Nicholson v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Beales, Powell and Alston
Argued at Richmond, Virginia

WOODROW WILSON NICHOLSON
OPINION BY
v. Record No. 0168-09-4 JUDGE ROSSIE D. ALSTON, JR.
JULY 13, 2010
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF WARREN COUNTY
Dennis L. Hupp, Judge

Joseph A. Sadighian, Senior Assistant Appellate Defender (Office of
the Appellate Defender, on brief), for appellant.

Joshua M. Didlake, Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.

Woodrow Wilson Nicholson (appellant) was convicted in a bench trial of aggravated

sexual battery, through the use of the victim’s mental incapacity, in violation of Code

§ 18.2-67.3. On appeal, appellant argues that the Commonwealth failed to prove he committed

aggravated sexual battery because the evidence was insufficient to prove that appellant forced

the victim to touch his intimate parts. Specifically, appellant argues that Code § 18.2-67.3

requires the use of actual force to establish sexual abuse when the complaining witness is

mentally incapacitated. We hold that Code § 18.2-67.3 does not require the use of actual force

under these circumstances. Therefore, we affirm the judgment of the trial court.

I. BACKGROUND

“On appeal, we review the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible therefrom.” Martin v. Commonwealth, 4

Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). Viewed through this evidentiary prism, the
evidence established that J.A., a forty-four-year-old man with Down’s Syndrome, touched

appellant’s penis on February 5, 2008. At that time, J.A. was a client at Blue Ridge

Opportunities (Blue Ridge), a facility that provides vocational and social training for mentally

disabled adults and students.

On February 5, 2008, J.A. left Blue Ridge at approximately 9:15 a.m. for his work

assignment at a nearby business. Candy Lamb (Lamb), the program director at Blue Ridge, went

outside shortly after J.A. departed and saw him talking to a man in the Blue Ridge parking lot.

This man was later identified as appellant. Lamb approached J.A. and told him that he needed to

go to work. J.A. assented and began walking away from Blue Ridge. Lamb asked appellant if

she could help him, and appellant responded that he was waiting for the pawnshop to open for

the day.

Lamb went back to her workplace, but continued to watch J.A. from the door of the

facility. She saw appellant pursue and ultimately catch up with J.A. The two men crossed the

street together and entered an alley. Concerned for J.A.’s safety, Lamb went back outside and

walked toward the alley. When she was standing approximately eighteen feet from appellant and

J.A., she shouted at J.A. to come over to her. At this time, J.A. was facing Lamb, and appellant

stood between them, with his back to Lamb and the street. J.A. walked over to Lamb, and

appellant turned towards her. Lamb could see that appellant’s pants were undone and that his

penis was exposed. Lamb and J.A. went back to Blue Ridge and called the police. Lamb did not

see J.A. touch appellant nor did she see appellant touch J.A. during this encounter.

After the police found appellant at a local business, appellant agreed to accompany them

to the police station. Corporal S. Mauck formally Mirandized appellant and interviewed him

regarding his earlier interaction with J.A. Corporal Mauck testified that a slight odor of alcohol

emanated from appellant’s person during the interview. Appellant claimed he had a “couple

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shots of bourbon and some wine” that morning. During the interview, Corporal Mauck told

appellant that he had been seen near Blue Ridge, which the corporal referred to as a “school for

handicapped people.” He also informed appellant that both J.A. and an employee at the school

told Corporal Mauck that appellant had exposed himself in the alley near Blue Ridge. Corporal

Mauck repeatedly told appellant that he knew that “a handicapped boy” had touched appellant’s

penis. Appellant repeatedly denied any involvement with the “handicapped boy.” After being

pressed on the issue, appellant stated numerous times that if any touching did occur, he “was

sorry.” Appellant said that his mind was “confused,” presumably from his consumption of

alcohol. After Corporal Mauck told appellant that only guilty individuals apologized for their

actions, appellant stated that J.A. “talked [him] into it,” by offering to “play with” appellant’s

penis in exchange for money to buy a soda. According to appellant, when appellant agreed to

J.A.’s proposition, J.A. unzipped appellant’s pants and touched appellant’s penis. Subsequently,

appellant demonstrated how J.A. touched appellant’s penis. Additionally, he claimed that he was

unaware that J.A. was mentally disabled, and asserted that he was not sure if J.A. was male or

female. Appellant’s statement was recorded and viewed by the trial court during appellant’s

bench trial for aggravated sexual battery.

In addition to Lamb’s testimony and appellant’s taped statement, the Commonwealth

presented the testimony of J.A.’s sister and legal guardian, Caroline Jo Johnson (Johnson), and

Kathy Wolfe-Heberle (Wolfe-Heberle), Blue Ridge’s president, during the trial. According to

Wolfe-Heberle, J.A. was “severely mentally retarded” and possessed the functional ability of a

child between the ages of five and ten years old.

Johnson testified that she became J.A.’s primary caretaker in November 2006, when J.A.

moved in with Johnson and her husband. As J.A.’s legal guardian, Johnson was responsible for

taking care of his needs, managing his finances, and providing reports to Social Services

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regarding his well-being. Johnson described her brother’s ability to take care of his personal

hygiene. While he could bathe himself, Johnson had to take care of many other tasks, such as

helping him into the shower, turning on the water, and providing him with towels and

washcloths. She washed his hair and trimmed his fingernails and toenails. J.A. was able to

perform simple chores like making his bed, and he was able to follow Johnson’s simple

directions. Johnson explained that if she asked J.A. to complete multiple tasks at once, he was

unable to remember all of them.

Johnson testified that J.A. enjoyed coloring with crayons in children’s coloring books and

watching the same television shows that he enjoyed as a child, such as I Love Lucy and The

Brady Bunch. Johnson stated that he had never shown any interest in more mature

programming. Additionally, Johnson testified that J.A. lacked initiative. Specifically, she stated

that J.A. would follow directions given to him by other adults, even if they were strangers, and

that he was unable to negotiate for a reward in exchange for following directions.

Finally, Johnson testified that J.A. had not expressed an interest in sex since he began

living with her in 2006. She stated that her brother’s genitals had never developed and that he

had no underarm or facial hair. Johnson had never seen J.A. sexually aroused, and she had never

seen evidence of nocturnal emissions or other discharges while cleaning his laundry. She stated

that J.A. had a “girlfriend,” whom he saw once a year. J.A. spoke to his girlfriend on the

telephone, and either Johnson or J.A.’s girlfriend’s mother chaperoned their dates. Johnson said

the couple held hands and J.A. sometimes kissed his girlfriend on the cheek or hugged her while

saying goodbye.

Wolfe-Heberle, a Qualified Mental Health Retardation Professional certified through

Virginia’s Department of Mental Health Retardation and Substance Abuse Services, qualified as

an expert in “the cognitive abilities of individuals suffering from mental retardation,” and the

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trial court allowed her to testify regarding J.A.’s functional capacity and his understanding of

sexual acts. For the two-and-one-half years preceeding J.A.’s interaction with appellant,

Wolfe-Heberle oversaw J.A.’s treatment plan at Blue Ridge. One aspect of Blue Ridge’s

training plan involved functional assessments of the facility’s clients. Wolfe-Heberle classified

J.A.’s level of mental retardation as “in the upper end of severe” mental retardation, and she

stated that he was not able to live independently. She stated that J.A. lacked the ability to

perform complex reasoning or understand complicated logic. Notably, Wolfe-Heberle stated that

J.A. was not capable of negotiating. Specifically, she explained:

[J.A.] does not have the ability to negotiate. He doesn’t understand
that process at all. . . . I can tell [J.A.], if you do this[,] I will give
you a cookie. He understands what a reward is. But, rewards are
different than the negotiation process.

[J.A.] does not have the ability to come to me and say, “Kathy, if
you do this[,] then I will give you this.” It is not reversed.

Wolfe-Heberle stated that J.A. did not understand the concept of money, except for the

fact that he needed “two quarters to get a soda out of the [vending] machine.” According to

Wolfe-Heberle, J.A. purchased cans of sodas from a vending machine near the alley where Lamb

had seen J.A. and appellant.

Finally, Wolfe-Heberle stated that J.A. did not have an understanding of sex or the nature

and consequence of sex acts of any type. J.A. never expressed an interest in sex and never

showed any interest in touching of a sexual nature. Wolfe-Heberle testified that J.A. had “no

concept or no clue even to use the word ‘penis.’ He does not understand what the word is. So,

he is not aware that [the penis has a sexual function].” Wolfe-Heberle stated that for J.A., “[t]he

penis is used to pee. The penis is not used for sex.” Wolfe-Heberle acknowledged that J.A.

participated in Blue Ridge’s sexual education program, by attending group discussions about

condoms and sexually transmitted diseases, but “he [did not] have any understanding of what it

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mean[t].” During one such session, Wolfe-Heberle showed the group how to put a condom on a

cucumber. J.A. “was kind of oblivious to the entire conversation.”

The trial court determined that J.A. was incompetent to testify. In addition to the expert

testimony and the testimony of Johnson and Lamb, the Commonwealth presented color

photographs of J.A. The Commonwealth stated that the purpose of admitting the photographs

into evidence was to show that J.A. exhibited physical characteristics associated with Down’s

Syndrome. There was no direct evidence that appellant knew that J.A. was mentally

incapacitated.

Appellant moved to strike the evidence at the close of the Commonwealth’s case-in-chief

and at the close of all of the evidence. Appellant argued that Code §§ 18.2-67.3 and 18.2-67.10

required the Commonwealth to prove that appellant used actual force to make J.A. touch

appellant’s intimate parts. Preliminarily, the trial court rejected appellant’s assertion that J.A.

offered to touch appellant’s intimate parts in exchange for money and found that J.A. touched

appellant’s intimate parts “at the invitation” of appellant. Then the trial court cited Martin v.

Commonwealth, 272 Va. 31, 630 S.E.2d 291 (2006), for the proposition that the use of

constructive force to accomplish a sexual touching would support a finding of guilt under Code

§ 18.2-67.3(A)(2). The trial court held that J.A.’s mental incapacitation precluded him from

legally consenting to the touching of appellant’s intimate parts, and therefore appellant

constructively forced J.A. to touch appellant’s penis. The trial court convicted appellant of

aggravated sexual battery, and this appeal followed.

II. ANALYSIS

The trial court convicted appellant of aggravated sexual battery under Code

§ 18.2-67.3(A)(2), which states in pertinent part: “An accused shall be guilty of aggravated

sexual battery if he or she sexually abuses the complaining witness, and . . . [t]he act is

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accomplished through the use of the complaining witness’s mental incapacity or physical

helplessness.” Code § 18.2-67.10(3) defines “mental incapacity” as the “condition of the

complaining witness existing at the time of an offense . . . which prevents the complaining

witness from understanding the nature or consequences of the sexual act involved in such offense

and about which the accused knew or should have known.” Appellant does not contest on appeal

that J.A.’s mental retardation prevented him from “understanding the nature or consequences of

the sexual act involved in such offense”; however, he denies on appeal that he knew or should

have known that J.A. was mentally incapacitated.

Code § 18.2-67.10(6)(b) defines “sexual abuse” as “an act committed with the intent to

sexually molest, arouse, or gratify any person, where . . . [t]he accused forces the complaining

witness to touch the accused’s, the witness’s own, or another person’s intimate parts or material

directly covering such intimate parts.” (Emphasis added).

Appellant argues on appeal that the evidence at trial showed J.A. offered to touch

appellant’s intimate parts, and appellant merely acquiesced to this offer. Appellant argues that to

be guilty of aggravated sexual battery under Code § 18.2-67.3(A), appellant had to accomplish

an act of sexual abuse against J.A. through the use of J.A.’s mental incapacity. Appellant claims

that under the statute, sexual abuse only occurred if appellant “forced” J.A. to touch appellant’s

intimate parts. Appellant asserts that the fact that J.A. was mentally incapacitated does not lead

to the conclusion that appellant used constructive force to accomplish the inappropriate touching.

In furtherance of this argument, appellant maintains that if the General Assembly intended the

complaining witness’ mental incapacity to be considered in the determination that sexual abuse

occurred, the General Assembly would have discussed the complaining witness’ mental

incapacity in the definition of sexual abuse found in Code § 18.2-67.10(6). According to

appellant, because mental incapacity is solely mentioned in the aggravated sexual battery statute,

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it cannot be considered in determining if sexual abuse, as defined in Code § 18.2-67.10(6),

occurred. He contends that this Court cannot uphold appellant’s conviction, because appellant

merely “allowed J.A., who offered to play with [appellant’s] privates, to touch [appellant’s]

privates,” and this acquiescence does not constitute a use of “force” under Code

§ 18.2-67.10(6)(b). We disagree.

The determination of the definition of “force” as used by the General Assembly in Code

§ 18.2-67.10(6)(b) is a question of statutory interpretation, and therefore, this Court reviews the

question de novo. See Johns v. Commonwealth, 53 Va. App. 742, 746, 675 S.E.2d 211, 213

(2009) (citing Giles v. Commonwealth, 277 Va. 369, 373, 672 S.E.2d 879, 882 (2009)). While

reviewing the trial court’s legal conclusions de novo, we “giv[e] deference to the trial court’s

findings of fact unless the findings are ‘plainly wrong or without evidence to support them.’”

Carter v. Commonwealth, 42 Va. App. 681, 686, 594 S.E.2d 284, 287 (2004) (quoting Timbers

v. Commonwealth, 28 Va. App. 187, 193, 503 S.E.2d 233, 235-36 (1998)). “[T]he ‘trial judge’s

major role is the determination of fact, and with experience in fulfilling that role comes

expertise.’” Sanford v. Commonwealth, 54 Va. App. 357, 359, 678 S.E.2d 842, 843 (2009)

(quoting Haskins v. Commonwealth, 44 Va. App. 1, 11, 602 S.E.2d 402, 407 (2004)). Thus, “the

credibility of the witnesses and the weight accorded the evidence are matters solely for the fact

finder who has the opportunity to see and hear that evidence as it is presented.” Sandoval v.

Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995) (citing Schneider v.

Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735, 736-37 (1985); Carter v. Commonwealth,

223 Va. 528, 532, 290 S.E.2d 865, 867 (1982)).

In deciding the motion to strike at the close of the Commonwealth’s evidence, the trial

court found that J.A. was mentally incapacitated, that J.A. touched appellant’s penis, and that the

touching was at the invitation of appellant. We can infer from the trial court’s ruling that the

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trial court made these same factual findings when convicting appellant of aggravated sexual

battery. On appeal, appellant urges us to disregard the trial court’s factual finding that appellant

invited J.A. to participate in the sexual touching. Appellant states that “the only evidence

concerning how J.A. came to touch [appellant] was [appellant’s] statement that J.A. offered to

play with his penis for some money.” Nevertheless, it is clear from the trial court’s ruling that

the trial court rejected appellant’s statement to the police and instead concluded that appellant

invited J.A. to touch him.

It is true that a trial court “‘may not arbitrarily disregard uncontradicted evidence of

unimpeached witnesses which is not inherently incredible and not inconsistent with the facts in

the record,’” Williams v. Commonwealth, 14 Va. App. 666, 669-70, 418 S.E.2d 346, 348 (1992)

(quoting Hankerson v. Moody, 229 Va. 270, 274, 329 S.E.2d 791, 794 (1985)); however, we find

that there was sufficient evidence to support the trial court’s rejection of appellant’s statement

that J.A. offered to touch appellant’s intimate parts. In weighing appellant’s credibility, the trial

court was entitled to consider the fact that appellant gave multiple accounts of his interaction

with J.A. on the date of the offense. See Lea v. Commonwealth, 16 Va. App. 300, 304, 429

S.E.2d 477, 479 (1993) (acknowledging that “[d]etermining the credibility of witnesses who give

conflicting accounts is within the exclusive province of the [fact finder]”). Appellant first denied

interacting with “a handicapped boy.” Later appellant said that his mind had been “confused,”

so he did not remember the day well, but if any inappropriate touching did happen, it was an

accident for which he was sorry. Finally, appellant said that he didn’t remember if he

encountered a boy or a girl that day, but the person “talked [him] into” the arrangement by

offering to touch appellant’s penis in exchange for money. Appellant then demonstrated how

J.A. touched appellant’s penis.

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 In determining appellant’s credibility, the trial court also had discretion to consider the

testimony of J.A.’s sister and primary caretaker, Johnson, and Wolfe-Heberle. Both women

stated that J.A. did not possess the ability to negotiate, and Johnson stated that J.A. was very

trusting and would obey the directions of any adult. Thus, there was evidence that contradicted

appellant’s assertion that J.A. initiated the touching. Because “[i]n its role of judging witness

credibility, the fact finder is entitled to disbelieve the self-serving testimony of the accused and

to conclude that the accused is lying to conceal his guilt,” Marable v. Commonwealth, 27

Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998) (citing Speight v. Commonwealth, 4 Va. App.

83, 88, 354 S.E.2d 95, 98 (1987) (en banc)), we cannot conclude that the trial court erred in

finding appellant’s version of his encounter with J.A. was fabricated and appellant was lying to

conceal his guilt.

Similarly, we can infer that in finding appellant guilty of aggravated sexual battery, the

trial court found appellant’s claim that he did not know J.A. was mentally incapacitated to be

incredible. We cannot say that this determination was plainly wrong, because as previously

noted, the “fact finder is entitled to disbelieve the self-serving testimony of the accused and to

conclude the accused is lying to conceal his guilt.” Id. (citing Speight, 4 Va. App. at 88, 354

S.E.2d at 98). Additionally, throughout the interrogation, Corporal Mauck repeatedly referred to

J.A. as “the handicapped boy,” a characterization that appellant did not dispute until Corporal

Mauck asked him directly if he knew that J.A. was “handicapped.”

Having resolved the credibility claims appellant presents on appeal, we consider

appellant’s arguments regarding the application of Code § 18.2-67.10(6) to his conduct. Again,

when considering the question of law presented by this case, which we review de novo, we are

bound by the trial court’s factual findings, if they are not “‘plainly wrong.’” Carter, 42 Va. App.

at 686, 594 S.E.2d at 287 (quoting Timbers, 28 Va. App. at 193, 503 S.E.2d at 235-36).

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Appellant argues that appellant’s conduct, taken in the light most favorable to the

Commonwealth, did not constitute “sexual abuse,” as defined by Code § 18.2-67.10(6), which

provides:

“Sexual abuse” means an act committed with the intent to
sexually molest, arouse, or gratify any person, where:

a. The accused intentionally touches the complaining
witness’s intimate parts or material directly covering such intimate
parts;

b. The accused forces the complaining witness to touch the
accused’s, the witness’s own, or another person’s intimate parts or
material directly covering such intimate parts;

c. If the complaining witness is under the age of 13, the
accused causes or assists the complaining witness to touch the
accused’s, the witness’s own, or another person’s intimate parts or
material directly covering such intimate parts; or

d. The accused forces another person to touch the
complaining witness’s intimate parts or material directly covering
such intimate parts.

Appellant contends that in order to be guilty of a violation of Code § 18.2-67.3(A), the

specific offensive conduct must constitute sexual abuse, which is defined without mention of the

mental capacity of the victim. According to appellant, the Commonwealth was required by

subsection (b) of Code § 18.2-67.10(6) to prove appellant “force[d] the complaining witness to

touch the accused’s . . . intimate parts . . . ,” and this force could not be proved through a mere

showing that the victim was mentally incapacitated. Appellant argues that the trial court ignored

both the basic principles of statutory construction and the Supreme Court’s discussion in Martin

regarding the 2004 amendments to Code § 18.2-67.3 in making its decision.

It is well settled that “‘[t]he province of construction is wholly within the domain of

ambiguity, and that which is plain needs no interpretation.’” Barnett v. D.L. Bromwell, Inc., 6

Va. App. 30, 34, 366 S.E.2d 271, 273 (1988) (quoting Winston v. City of Richmond, 196 Va.

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403, 408, 83 S.E.2d 728, 731 (1954)). “[W]hen the General Assembly has used words that have

a plain meaning, courts cannot give those words a construction that amounts to holding that the

General Assembly meant something other than that which it actually expressed.” Lee County v.

Town of St. Charles, 264 Va. 344, 348, 568 S.E.2d 680, 682 (2002) (citing Vaughn, Inc. v. Beck,

262 Va. 673, 677, 554 S.E.2d 88, 90 (2001); Halifax Corp. v. First Union Nat’l Bank, 262 Va.

91, 100, 546 S.E.2d 696, 702 (2001)). When bound by the plain meaning of the language used,

appellate courts are not permitted “to add or subtract from the words used in the statute.” Posey

v. Commonwealth, 123 Va. 551, 553, 96 S.E. 771, 771 (1918). Instead, appellate courts “must

. . . assume . . . the legislature chose, with care, the words it used when it enacted the relevant

statute,” Barr v. Town & Country Properties, Inc., 240 Va. 292, 295, 396 S.E.2d 672, 674

(1990), and appellate courts have a duty to give “reasonable effect to every word,” Jones v.

Conwell, 227 Va. 176, 181, 314 S.E.2d 61, 64 (1984); accord Moyer v. Commonwealth, 33

Va. App. 8, 35, 531 S.E.2d 580, 593 (2000) (en banc). Further, “[w]hen a penal statute is

unclear, the statute must be strictly construed against the Commonwealth and in favor of an

accused’s liberty, and the accused is entitled to the benefit of any reasonable doubt concerning

the statute’s construction.” Waldrop v. Commonwealth, 255 Va. 210, 214, 495 S.E.2d 822, 825

(1998). Before the accused can be punished, however offensive his conduct, “‘his case must be

plainly and unmistakably within the statute.’” Harward v. Commonwealth, 229 Va. 363, 365,

330 S.E.2d 89, 90 (1985) (quoting United States v. Lacher, 134 U.S. 624, 628 (1890)).

On appeal, appellant suggests that the trial court misapplied Martin, 272 Va. 31, 630

S.E.2d 291, when it held that under Martin, Code § 18.2-67.10(6)(b) did not require actual force;

it only required that the accused employ constructive force. Appellant argues that the trial court

erred when it found that under Martin, a showing that J.A. was mentally incapacitated was

evidence that appellant used constructive force.

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 In Martin, the defendant, “then fourteen years old, exposed his penis to the eight-year-old

victim, asked the victim to masturbate him and, following [the defendant’s] directions, the victim

complied.” Id. at 33, 630 S.E.2d at 291. The defendant was convicted of aggravated sexual

battery under subsection (A)(1) of Code § 18.2-67.3 based on his sexual abuse of the victim as

defined by the 2003 version of Code § 18.2-67.10(6)(b). Id. at 34, 630 S.E.2d at 292. In 2003,

Code § 18.2-67.10(6)(b) stated that sexual abuse occurred when “[t]he accused forces the

complaining witness to touch the accused’s, the witness’s own, or another person’s intimate parts

or material directly covering such intimate parts.” The defendant argued in Martin that the Code

required “an overt act of actual force and that, in the absence of such an act, [the defendant’s]

conviction [could not] be sustained.” 272 Va. at 34, 630 S.E.2d at 292. The Supreme Court

disagreed with the defendant, finding that Virginia’s jurisprudence had long recognized “that

‘force’ may include both constructive and actual force and in the absence of any legislative

definition of ‘force,’ [the Supreme Court could not] conclude that the General Assembly

intended to limit the meaning of the word ‘force’ to actual force for purposes of Code

§ 18.2-67.10(6)(b).” Id. at 35, 630 S.E.2d at 292 (citing Waterman v. Halverson, 261 Va. 203,

207, 540 S.E.2d 867, 869 (2001); Dodson v. Potomac Mack Sales & Service, Inc., 241 Va. 89,

94, 400 S.E.2d 178, 180 (1991)).

The Supreme Court stated “that in the context of sexual crimes, an act undertaken against

a victim’s will and without the victim’s consent is an act undertaken with force.” Id. (citing

Jones v. Commonwealth, 219 Va. 983, 986, 252 S.E.2d 370, 372 (1979)). The Supreme Court

turned to rape prosecutions for guidance regarding sexual abuse prosecutions:

[I]n the context of a rape prosecution, we held that constructive
force exists if the victim could not legally consent to the act.
Stump [v. Commonwealth], 137 Va. [804,] 807, 119 S.E. [72,] 73
[(1923)]. Proof of the absence of legal consent provides “all the
force which the law demands as an element of the crime.” Bailey
v. Commonwealth, 82 Va. (97 Hans.) 107, 111 (1886).
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Id. The Supreme Court concluded “‘force’ includes actual and constructive force and that
constructive force includes engaging in proscribed conduct with a victim who is under the legal
age of consent.” Id.

The Supreme Court also addressed the defendant’s argument that “[w]here a statute

proscribes certain behavior based on both the age of the victim and the fact that the act was

accomplished using force, it would be incongruous to conclude that proving the victim was

beneath the common-law age of consent satisfied the express requirement of proving force.” Id.

at 35, 630 S.E.2d at 293 (citing Martin v. Commonwealth, No. 1966-04-4, 2005 Va. App. LEXIS

337, at *19 (Sept. 6, 2005) (Elder, J., dissenting)). The Supreme Court found that

the use of a common set of facts for proof of differing elements of
a crime is [not] incongruous.
The prosecution for aggravated sexual battery in this case
required a showing of sexual abuse under Code § 18.2-67.10(6)(b),
which includes proof of force, and a showing that the victim was
under 13 years of age, Code § 18.2-67.3(A)(1). The common
factual element in this case - the age of the victim - serves as proof
of both the force requirement and the age requirement. Such a
circumstance is neither improper nor incongruous.

Id. at 36, 630 S.E.2d at 293.

Finally, the Martin Court discussed the 2004 amendment to Code § 18.2-67.10(6), which

the defendant asserted supported the theory that actual force was necessary to establish sexual

abuse under the circumstances of that case:

The 2004 amendment added a new subparagraph (c) to the
definition of sexual abuse set out in that statute: where the accused
causes a victim under the age of thirteen to touch the intimate parts
or clothing covering the intimate parts of the accused, the victim or
another person. Code § 18.2-67.10(6)(c). The 2004 amendment
did not remove the element of force from the other actions defined
as sexual abuse nor did it define “force” to exclude constructive
force. The substantive change effected by the 2004 amendment
was the creation of a category of sexual abuse based on the age of
the victim. While force is not an element of this category of sexual
abuse, it does not follow that actions undertaken with constructive
force could not qualify as sexual abuse under other provisions of
the current statute or under the provisions of the previous statute.
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 Therefore, we do not consider the 2004 amendment as altering the
definition of force when used in the context of sexual crimes.

Id. at 35, 630 S.E.2d at 293.

Appellant points to the Supreme Court’s holding that the 2004 amendment to Code

§ 18.2-67.10(6) “did not remove the element of force from the other actions defined as sexual

abuse nor did it define ‘force’ to exclude constructive force,” to argue that the fact that J.A. was

mentally incapacitated alone did not prove that appellant used constructive force to accomplish

the inappropriate touching. 1 Appellant argues that the Commonwealth did not show constructive

force, as defined in Black’s Law Dictionary: “Constructive force is anything which produces

fear sufficient to suspend the power of resistance and prevent the free exercise of the will.

Actual force is applied to the body; constructive is by threatening words or gestures and operates

on the mind.” Black’s Law Dictionary 284 (5th ed. 1979).

We disagree with appellant’s analysis of the Code and the case law relating to sexual

abuse and mental incapacity. In particular, we find Martin and Adkins v. Commonwealth, 20

Va. App. 332, 457 S.E.2d 382 (1995), instructive. Pursuant to Martin, the General Assembly did

not “intend[ ] to limit the meaning of the word ‘force’ to actual force.” 272 Va. at 35, 630

S.E.2d at 292. The Martin Court explicitly held that “an act undertaken against a victim’s will

and without the victim’s consent is an act undertaken with force.” Id. (citing Jones, 219 Va. at

986, 252 S.E.2d at 373). Thus, in the context of this case, constructive force existed if J.A. could

not legally consent to the sexual touching. See id. (citing Stump, 137 Va. at 807, 119 S.E. at 73).

In Adkins, this Court held that a rape occurred in violation of Code § 18.2-61(A)(ii), if

the victim is mentally incapacitated as defined in Code § 18.2-67.10(3), such that the victim

1
Specifically, appellant argued that the Commonwealth had to show that appellant’s
acceptance of J.A.’s offer to “play with” appellant’s penis constituted constructive force. As
previously noted, the trial court rejected this factual account of appellant’s encounter with J.A.,
and we will not discuss it further herein.
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“does not understand ‘the nature and consequences of the sexual act involved.’” Adkins, 20

Va. App. at 343, 457 S.E.2d at 387 (citing Code § 18.2-67.10(3)). This Court reversed Adkins’

conviction for having sexual intercourse with a mentally impaired sixteen-year-old girl through

the use of her mental incapacity, in violation of Code § 18.2-61(A)(ii), id. at 336, 457 S.E.2d at

384, after finding that although the sixteen-year-old girl suffered from a mental impairment, the

Commonwealth failed to prove that she did not understand the nature or consequences of sexual

intercourse. Id. at 347, 457 S.E.2d at 389. This Court found there was insufficient evidence to

prove Adkins had sexual intercourse with the girl “through the use of” her mental incapacity. Id.

at 347, 457 S.E.2d at 389.

In interpreting the rape statute, this Court engaged in a lengthy examination of the

General Assembly’s intent in prohibiting sexual intercourse with an individual “through the use

of” the individual’s mental incapacity. We stated,

The legislative purpose of Code § 18.2-61(A)(ii) is to
protect persons who are mentally impaired or retarded from being
sexually exploited due to their mental incapacity. See State v.
Ortega-Martinez, 881 P.2d 231, 236 (Wash. 1994) (explaining the
legislative purpose of a similar statute). However, such statutes
must not be interpreted and applied in a manner that creates an
unintended rule that would prohibit all mentally impaired or
retarded persons from engaging in consensual sexual intercourse
without having their partners commit a felony. See State v. Olivio,
589 A.2d 597, 604 (N.J. 1991) (expressing concern about
“unenlightened attitudes toward mental impairment and about the
importance of according the mentally handicapped their
fundamental rights”). By specifically defining mental incapacity,
the legislature has chosen to protect those mentally deficient
persons whose mental condition prevents them from
“understanding the nature and consequences of the sexual act
involved.” Code § 18.2-67.10(3).

Id. at 342-43, 457 S.E.2d at 387 (footnote omitted). Code § 18.2-67.3 shares the legislative

purpose of Code § 18.2-61, which was at issue in Adkins. See City of Richmond v. Confrere

Club of Richmond, Va., Inc., 239 Va. 77, 80, 387 S.E.2d 471, 473 (1990) (“Legislative intent is

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determined from the plain meaning of the words used.” (citing Marsh v. City of Richmond, 234

Va. 4, 11, 360 S.E.2d 163, 167 (1987); Va. Dept. of Labor v. Westmoreland Coal Co., 233 Va.

97, 99, 353 S.E.2d 758, 760-61 (1987); Ambrogi v. Koontz, 224 Va. 381, 386, 297 S.E.2d 660,

662 (1982))). Code § 18.2-67.3 also protects mentally impaired individuals, specifically those

persons who lack an “understanding [of] the nature and consequences” of sexual acts, from

sexual exploitation.

The Adkins Court’s narrow definition of “mental incapacity” and the narrow

circumstances during which sexual abuse is accomplished “through” the victim’s mental

incapacity is also relevant to our instant analysis:

Manifestly, the legislature did not intend to include as part
of the protected class of people under Code § 18.2-61(A)(ii) those
whose mental impairment or handicap may prevent them from
comprehending the more complex aspects of the nature or
consequences of sexual intercourse, but who, nevertheless, have
the mental capacity to have a basic understanding of the
elementary and rudimentary nature and consequences of sexual
intercourse. Not all persons who are mentally retarded or
handicapped need the special protection of Code § 18.2-61(A)(ii).
The range of intellectual functioning among the mentally impaired
and mentally retarded varies widely. The statute was not designed
to unfairly punish the sexual partners of those mentally impaired or
mentally retarded persons who have a basic understanding of the
act and consequences of sexual intercourse and are capable of
making a volitional choice to engage or not engage in such
conduct.

Adkins, 20 Va. App. at 345, 457 S.E.2d at 388.

Finally, and most pertinent to our analysis, the Adkins Court concluded that,

When a mentally impaired or mentally retarded person has
sufficient cognitive and intellectual capacity to comprehend or
appreciate that he or she is engaging in intimate or personal sexual
behavior which later may have some effect or residual impact upon
the person, upon the person’s partner, or upon others, then the
person does not have a “mental incapacity” within the meaning of
the statute. If a person is mentally incapacitated but, nevertheless,
has the capacity to understand the nature and consequences of the
sexual act, which understanding includes the capacity to make a
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 volitional choice to engage or not engage in such act, then that
person’s sexual partner has not violated the rape statute merely
because a mentally impaired person has made an unwise decision
or has chosen to be sexually active.

Id. at 345-46, 457 S.E.2d at 388-89.

The converse of the above analysis is also true. A mentally incapacitated individual may

not have the “capacity to make a volitional choice to engage or not engage” in a sexual act due to

their lack of understanding of the nature and consequences of the sexual act. See id.

Accordingly, when an individual is mentally incapacitated under Code § 18.2-67.10(3), the

individual is incapable of legally consenting to the sexual touching, on the grounds that

“[c]onsent without understanding is no consent at all.” Molina v. Commonwealth, 47 Va. App.

338, 358, 624 S.E.2d 83, 92 (2006) (holding that a jury instruction regarding the victim’s mental

incapacitation did not prejudice the defendant in a jury trial for rape).

In the instant case, the trial court found that J.A. did not have the mental capacity to

understand the nature and consequences of the sexual act. As discussed above, the evidence at

trial was sufficient to support this conclusion, and therefore, as a matter of law, J.A. did not have

the ability to provide legal consent to the sexual touching that appellant invited. Accordingly,

appellant sexually abused J.A. by constructively forcing him to touch appellant’s intimate parts,

and this sexual abuse constituted aggravated sexual battery because the touching was

accomplished through J.A.’s mental incapacity. 2

2
As the Supreme Court found in Martin, “the use of a common set of facts for proof of
differing elements of a crime” is appropriate in the instant case. See 272 Va. at 36, 630 S.E.2d at
293.
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 III. CONCLUSION

For the reasons stated, we find no error in the judgment of the trial court. Therefore we

affirm the appellant’s conviction for aggravated sexual battery.

Affirmed.

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