PRESENT: All the Justices
COMMONWEALTH OF VIRGINIA
v. Record No. 012220 OPINION BY JUSTICE ELIZABETH B. LACY
June 7, 2002
WILLIAM PATRICK BOWER
FROM THE COURT OF APPEALS OF VIRGINIA
The Court of Appeals reversed William Patrick Bower's
conviction under Code § 18.2-67.2 of animate object sexual
penetration of his thirteen-year-old daughter, holding that
there was insufficient evidence that Bower perpetrated the crime
through intimidation. We will reverse the judgment of the Court
of Appeals and reinstate his conviction because we conclude that
the testimonial evidence along with the familial relationship
between the defendant and victim, their relative ages and sizes,
and the improper touching that preceded the penetration
constitute sufficient proof that the conduct of the defendant
intimidated the victim in such a way that her will was overcome.
I. FACTS
"Where the sufficiency of the evidence is challenged after
conviction, it is our duty to consider it in the light most
favorable to the Commonwealth and give it all reasonable
inferences fairly deducible therefrom." Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
In April 1995 around 8:00 a.m., Bower entered the bedroom
of his thirteen-year old daughter, Buffy Brooks Bower. She was
lying on her stomach, facing away from the door, and appeared to
be asleep. Without saying anything, he lay down next to her.
He put his hand underneath her pajamas and fondled her breasts
for a period of five minutes. He then placed his hand inside
her panties; first resting his hand on her bare bottom and then
putting his finger into her vagina for a twenty-minute period.
During this episode, Buffy kept facing away and pretending to be
asleep until, after a total of about thirty minutes, Bower
finally got up and left the room. Buffy went back to sleep.
Buffy testified that after the incident she was "too scared
to even [tell her] own mother" what had occurred. She also
testified that she had had a good relationship with her father
prior to the assault but from that time forward refused to be
alone with him.
The Bowers divorced in 1997 after Buffy's mother learned
about the assault. Bower remarried and fathered a second
daughter. Ultimately, it was concern for her half-sister that
induced Buffy to report the incident to the police in 1999.
At trial, Bower waived his right to a jury and was
convicted by the trial court of animate object sexual
penetration under Code § 18.2-67.2 and taking indecent liberties
with a child by a person in custodial or supervisory
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relationship under Code § 18.2-370.1. The trial court sentenced
Bower to ten-years' imprisonment for the animate object sexual
penetration conviction, with five years suspended, and to a
five-year sentence for the indecent liberties conviction,
suspended in its entirety.
The Court of Appeals granted Bower's appeal of his animate
object sexual penetration conviction and reversed that
conviction. The court, referring to this Court's discussion of
"intimidation" in Sutton v. Commonwealth, 228 Va. 654, 324
S.E.2d 665 (1985), concluded that "intimidation in the context
of the criminal sexual assault statutes, including Code § 18.2-
67.2, means putting the victim in fear of bodily harm." Bower
v. Commonwealth, 36 Va. App. 382, 389, 551 S.E.2d 1, 4 (2001).
The court held that, in this case, nothing in Bower's conduct
"would place his daughter in fear of bodily harm" and that the
evidence would not even support a finding under a "lower
standard" that the victim's will was overborne by psychological
domination and control. Id. at 389-90, 551 S.E.2d at 4.
Rejecting the proposition that the parent-child relationship and
differential in age and size could constitute "cognizable
intimidation of the daughter causing her to submit to Bower,"
the court concluded that Bower "probably accomplished" the
offending act by surprise. Id. at 390, 551 S.E.2d at 5. We
awarded the Commonwealth an appeal.
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In Sutton, we considered the meaning of "intimidation" in
the context of the rape statute, Code § 18.2-61. Since the term
"intimidation" is consistently used throughout the various
statutes dealing with crimes of sexual assault, the Sutton
discussion is relevant to our decision in this case. We
described intimidation as
putting a victim in fear of bodily harm by exercising
such domination and control of her as to overcome her
mind and overbear her will. Intimidation may be caused
by the imposition of psychological pressure on one who,
under the circumstances, is vulnerable and susceptible
to such pressure.
228 Va. at 663, 324 S.E.2d at 670.
The Court of Appeals' decision that the Commonwealth failed
to meet its burden of proving intimidation was based on two
factors: (1) the absence of evidence other than the parent-
child relationship to show emotional domination; and (2) the
absence of any conduct by the defendant that would put the
victim in fear of bodily harm such that the intimidation element
of the crime was met.
The Court of Appeals, while acknowledging that the parent-
child relationship can be a "highly relevant" factor when
considering intimidation, discounted such evidence as proof of
intimidation in this case because there was no other evidence
supporting the conclusion that the defendant exercised
"emotional domination" over his daughter. The lack of such
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emotional domination by Bower was reflected, according to the
Court of Appeals, in the daughter's testimony that she had a
"good relationship" with her father prior to the assault.
In discussing the psychological pressure that can cause
submission through fear in Sutton, we referred to an earlier
case, Bailey v. Commonwealth, 82 Va. 107 (1886), "where the
intercourse was induced through fear of a person whom the victim
was accustomed to obey, such as a person standing in loco
parentis." 228 Va. at 663, 324 S.E.2d at 670. In that case,
the defendant's conviction for the rape of his fourteen-year old
stepdaughter was affirmed. Bailey, 82 Va. at 114. As in
Bailey, the "good relationship" between Bower and his daughter
in this case could lead the child to submit to the overtures of
the parent because a "good relationship" between parent and
child can include the child's general obedience to the parent's
direction. Therefore, the parent-child relationship was
relevant to a determination of intimidation and supported the
finding that Bower exercised emotional dominance over his
daughter in this case.
The Court of Appeals' holding that the Commonwealth failed
to produce sufficient evidence supporting a finding of fear of
bodily harm apparently was based on two rationales; however,
neither rationale can support the Court of Appeals' result in
this case. The first rationale the court apparently applied was
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a requirement that the requisite fear be a fear of bodily harm
separate and apart from the harm experienced in the sexual
assault. However, nothing in Sutton or any other case we have
decided requires this conclusion.
Sexual assaults are assaults against the body of the
victim; they are violent acts which common knowledge tells us
inflict bodily hurt on the victim. It defies human experience
to conclude that fear of the possibility of bodily injury caused
by sexual assault is insufficient "fear of bodily harm" for
purposes of establishing sexual assault by intimidation.
Accordingly, the Court of Appeals erred to the extent that
it required proof that the victim feared some type of bodily
harm other than the harm inherent in the sexual assault.
A second rationale which the Court of Appeals appears to
have utilized in finding that there was no evidence of fear of
bodily harm was the use of an objective standard for measuring
the reasonableness of a victim's fear. Citing its prior cases,
the Court of Appeals stated that fear of bodily harm must come
from the actions of the defendant, not from the victim's
"temperamental timidity." Because nothing in Bower's conduct
"would place his daughter in fear of bodily harm," and the
victim made no reaction indicating that she was emotionally
dominated or fearful, the Court of Appeals concluded that the
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crime was not perpetrated through intimidation. Bower, 36 Va.
App. at 389-90, 551 S.E.2d at 4-5.
In Sutton, we specifically did not decide whether an
objective or subjective standard should be applied in these
cases. We have not done so in subsequent cases, and we need not
resolve that issue in this case. Matters such as the victim's
age, the relative size of the defendant and victim, the familial
relationship between the defendant and victim, and the
vulnerable position of the victim are not matters of the
"temperamental timidity" of the victim and are relevant matters
to be considered with other testimony when determining whether
the victim was put in fear of bodily harm.
Applying the above principles, we conclude that the record
is sufficient to support a finding that Bower committed animate
sexual penetration by intimidation. The victim testified that
she was "frightened" and "scared" and that the assault hurt.
She also testified that her father had never approached her in
this manner before, that she pretended to be asleep during the
assault, and that, after the assault, she avoided being alone
with her father. This testimony, along with evidence of the
parent-child relationship, the age of the victim and the
relative sizes of the parties, was sufficient to sustain a
finding that the act of sexual abuse occurred through
intimidation.
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Finally, the Court of Appeals concluded that the act of
sexual penetration was accomplished by surprise. This
conclusion is not supported by the record. This assault did not
occur in a matter of seconds or even a few minutes. The crime
charged was preceded by at least five minutes of fondling and
continued for almost thirty minutes. The continuation of the
defendant's conduct over that period of time is inconsistent
with surprise.
For the above reasons, we conclude that the Court of
Appeals erred in setting aside the conviction. Accordingly, we
will reverse the judgment of the Court of Appeals and reinstate
the conviction.
Reversed and final judgment.
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