Jesse Wilson v. Commonwealth of Virginia ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Willis and Elder
Argued at Richmond, Virginia
JESSE WILSON
MEMORANDUM OPINION * BY
v. Record No. 2636-96-2 JUDGE JERE M. H. WILLIS, JR.
NOVEMBER 4, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY
William L. Wellons, Judge
Joseph M. Teefey, Jr., Assistant Public
Defender (Office of the Public Defender, on
brief), for appellant.
Leah A. Darron, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.
On appeal of his conviction for sexual battery in violation
of Code § 18.2-67.4, Jesse Wilson contends that the evidence was
insufficient to prove that he committed sexual abuse against the
will of the complaining witness through the use of force. We
agree and reverse the judgment of the trial court.
On appeal, we review the evidence in the
light most favorable to the Commonwealth,
granting to it all reasonable inferences
fairly deducible therefrom. The judgment of
a trial court sitting without a jury is
entitled to the same weight as a jury verdict
and will not be set aside unless it appears
from the evidence that the judgment is
plainly wrong or without evidence to support
it.
Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
(1987).
G.W., the complaining witness, testified that during a
scheduled work break, she went to the employee cafeteria to
purchase a soda. Upon entering the room, she went directly to
the soda machine. She did not speak to Wilson. While standing
in front of the soda machine, she felt someone grab and squeeze
her buttocks. She turned and saw Wilson standing behind her.
She told him angrily, "Don't ever do that again." He responded,
"It looked so tempting, I just had to do it." G.W. stated that
Wilson grabbed her with such force that she had to step forward
to maintain her balance. At trial, she demonstrated how he
grabbed her buttocks with an open hand and squeezed. Wilson
admitted being in the cafeteria with G.W., but denied touching
her.
Code § 18.2-67.4 provides, in part, that: "An accused shall
be guilty of sexual battery if he or she sexually abuses the
complaining witness against the will of the complaining witness,
by force . . . . " "Sexual abuse" is defined, in part, as an act
committed when "[t]he accused intentionally touches the
complaining witness' intimate parts or material directly covering
such intimate parts." Code § 18.2-67.10(6)(a). "Intimate parts"
includes the "buttocks." Code § 18.2-67.10(2).
The Commonwealth argues that Wilson is barred from raising
the issue of force for the first time on appeal. 1 Except for
1
While the trial transcript indicated that Wilson raised the
issue of force in his motion to strike the evidence, the
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"good cause shown" or to "attain the ends of justice," Rule 5A:18
prohibits the consideration on appeal of questions not presented
first to the trial court. In deciding whether to apply the "ends
of justice" exception, we have noted that:
"[T]he 'ends of justice' provision may be
used when the record affirmatively shows that
a miscarriage of justice has occurred, not
when it merely shows that a miscarriage might
have occurred." Obviously, the applicability
of this exception cannot be determined on the
mere assertion of the general rule, but
necessarily requires our review of the
record.
Johnson v. Commonwealth, 5 Va. App. 529, 532, 365 S.E.2d 237, 239
(1988) (emphasis in original) (quoting Mounce v. Commonwealth, 4
Va. App. 433, 436, 357 S.E.2d 742, 744 (1987)). For the reasons
that follow, we invoke the "ends of justice" exception and
consider the merits of Wilson's appeal. See Johnson, 5 Va. App.
at 532-35, 365 S.E.2d at 239-40 (evidence showed that "force," an
element of the offense of aggravated sexual battery, was not
present).
Wilson touched G.W. in an intimate area against her will.
transcript was never properly made a part of the record on
appeal. See Rules 5A:7(a)(7), 5A:8. In the written statement of
facts, Wilson's motion to the trial court stated that:
[T]he Commonwealth failed to prove that the
Defendant sexually abused the complaining
witness pursuant to Va. Code § 18.2-67.4.
The Defendant further argued that . . . the
Commonwealth bears the burden of proof that
the defendant performed the act with the
intent to sexually molest, arouse or gratify
any person.
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To constitute sexual battery, the force employed by Wilson to
overcome G.W.'s will requires "some force other than merely that
force required to accomplish the unlawful touching . . . ." Id.
at 534, 365 S.E.2d at 240. G.W. had her back to Wilson and was
unaware that he was behind her. Wilson employed no force beyond
that necessary to squeeze G.W.'s buttocks. While the unlawful
touching was patently nonconsensual, it was accomplished by
surprise, not by force. See id. at 535, 365 S.E.2d at 240
(defendant got into bed with complainant and touched his
genitalia). Convicting Wilson for a sexual offense that the
evidence proves he did not commit constituted a miscarriage of
justice. Despite Wilson's harassing and reprehensible conduct,
the evidence in this case is insufficient to sustain a conviction
under Code § 18.2-67.4.
Accordingly, we reverse the conviction and remand the case
for further proceedings, if the Commonwealth be so advised.
Reversed and remanded.
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