COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, Petty and Senior Judge Willis
PAUL TALMADGE BOWDEN
OPINION BY
v. Record No. 1651-07-1 JUDGE WILLIAM G. PETTY
OCTOBER 7, 2008
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ACCOMACK COUNTY
Glen A. Tyler, Judge
(Patrick A. Robbins, on brief), for appellant. Appellant submitting
on brief.
(Robert F. McDonnell, Attorney General; Richard B. Smith, Special
Assistant Attorney General, on brief), for appellee. Appellee
submitting on brief.
Following a bench trial, appellant, Paul Talmadge Bowden, was convicted of aggravated
sexual battery in violation of Code § 18.2-67.3. Bowden challenges this conviction, arguing that the
trial court erred when it held that aggravated sexual battery is a lesser-included offense of forcible
sodomy. For the reasons stated below, we agree with Bowden and reverse his conviction.
I. BACKGROUND
Appellant, Paul Talmadge Bowden, was indicted for committing forcible sodomy by
cunnilingus on a child less than thirteen years of age in violation of Code § 18.2-67.1. At the
conclusion of the Commonwealth’s evidence, Bowden moved to strike, arguing that the
Commonwealth had not proved the element of penetration. After the trial court ruled there was no
such proof, the Commonwealth contended that even if the evidence was insufficient to prove
forcible sodomy, “sexual battery [was] still a lesser-included offense.” The trial court agreed and
ultimately convicted Bowden of aggravated sexual battery. Bowden was sentenced to twenty years
incarceration with ten years suspended. This appeal followed.
II. ANALYSIS
Because the Due Process Clauses of both the Constitution of the United States and the
Constitution of Virginia require that a criminal defendant be notified of the nature of the charges
against him, “an accused cannot be convicted of a crime that has not been charged, unless the
crime is a lesser-included offense of the crime charged.” Commonwealth v. Dalton, 259 Va.
249, 253, 524 S.E.2d 860, 862 (2000). It is well settled that “[a] lesser-included offense is an
offense which is composed entirely of elements that are also elements of the greater offense.”
Kauffmann v. Commonwealth, 8 Va. App. 400, 409, 382 S.E.2d 279, 284 (1989). “Stated
differently, an offense is not a lesser-included offense if it contains an element that the charged
offense does not contain.” Dalton, 259 Va. at 253, 524 S.E.2d at 862 (citing Jones v.
Commonwealth, 218 Va. 757, 759, 240 S.E.2d 658, 660 (1978)).
When determining “whether each [offense] requires proof of a fact which the other does
not . . . [,]” we examine the offenses “in the abstract, rather than with reference to the facts of the
particular case under review.” Blythe v. Commonwealth, 222 Va. 722, 726, 284 S.E.2d 796, 798
(1981) (quoting Blockburger v. United States, 284 U.S. 299, 304 (1932); citing Whalen v. United
States, 445 U.S. 684, 688 (1980)) (internal quotation marks and citations omitted). Because this
case involves the trial court’s application of a statute, we review de novo. Ainslie v. Inman, 265
Va. 347, 352, 577 S.E.2d 246, 248 (2003).
Viewing the elements of forcible sodomy and sexual battery in the abstract, we conclude
that sexual battery is not a lesser-included offense of forcible sodomy. As relevant to our
analysis, the crime of forcible sodomy is comprised of the following elements:
1. An accused shall be guilty of forcible sodomy if he or she
engages in cunnilingus with a complaining witness who is
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not his or her spouse, or causes a complaining witness,
whether or not his or her spouse, to engage in such acts
with any other person, and
2. The complaining witness is less than thirteen years of age
or otherwise included in Code § 18.2-67.1(A)(2).
See Code § 18.2-67.1; see also Horton v. Commonwealth, 255 Va. 606, 612, 499 S.E.2d 258,
261 (1998). Further, “[p]enetration is an essential element of the crime of sodomy.” Ryan v.
Commonwealth, 219 Va. 439, 444, 247 S.E.2d 698, 702 (1978). The element of penetration may
be proved by circumstantial evidence, and the penetration “need only be slight.” Id.; see also
Horton, 255 Va. at 613, 499 S.E.2d at 261-62 (“[W]e conclude that penetration of any portion of
the vulva is sufficient to prove sodomy by cunnilingus.” (citations omitted)).
In contrast, the crime of aggravated sexual battery is composed of the following
elements:
1. The accused intentionally touched either the complaining
witness’s genitalia, anus, groin, breast, or buttocks or
material covering those body parts;
2. With the intent to sexually molest, arouse, or gratify either
the perpetrator or the victim; and
3. The victim was less than thirteen years of age, or otherwise
included in Code § 18.2-67.3(A)(2), (3) or (4).
See Code §§ 18.2-67.3 (aggravated sexual battery) & 18.2-67.10(2), (6) (general definitions).
The Attorney General observed on brief that “the only element common to both crimes is
that the victim must be less than 13 years of age.” 1 Although this statement is not entirely
1
The Attorney General concedes that the trial court erred when it determined that sexual
battery was a lesser-included offense of forcible sodomy. However, “[o]ur fidelity to the
uniform application of law precludes us from accepting concessions of law made on appeal.”
Logan v. Commonwealth, 47 Va. App. 168, 172, 622 S.E.2d 771, 773 (2005) (en banc) (citing
Cofield v. Nuckles, 239 Va. 186, 194, 387 S.E.2d 493, 498 (1990); Tuggle v. Commonwealth,
230 Va. 99, 111 n.5, 334 S.E.2d 838, 846 n.5 (1985)). Thus, we review the record presented to
us independent of the Attorney General’s concession of law.
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accurate, 2 it describes the issue before us fairly well. Viewing the elements of the crimes in the
abstract, forcible sodomy requires proof of penetration, while an accused may be convicted of
sexual battery upon proof that he or she merely touched the clothing covering the victim’s
“intimate parts.” Compare Horton, 255 Va. at 613, 499 S.E.2d at 261-62 (discussing the
penetration element), with Code § 18.2-67.10(6) (“‘Sexual abuse’ means an act committed with
the [requisite] intent, where: [t]he accused intentionally touches the complaining witness’s
intimate parts or material directly covering such intimate parts[.]”).
On the other hand, aggravated sexual battery requires proof that the act of touching was
done with the specific “intent to sexually molest, arouse or gratify . . . .’” Quinones v.
Commonwealth, 35 Va. App. 634, 640, 547 S.E.2d 524, 527 (2001). In contrast, sodomy, like
rape, does not require a specific intent. See, e.g., Velesquez v. Commonwealth, 276 Va. 326,
329, 661 S.E.2d 454, 456 (2008) (“Rape . . . is a general-intent crime . . . .”); State v. Plunkett,
934 P.2d 113, 119 (Kan. 1997) (“[S]odomy, like rape, is a general intent crime.”).
Thus, it is apparent from the plain language of the statutes that forcible sodomy and
aggravated sexual battery each require proof of elements not required by the other. Therefore
aggravated sexual battery is not a lesser-included offense of forcible sodomy.
2
The act of sodomy, by necessity, requires a type of touching that could fulfill the
touching element required for a conviction of aggravated sexual battery.
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III. CONCLUSION
Based upon the foregoing discussion, we reverse Bowden’s conviction and dismiss the
indictment. 3
Reversed.
3
The Attorney General asks us to reverse and dismiss the indictment in this case
“without prejudice to the Commonwealth’s right to charge and try Bowden for aggravated sexual
battery in violation of [Code] § 18.2-67.3, if the Commonwealth were so disposed.” We decline
to give an advisory opinion regarding whether a prosecution for sexual battery would violate the
Double Jeopardy Clause. See Pilson v. Commonwealth, 52 Va. App. 442, 446, 663 S.E.2d 562,
564 (2008) (“‘Advisory opinions represent an attenuate exercise of judicial power,’ one which
we traditionally avoid in all but the most extenuating circumstances. None exist here.” (quoting
Va. State Police v. Elliott, 48 Va. App. 551, 553, 633 S.E.2d 203, 204 (2006))).
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