John Phillip Stoudt v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Annunziata
Argued at Alexandria, Virginia
JOHN PHILLIP STOUDT
MEMORANDUM OPINION * BY
v. Record Nos. 2386-98-4 JUDGE ROSEMARIE ANNUNZIATA
and 2387-98-4 FEBRUARY 15, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF WINCHESTER
John E. Wetsel, Jr., Judge
David H. N. Bean for appellant.
Donald E. Jeffrey, III, Assistant Attorney
General (Mark L. Earley, Attorney General,
on brief), for appellee.
John Phillip Stoudt appeals his conviction of forcible
sodomy in violation of Code § 18.2-67.1. Stoudt contends that
the evidence failed to support a conviction of forcible sodomy,
that the trial court erred in denying his motion to strike the
Commonwealth's evidence, and that, upon a reversal of his
conviction, he should be granted a hearing to reinstate his
probation on prior offenses. Finding the evidence insufficient
as a matter of law to sustain a conviction of forcible sodomy,
we reverse the decision of the trial court, and remand for a
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
hearing on the reinstatement of Stoudt's probation for the prior
convictions.
BACKGROUND
On October 2, 1997, Stoudt was working in the basement of
the Goodwill consignment store in Winchester, Virginia, stocking
and sorting clothes. Working with him was the
seventeen-year-old complaining witness in this case, W.B. W.B.
and Stoudt had not worked together or met previously. No one
else was working with them in the basement.
As they worked, Stoudt made a series of sexually explicit
and suggestive remarks to W.B., and he informed the youth that
he was homosexual. Stoudt offered to perform oral sex on W.B.,
but W.B. declined. Stoudt was not dissuaded from his advances,
however, and persisted in seeking W.B.'s consent to a sexual
encounter. W.B. rebuffed Stoudt's advances, and informed Stoudt
that he was "straight" and had a girlfriend. W.B. later went to
the restroom, and Stoudt followed him into it. The restroom was
a small facility with a single toilet and sink. Stoudt unzipped
his pants and produced his penis, and attempted to get W.B. to
touch it. W.B. testified that he felt paralyzed with
apprehension, and was only able to stand motionless while Stoudt
exposed himself. Stoudt then refastened his pants, and began to
touch W.B. on the legs, buttocks, and groin. He reached inside
W.B.'s pants and exposed W.B.'s penis. Stoudt began to perform
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fellatio on W.B., and kept his hands at first on W.B.'s legs,
then on his buttocks. During the incident, Stoudt kneeled as he
performed fellatio on W.B., and W.B. stood with his back against
the wall of the restroom. W.B. testified that he was frightened
during this incident and that it was only when Stoudt grasped
his buttocks that he felt the paralysis of fear lift
sufficiently to push Stoudt away. W.B. left the restroom and
resumed working. The incident in the restroom lasted
approximately two to three minutes.
Stoudt followed W.B. back into the work area, where he
resumed fondling W.B., and kissed him on the neck. W.B. told
Stoudt he needed to go outside and "get some air." Upon exiting
the building, W.B. went to the upstairs level and reported to a
manager that he was unwilling to return to the basement. W.B.
was so emotionally distraught that he was unable to explain the
nature of his complaint. The police were ultimately summoned to
determine the nature of W.B.'s distress, and W.B. reported some
of the details of Stoudt's behavior. Officer T.A. Rice
interviewed W.B. and Stoudt and, upon concluding his interview
with Stoudt, placed him under arrest.
Stoudt was tried before a jury on April 7, 1998, on a
charge of forcible sodomy. He was found guilty and sentenced to
twenty years imprisonment. As a result, his probation on
previous criminal convictions was revoked, and he was ordered to
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serve the nine-year sentence on those charges concurrently with
his sentence for the sodomy conviction. This appeal followed.
SUFFICIENCY OF EVIDENCE TO PROVE FORCIBLE SODOMY
In addressing whether the evidence is sufficient to sustain
a conviction, the Court considers the evidence "in the light
most favorable to the Commonwealth, granting to it all
reasonable inferences fairly deducible" from it. Welch v.
Commonwealth, 15 Va. App. 518, 523, 425 S.E.2d 101, 105 (1992).
A jury's findings of fact will not be disturbed unless plainly
wrong or without evidence to support them. See Peterson v.
Commonwealth, 5 Va. App. 389, 401, 363 S.E.2d 440, 448 (1987).
Inferences to be drawn from proven facts are solely within the
province of the fact finder. See Stockton v. Commonwealth, 227
Va. 124, 145, 314 S.E.2d 371, 385, cert. denied, 469 U.S. 873(1984).
Code § 18.2-67.1 defines forcible sodomy as an act of
sodomy performed upon a victim against that person's will, by
means of force, threat, or intimidation, or through exploitation
of the victim's mental incapacity or physical helplessness. The
Commonwealth conceded at trial that no force or threat was
exerted in this case. The jury's verdict of guilt was based on
its finding that Stoudt intimidated W.B. 1
1
The jury was not instructed on mental incapacity or
physical helplessness as possible grounds for finding Stoudt
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In order to prove that a defendant intimidated a victim
into submitting to a sex act, the evidence must show 1) that the
defendant caused his victim to fear some bodily harm if he or
she failed to comply with the defendant, or 2) that, under the
circumstances, the defendant imposed such a degree of
psychological or emotional pressure on a vulnerable and
susceptible victim, as to cause that person to submit to the
defendant's advances. See Clark v. Commonwealth, 30 Va. App.
406, 410, 517 S.E.2d 260, 262 (1999) (citing Sutton v.
Commonwealth, 228 Va. 654, 663, 324 S.E.2d 665, 670 (1985)); see
also Woodard v. Commonwealth, 27 Va. App. 405, 410, 499 S.E.2d
557, 559 (1998); Clark v. Commonwealth, 12 Va. App. 1163,
1165-66, 408 S.E.2d 564, 566 (1991).
Under either prong of the test for intimidation, the
evidence in Stoudt's case failed to support his conviction.
Applying the first prong, we note W.B. testified only that
Stoudt had made a number of sexually suggestive statements to
him and that Stoudt followed him around the work area as W.B.
did his job. Although W.B. repeatedly rebuffed Stoudt's
advances, W.B. expressed no fear of Stoudt prior to the incident
in the restroom. Even then, W.B. stated that he felt fearful
guilty. Rather, the court instructed it on "force, threat, or
intimidation," and during the instructions the court eliminated
force as a possibility, informing the jury that their decision
must be based on intimidation or threat.
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only as the sexual contact was occurring, and he described his
fear as a feeling that he "wasn't really going to be able to
tell anybody about it." There is no evidence that the incident
was the result of fearing bodily injury if he refused to comply.
The record also fails to support a finding that Stoudt
applied psychological or emotional pressure to a victim who,
under the circumstances of the case, was particularly vulnerable
to psychological domination. W.B. testified that he was
sexually experienced and that he was confident in his sexual
orientation. He had not met Stoudt until the day the incident
occurred, and during the course of the incident he evidenced the
ability to refuse Stoudt's advances by pushing Stoudt away and
leaving the restroom and, subsequently, by leaving the basement
and reporting his distress to his supervisor. On this record we
cannot conclude that W.B.'s will was overborne by psychological
or emotional domination.
We accordingly find that the trial court's denial of
Stoudt's motion to strike the evidence was error, and we reverse
Stoudt's conviction for forcible sodomy and remand to the trial
court for further proceedings if the Commonwealth be so advised.
REHEARING FOR REINSTATEMENT OF PROBATIONARY STATUS
Having found as a matter of law that the evidence offered
against Stoudt failed to support his conviction for forcible
sodomy, we remand the case for a rehearing on the issue of
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Stoudt's probationary status. See Patterson v. Commonwealth, 12
Va. App. 1046, 1049-1050, 407 S.E.2d 43, 45 (1991).
Record No. 2386-98-4, reversed
and remanded.
Record No. 2387-98-4, reversed
and remanded.
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