpreting a statute, “[t]he Code of Virginia constitutes a single body of law, and other sections
can be looked to where the same phraseology is employed.” Hart v. Commonwealth, 18
Va. App. 77, 79 (1994) (quoting King v. Commonwealth, 2 Va. App. 708, 710 (1986)). When
interpreting interrelated statutes, “we will read and construe them together in order to give full
meaning, force, and effect to each.” Antisdel, 279 Va. at 48. “Statutes which are not
inconsistent with one another, and which relate to the same subject matter, are in pari materia,
and should be construed together.” Butcher v. Commonwealth, 298 Va. 392, 403 (2020)
(quoting Prillaman v. Commonwealth, 199 Va. 401, 406 (1957)).
We start this analysis with recognizing that Code § 18.2-370(A)(3) does not define the
word “propose.” “[W]hen a particular word in a statute is not defined therein, a court must give
4
In general, Code § 18.2-370(A)(3) requires proof that the accused with lascivious intent,
knowingly and intentionally “propose[d] that any such child feel or fondle his own sexual or
genital parts or the sexual or genital parts of [the accused] or propose that [the accused] feel or
fondle the sexual or genital parts of any such child.” (Emphasis added). Nevertheless, “[i]t is
well settled that instructions given without objection become the law of the case and thereby
bind the parties in the trial court and this Court on review.” Spell v. Commonwealth, 72
Va. App. 629, 635 (2020) (quoting Bryant v. Commonwealth, 295 Va. 302, 307 (2018)). The
trial court instructed the jury, without objection, that the Commonwealth was required to prove
specifically that Mayberry “proposed that he feel or fondle the sexual or genital parts of K.M.”
(Emphasis added). “This jury instruction was uncontested and thus, at a minimum, is the law of
the case.” Wagoner v. Commonwealth, 63 Va. App. 229, 248 (2014), aff’d, 289 Va. 476 (2015).
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it its ordinary meaning.” Moyer v. Commonwealth, 33 Va. App. 8, 35 (2000) (en banc); see also
Eberhardt v. Commonwealth, 74 Va. App. 23, 32 (2021) (“An undefined term in a statute may be
defined using its standard dictionary definition.”). The word “propose” means to “form or
declare a plan or intention”; “set before the mind”; “offer for consideration, discussion,
acceptance, or adoption”; or “set up or declare as a formed purpose.” Propose, Webster’s Third
New Int’l Dictionary (1981). By contrast, the word “feel” means to “caress” or “examine . . . by
such methods as touching. . . .” Feel, Webster’s, supra (emphasis added). Similarly, the word
“fondle” denotes either “to handle tenderly, lovingly, or lingeringly” or “to show affection or
desire by caressing.” Fondle, Webster’s, supra.5 We recognize that proposals are not limited to
verbal communications. Nonetheless, by its plain and unambiguous terms, Code
§ 18.2-370(A)(3) distinguishes between the completed act of “feeling or fondling” a child and
“proposing” to do so.
Consistent with those definitions, both the Supreme Court of Virginia and the General
Assembly have recognized that sexually touching a child’s genitals and proposing to do so are
distinct crimes. The Supreme Court has held that, if done with lascivious intent,“[t]he simple act
of proposing or inviting constitutes the completed crime” of taking indecent liberties with a
minor and proof of “any sexual touching of or by the victim is not required.” Hix v.
Commonwealth, 270 Va. 335, 347 (2005) (interpreting Code § 18.2-370(A)(1)); accord Sandoval
v. Commonwealth, 64 Va. App. 398, 417 (2015) (same). Conversely, sexual touching of a
child’s genitals is proscribed in Code § 18.2-67.3.6
5
Webster’s Third New International Dictionary contains additional definitions of the
words propose, feel, and fondle; we recite only those relevant to this case.
6
An accused is guilty of aggravated sexual battery if, with the intent to sexually molest,
arouse, or gratify any person, he intentionally touches the genitalia, anus, groin, breast, or
buttocks—or the material directly covering such intimate parts—of a child under the age of
thirteen years. See Code §§ 18.2-67.3 (aggravated sexual battery), 18.2-67.10(2), (6). Read
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The record does not contain any evidence about the touching other than K.M.’s testimony
that Mayberry touched her by circling his fingers around the outside of her vagina. Thus, the
evidence before the jury did not establish that Mayberry proposed—or declared his plan or
intent—to touch K.M.’s genitals. Rather, the evidence established that he sexually touched
K.M.’s genitals without making any statement concerning his desire or intent. Although that
evidence permitted the jury to find that Mayberry committed aggravated sexual battery, it did not
establish the indecent liberties offense charged in case number CR19000304-00. See Code
§ 18.2-67.3.
Recognizing that Mayberry did not expressly “propose” that he touch K.M.’s genitals, the
Commonwealth nevertheless contends that Mayberry implicitly “proposed” to do so. Relying on
Robertson v. Commonwealth, No. 2564-08-2 (Va. Ct. App. Feb. 23, 2010),7 the Commonwealth
asserts that “by reaching out his hand” to touch K.M.’s genitals, Mayberry tacitly communicated
a proposal to touch her genitals. We disagree.
The record contains no evidence that Mayberry gestured or otherwise meant to express or
emphasize any thought or idea by reaching to touch K.M. See Viney v. Commonwealth, 269 Va.
296, 300 (2005) (defining a “gesture” as “a movement usually of the body or limbs that
symbolizes or emphasizes an idea, sentiment, or attitude”). Instead, the evidence established that
Mayberry touched K.M.’s genitals to satisfy his prurient desire, regardless of whether she knew
of his intent. Cf. id. (finding that defendant gestured to victim by making eye contact with her
together, Code §§ 18.2-370(A)(3) and 18.2-67.3(A) clearly prohibit related, but distinct conduct:
the former, the proposal to sexually touch a child’s genitals; the latter, the act of doing so. See
Butcher, 298 Va. at 403 (quoting Prillaman, 199 Va. at 406) (observing that statutes in pari
materia must be construed together to give meaning to each).
7
Although “Rule 5A:1(f) provides that unpublished opinions may be cited as
informative, ‘unpublished opinions are merely persuasive authority and not binding precedent.’”
Coffman v. Commonwealth, 67 Va. App. 163, 172 (2017) (quoting Baker v. Commonwealth, 59
Va. App. 146, 153 n.3 (2011)).
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and looking down at his groin). To be sure, accepting the Commonwealth’s argument under the
facts of this case would effectively eliminate the word “propose” from Code § 18.2-370(A)(3) by
conflating the discrete acts of touching a child’s genitals and proposing to do so. See
Chesapeake Hospital Authority v. State Health Comm’r, ___ Va. ___, ___ (May 19, 2022)
(“Courts are not permitted to rewrite statutes. This is a legislative function. The manifest
intention of the legislature, clearly disclosed by its language, must be applied.” (quoting
Anderson v. Commonwealth, 182 Va. 560, 566 (1944))).
The Commonwealth’s reliance on Robertson is also misplaced. In Robertson, the
defendant exposed his erect penis to a fourteen-year-old boy while staring at him in a communal
shower. No. 2564-08-2, slip op. at 5. When the defendant approached the child, the child
fondled the defendant’s penis. Id. At trial, the defendant testified that the child also rubbed his
own penis against the defendant. Id. On appeal, he argued that the evidence failed to prove that
he had “proposed” to feel or fondle the victim under Code § 18.2-370 because “no words were
exchanged.” Id. at 3. This Court held that the evidence proved that he committed indecent
exposure to a minor under Code § 18.2-370(A)(1)8—which does not require proof of a
proposal—by “exposing his genitals to another with lascivious intent.” Id. at 3-4. Thus,
Robertson is inapposite because it addressed a separate theory of prosecution, indecent exposure
to a minor under Code § 18.2-370(A)(1), that does not necessarily require proof of a proposal.
Moreover, whereas it was relevant in Robertson that the victim touched the defendant’s genitals,
here the Commonwealth was charged with proving that Mayberry proposed that he touch K.M.’s
genitals. To quote from Robertson: “Appellant reasons that because no words were exchanged,
8
Code § 18.2-370(A)(1) requires proof that the accused, with lascivious intent,
knowingly and intentionally “[e]xpose[d] his or her sexual or genital parts to any child to whom
such person is not legally married or propose[d] that any such child expose his or her sexual or
genital parts to such person.” (Emphasis added).
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appellant did not ‘propose’ anything. However, appellant ignores subsection (A)(1) of Code
§ 18.2-370 which proscribes a person from exposing his genitals to another with lascivious
intent.” Id. There is no language in Robertson which addresses a “proposal” except that quoted
above. Proposal was not part of that Court’s ratio decidendi. But Robertson does distinguish a
proposal from other sexual related offenses.
To summarize, a plain reading of Code § 18.2-370(A)(3) demonstrates that the word
“propose” does not include touching a child’s genitals. To conclude otherwise would render the
word “propose” meaningless and Code § 18.2-67.3 redundant. Here, the evidence proved only
that Mayberry touched K.M.’s genitals, which is insufficient to prove that he “propos[ed]” to do
so. Accordingly, we reverse Mayberry’s conviction for indecent liberties in case number
CR19000304-00 and dismiss the indictment.
C. Indecent Liberties Conviction (Case Number CR19000252-00)
Finally, Mayberry contends that the evidence failed to prove that he violated Code
§ 18.2-370(A)(5) by inviting K.M. into the car with “lascivious intent” to expose himself or
“inappropriately touch[ ]” her. Mayberry reasons that “the evidence equally supports the theory”
that he invited K.M. into the car for the “wholly innocent reason” of cleaning the vehicle “but
then subsequently decided to expose himself or inappropriately touch her.”
“‘Lascivious’ as used in Code § 18.2-370 ‘describes a state of mind that is eager for
sexual indulgence, desirous of inciting to lust or of inciting sexual desire and appetite.’” Simon
v. Commonwealth, 58 Va. App. 194, 206 (2011) (quoting Campbell v. Commonwealth, 227 Va.
196, 199 (1984)) (some internal quotations omitted). “Intent, like any element of a crime, may,
and usually must, be proved by circumstantial evidence such as a person’s conduct and
statements.” Id. (quoting Long v. Commonwealth, 8 Va. App. 194, 198 (1989)). “The
statements and conduct of an accused after the events that constitute the charged crime may also
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be relevant circumstantial evidence of intent.” Id. (quoting Canipe v. Commonwealth, 25
Va. App. 629, 645 (1997)); see also McKeon v. Commonwealth, 211 Va. 24, 27 (1970)
(observing that whether the defendant “made any gestures toward himself or the child,” any
“improper remarks,” “asked [the victim] to do anything wrong,” or was “sexually aroused” are
factors probative of lascivious intent).
“Circumstantial evidence is as competent and is entitled to as much weight as direct
evidence, provided it is sufficiently convincing.” Pijor v. Commonwealth, 294 Va. 502, 512
(2017) (quoting Dowden v. Commonwealth, 260 Va. 459, 468 (2000)). “While no single piece of
evidence may be sufficient, the combined force of many concurrent and related circumstances
. . . may lead a reasonable mind irresistibly to a conclusion.” Id. at 512-13 (quoting Muhammad
v. Commonwealth, 269 Va. 451, 479 (2005)). Moreover, a guilty verdict demonstrates that “the
factfinder ‘has found by a process of elimination that the evidence does not contain a reasonable
theory of innocence.’” James v. Commonwealth, 53 Va. App. 671, 681 (2009) (quoting Haskins
v. Commonwealth, 44 Va. App. 1, 9 (2004)). That conclusion “is itself a ‘question of fact,’
subject to deferential appellate review.” Id.Although Mayberry told K.M. that she would “be cleaning out” the car with him while
Angel slept, K.M. testified that the car was not “messy” and Mayberry was not cleaning it when
she returned. He was urinating behind the truck and invited K.M. to touch his exposed penis
before they entered the car. After entering the car, Mayberry did not do anything to clean it.
Instead, he immediately masturbated in front of K.M. while watching erotic videos on his phone;
he also showed her “inappropriate” DVDs, which he said they would have to watch together
when her mother was not home. Collectively, that evidence supports the jury’s reasonable
conclusion that Mayberry was “eager for sexual indulgence” when he directed K.M. into the car.
Simon, 58 Va. App. at 206 (quoting McKeon, 211 Va. at 27); cf. Breeding v. Commonwealth, 213
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Va. 344, 344-45 (1972) (finding insufficient evidence of lascivious intent where defendant asked
two girls for driving directions as he sat in a vehicle with his penis exposed but “made no
suggestive remarks or gestures”); see also Simon, 58 Va. App. at 209-10 (finding sufficient
evidence of lascivious intent where defendant parked and exposed himself to a child through a
pair of modified shorts, which he hid in his vehicle containing pornographic videos).
In addition, the jury could infer Mayberry’s consciousness of guilt from his affirmative
acts of falsehood and concealment. See Palmer v. Commonwealth, 14 Va. App. 346, 348‑49
(1992) (“[I]t is today universally conceded that the fact of an accused’s flight, escape from
custody, resistance to arrest, concealment, assumption of a false name, and related conduct are
admissible as evidence of consciousness of guilt, and thus of guilt itself.”). Immediately after the
assault, Mayberry “clean[ed] himself,” then hid and later laundered the item he had used to do
so. He also admonished K.M. not to “tell anybody” what he had done and stated his intention to
delete his cell phone’s “history” to prevent her mother from discovering it. Despite Mayberry’s
claims that he “never touched” K.M., the jury was entitled to “discount” his alternative,
“self-serving explanation” to police as an effort at “lying to conceal his guilt.” Shackleford v.
Commonwealth, 262 Va. 196, 209 (2001).
Finally, Mayberry’s confessions provided the jury with compelling evidence of his guilt.
“An admission deliberately made, precisely identified and clearly proved affords evidence of a
most satisfactory nature and may furnish the strongest and most convincing evidence of truth.”
Prince v. Commonwealth, 228 Va. 610, 613 (1985). After initially denying any wrongdoing,
Mayberry confessed to Investigator Tanner that he had let K.M. touch his penis and asked
whether she had wanted to do so. Mayberry also admitted that he had “made a bad decision” and
wrote two letters to K.M. apologizing for the incident.
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In sum, Mayberry’s statements and conduct, along with other circumstantial evidence and
K.M.’s testimony, proved that he directed K.M. into the car with lascivious intent to expose his
genitals and sexually abuse her. The jury was not plainly wrong accepting K.M.’s testimony as
credible and rejecting Mayberry’s hypothesis of innocence. Accordingly, the evidence was
sufficient to support the convictions.
CONCLUSION
For the foregoing reasons, the trial court’s judgment is affirmed in part, and reversed in
part.
Affirmed in part, and reversed in part.
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