COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, Haley and Beales
Argued by teleconference
ARNOLD LYNN DE’ARMOND
OPINION BY
v. Record No. 1987-06-3 JUDGE D. ARTHUR KELSEY
DECEMBER 27, 2007
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Bruce H. Kushner, Judge
Robert L. Wegman (The Law Office of Robert L. Wegman,
on brief), for appellant.
Stephen R. McCullough, Deputy State Solicitor General
(Robert F. McDonnell, Attorney General; William E. Thro,
State Solicitor General, on brief), for appellee.
A jury convicted Arnold Lynn De’Armond of committing three acts of aggravated sexual
battery against his granddaughter, a child under the age of thirteen. See Code § 18.2-67.3(A)(1).
On appeal, he claims the trial court should have merged the three charges into one. Not doing
so, De’Armond argues, violated Code § 19.2-294 and the Double Jeopardy Clause of the Fifth
Amendment. We disagree and affirm.
I.
On appeal, “we review the evidence in the ‘light most favorable’ to the Commonwealth.”
Pryor v. Commonwealth, 48 Va. App. 1, 4, 628 S.E.2d 47, 48 (2006) (quoting Commonwealth v.
Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003)). This principle requires us to “discard
the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the
credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom.”
Id. (quoting Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980)).
The evidence at trial showed that De’Armond sexually abused his eight-year-old
granddaughter after she returned home from school one afternoon. While in his bedroom using
his computer, De’Armond took the child’s hand and “put it between his legs . . . on his penis.”
She quickly left his bedroom and went into another room of the house to do homework.
The child later returned to her grandfather’s bedroom. De’Armond was still on his
computer. She noticed that his penis was “sticking out” of his pants, and she told him so. He
stuck it back in his pants. Later, he again took her hand and put it on top of his penis. The child
moved her hand away; he moved it back. This occurred about five or six times. At some point
he asked her whether she “wanted to play with his penis.” The child testified De’Armond “took
out his penis and put my hand on it and made me squeeze it.” De’Armond then put his hand into
the child’s pants and touched her vagina for about four or five seconds. After that, De’Armond
rubbed the child’s prepubescent breasts for about five or ten minutes.
De’Armond told his granddaughter that “this was just between [her] and him.” Upset and
confused, the child immediately told her mother. The mother confronted De’Armond, and he
agreed to leave the house. When questioned by police, De’Armond confessed and admitted that
his granddaughter was “telling the truth” about what he had done to her. At trial, however,
De’Armond repudiated his confession. The child, he alleged, must have “inadvertently” brushed
against his penis. De’Armond also testified he may have “tickled” her “between her navel and
her panty line” and “patted her on the bottom” as she left the room, but he did not touch her
vagina or her chest.
Pursuant to separate indictments, finding instructions, and verdict forms, the jury found
De’Armond guilty of three acts of aggravated sexual battery: (i) De’Armond’s placing the
child’s hand on De’Armond’s penis, (ii) De’Armond’s touching of the child’s vagina, and (iii)
De’Armond’s touching of the child’s prepubescent breasts. The trial court adopted the jury’s
-2-
recommended sentences on each conviction, imposing the incarceration terms consecutively.
Both before and after trial, De’Armond argued that Code § 19.2-294 and the Double Jeopardy
Clause of the Fifth Amendment required that all three charges be merged into one. The trial
court rejected the argument and entered final judgment.
II.
On appeal, De’Armond repeats his claim that the three convictions violate his rights
under Code § 19.2-294 and the Double Jeopardy Clause of the Fifth Amendment. Like the trial
court, we find the arguments meritless.
A. CODE § 19.2-294 — “SAME ACT” REPROSECUTION BAR
Code § 19.2-294 states that a “conviction” under “two or more” statutes or ordinances
“shall be a bar to a prosecution or proceeding” when the underlying criminal event involves the
“same act.” Because the text imposes the bar only after a conviction, the statute applies just to
successive, not simultaneous, prosecutions. Phillips v. Commonwealth, 257 Va. 548, 551-52,
514 S.E.2d 340, 342 (1999). 1 Code § 19.2-294 also limits its statutory bar to successive
convictions under “two or more” statutes or ordinances, thus making the bar inapplicable when a
defendant suffers convictions under a single statute or ordinance authorizing multiple units of
prosecution.
In this case, De’Armond was convicted in a simultaneous prosecution for multiple
violations of a single statute. Either circumstance, by itself, undermines his reliance on Code
1
See also Jefferson v. Commonwealth, 43 Va. App. 361, 366, 597 S.E.2d 290, 292-93
(2004); Johnson v. Commonwealth, 38 Va. App. 137, 145 n.2, 562 S.E.2d 341, 345 n.2 (2002);
Slater v. Commonwealth, 15 Va. App. 593, 595, 425 S.E.2d 816, 817 (1993); Hall v.
Commonwealth, 14 Va. App. 892, 899-900, 421 S.E.2d 455, 460-61 (1992) (en banc). Code
§ 19.2-294 does not apply, moreover, when the abuser has committed multiple acts. See Ashby
v. Commonwealth, 208 Va. 443, 446, 158 S.E.2d 657, 659-60 (1968) (second conviction not
barred by predecessor to Code § 19.2-294 because the abuser “committed two acts”).
-3-
§ 19.2-294. The trial court, therefore, did not violate Code § 19.2-294 by refusing to consolidate
De’Armond’s three convictions into one.
B. DOUBLE JEOPARDY — STATUTORY UNIT OF PROSECUTION
De’Armond next argues that the trial court violated the Double Jeopardy Clause of the
Fifth Amendment by not consolidating his three convictions into one. Here again, we find
De’Armond’s argument inconsistent with settled principles.
In a simultaneous prosecution, the role of the Double Jeopardy Clause is “limited to
assuring that the court does not exceed its legislative authorization by imposing multiple
punishments for the same offense.” Stephens v. Commonwealth, 263 Va. 58, 62, 557 S.E.2d
227, 230 (2002) (quoting Brown v. Ohio, 432 U.S. 161, 165 (1977)); Coleman v.
Commonwealth, 261 Va. 196, 200, 539 S.E.2d 732, 734 (2001). The legislature retains plenary
discretion to “determine the appropriate ‘unit of prosecution’” and to punish each violation
separately. Nelson v. Commonwealth, 41 Va. App. 716, 740, 589 S.E.2d 23, 35 (2003) (citation
omitted), aff’d on other grounds, 268 Va. 665, 604 S.E.2d 76 (2004); see Mason v.
Commonwealth, 49 Va. App. 39, 46, 636 S.E.2d 480, 483 (2006). In determining the statutory
unit of prosecution, “the controlling factor is legislative intent.” Kelsoe v. Commonwealth, 226
Va. 197, 199, 308 S.E.2d 104, 104 (1983). The multiple punishments prohibition, therefore,
remains from start to finish wholly dependent on statutory interpretation. See John L. Costello,
Virginia Criminal Law & Procedure § 51.3-4, at 688-90 (3d ed. 2002).
In this case, the jury convicted De’Armond of three violations of Code § 18.2-67.3(A)(1).
Under that statute, an accused “shall be guilty of aggravated sexual battery if he or she sexually
abuses the complaining witness, and . . . [t]he complaining witness is less than 13 years of age”
at the time of the offense. Code § 18.2-67.3(A)(1) “‘Sexual abuse’ means an act committed
-4-
with the intent to sexually molest, arouse, or gratify any person” in situations where, for
example, the accused intentionally touches the victim’s “intimate parts” or causes the victim to
touch the accused’s “intimate parts.” Code § 18.2-67.10(6)(a) to 18.2-67.10(6)(d) (emphasis
added). “‘Intimate parts’ means the genitalia, anus, groin, breast, or buttocks of any person.”
Code § 18.2-67.10(2).
When coupled with its definitional provisions, Code § 18.2-67.3(A)(1) creates a unit of
prosecution for every act of sexual abuse and, at a minimum, contemplates separate acts for each
of the separate “intimate parts” described in Code § 18.2-67.10(2). This interpretation parallels
our understanding of the appropriate units of prosecution under other sex crime statutes. See,
e.g., Nelson, 41 Va. App. at 740, 589 S.E.2d at 35 (holding that the forcible sodomy statute
“indicates that the legislature intended each act constitute a discrete unit of prosecution”); Carter
v. Commonwealth, 16 Va. App. 118, 128, 428 S.E.2d 34, 42 (1993) (concluding that a defendant
should not be permitted “a ‘free rape’ merely because he chooses to repeat his crime on the same
victim within a short period of time”); see also Mason, 49 Va. App. at 48, 636 S.E.2d at 484
(holding the “unit of prosecution” for possession of child pornography “corresponds to the
number of individual items of sexually explicit visual material”).
Tracking the indictments, the trial court separated the finding instructions and jury
verdict forms into three prosecutorial units: (i) De’Armond’s placing the child’s hand on
De’Armond’s penis, (ii) De’Armond’s touching of the child’s vagina, and (iii) De’Armond’s
touching of the child’s prepubescent breasts. This segregation of offenses properly recognized
the separate acts of touching separate intimate parts. The trial court, therefore, did not divide
De’Armond’s culpability beyond the indivisible units of prosecution contemplated by Code
§ 18.2-67.3(A)(1). It necessarily follows that the trial court likewise did not impose multiple
punishments for the same offense in violation of the Double Jeopardy Clause.
-5-
De’Armond finds this analysis inconsistent with the rule of lenity — a canon of statutory
construction which, he claims, requires that we strictly construe Code § 18.2-67.3(A)(1) in his
favor to permit only one prosecution when multiple acts of sexual abuse “all occurred in one
distinct, continuous and uninterrupted course of conduct bounded closely in terms of place and
time.” Appellant’s Br. at 13. We believe this suggested statutory construction, however, asks far
more from the rule of lenity than it can deliver.
Only when a “penal statute is unclear” do courts apply the rule of lenity and strictly
construe the statute in the criminal defendant’s favor. Waldrop v. Commonwealth, 255 Va. 210,
214, 495 S.E.2d 822, 825 (1998) (footnote omitted and emphasis added). “Absent ambiguity, the
rule of lenity is not applicable to guide statutory interpretation.” United States v. Johnson, 529
U.S. 53, 59 (2000); see also Holsapple v. Commonwealth, 266 Va. 593, 598, 587 S.E.2d 561,
564 (2003) (“We do not agree that the statutory language is ambiguous. Hence, we construe the
language according to its plain meaning without resort to rules of statutory interpretation.”).
“The simple existence of some statutory ambiguity,” moreover, “is not sufficient to
warrant application of that rule, for most statutes are ambiguous to some degree.” Muscarello v.
United States, 524 U.S. 125, 138 (1998). And the “mere possibility of articulating a narrower
construction” does not by itself make the rule of lenity applicable. Smith v. United States, 508
U.S. 223, 239 (1993). Nor can the rule be “invoked by a grammatical possibility” that raises a
manifestly “implausible reading” of the legislative purpose. Caron v. United States, 524 U.S.
308, 316 (1998).
Instead, the rule of lenity serves only to resolve genuine, plausible ambiguities and “does
not abrogate the well recognized canon that a statute . . . should be read and applied so as to
accord with the purpose intended and attain the objects desired if that may be accomplished
without doing harm to its language.” Cartwright v. Commonwealth, 223 Va. 368, 372, 288
-6-
S.E.2d 491, 493 (1982) (citation omitted). Despite the rule of lenity, “courts are nevertheless
bound by the plain meaning of unambiguous statutory language and ‘may not assign a
construction that amounts to holding that the General Assembly did not mean what it actually
has stated.’” Gunn v. Commonwealth, 272 Va. 580, 587, 637 S.E.2d 324, 327 (2006) (citations
omitted and emphasis added); Dugger v. Commonwealth, 40 Va. App. 586, 593, 580 S.E.2d 477,
480-81 (2003) (recognizing the rule of lenity only when applied to a genuine “ambiguity or
reasonable doubt” in the statutory text). 2
Read together with its definitional provisions, Code § 18.2-67.3(A)(1) is unambiguous.
Its language creates “an offence that can be committed uno ictu” rather than one inherently
“continuous in its character.” See Blockburger v. United States, 284 U.S. 299, 302 (1932)
(citation omitted). It clearly defines “sexual abuse,” Code § 18.2-67.3(A)(1), as “an act”
involving an “intimate part” of the body, Code § 18.2-67.10(6), which includes “the genitalia,
anus, groin, breast, or buttocks of any person,” Code § 18.2-67.10(2). De’Armond’s proffered
statutory construction — aggregating as a single unit of prosecution multiple acts involving
distinct intimate parts of the body at distinct times — does not clarify ambiguous statutory
language, but rather rewrites unambiguous statutory language.
III.
Finding no violation of either Code § 19.2-294 or the Double Jeopardy Clause, we affirm
De’Armond’s convictions for sexually abusing his granddaughter.
Affirmed.
2
See also United States v. Gosselin World Wide Moving, N.V., 411 F.3d 502, 514 (4th
Cir. 2005) (directing that “traditional tools of statutory construction” be consulted before
ambiguity is said to exist (citing United States v. Shabani, 513 U.S. 10, 17 (1994))).
-7-