COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Humphreys
Argued at Richmond, Virginia
JAMES DARREN WACTOR
OPINION BY
v. Record No. 1026-01-2 JUDGE ROSEMARIE ANNUNZIATA
MAY 28, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
David F. Berry, Judge Designate
Llezelle Agustin Dugger, Assistant Public
Defender, for appellant.
Amy L. Marshall, Assistant Attorney General
(Randolph A. Beales, Attorney General, on
brief), for appellee.
James Darren Wactor was convicted by a jury of object
sexual vaginal penetration, in violation of Code § 18.2-67.2.
The circuit court sentenced the defendant to five years in
prison in accordance with the jury's verdict. Wactor contends
the evidence was insufficient to support his conviction. For
the reasons that follow, we affirm.
Background
In November of 1999, Tina Dudley, a twenty-three-year-old
woman suffering from cerebral palsy, severely injured her leg in
an automobile accident. After a short stay in the hospital, she
was admitted to Eldercare Gardens for physical rehabilitation.
Her discharge was set for January 21, 2000.
On January 20, 2000, Dudley was so excited about her
imminent release, she decided to sleep in her street clothes.
Angela Saylor, a Certified Nursing Assistant (CNA), checked on
Dudley at about 10:30 p.m. Saylor offered to help Dudley change
into her nightclothes but Dudley declined the offer because she
wanted to be ready to leave the next morning.
Kelly Diaz, also a CNA, began her shift at 11:00 p.m. She
was assigned to Dudley's room. When she checked on Dudley, she
also offered to help her change her clothes. Dudley again
refused.
Later that evening, Dudley rang the nurse's bell for
assistance. Her physical condition prevented her from
repositioning herself in bed. Wactor answered the call,
although he was not assigned to her room. After repositioning
Dudley in her bed, he, too, offered to help change her clothes.
Again, she declined. When Wactor pressed her again to change
her clothes, Dudley agreed.
While changing her clothes, Wactor told Dudley that she
"needed to be cleaned." The statement did not strike Dudley as
unusual because her medication at times caused her to have an
involuntary and unperceived bowel movement. Wactor removed her
clothes and placed Dudley on her side. He put on gloves and
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wrapped his hand in a towel. While Dudley was lying on her
side, Wactor cleaned her "bottom." Dudley felt pressure on her
"bottom" and then inside her rectum. When Wactor finished
"cleaning" her, he threw the towel on the floor; Dudley noticed
it was clean.
Wactor then asked Dudley for a hug. Assuming an innocent
and amicable motive, Dudley complied. However, to Dudley’s
surprise, during the hug, Wactor asked, "would you suck my
dick?" "[H]e took his hand and he slid it up under [her] gown
and [she felt] pressure in [her] vagina." He kept his fingers
inside her vagina for about three to four minutes. She was "so
shocked [she] couldn't say anything." Before leaving, he said,
"If you feel it in your mouth, don't bite it." Still in shock,
she again said nothing. Wactor left, stating that he would
return to "take [her] vitals."
Dudley was so afraid Wactor would return that she refrained
from using the call button to signal her need for help. After a
few minutes, she telephoned her friend and CNA nurse, Angela
Saylor. Dudley was upset and her crying made it difficult for
Saylor to understand her. Dudley asked Saylor how she could
report something that "shouldn't have been done." Saylor,
realizing that something was seriously wrong, notified Linda
Leap, the director of nurses. Leap and another nurse on duty
came to Dudley's room and found her crying. Dudley told the
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nurses what had occurred and expressed her fear that Wactor
would return.
When Leap confronted Wactor with the accusations, he denied
doing anything improper to Dudley. Dudley's fears were relieved
after Leap asked Wactor to leave for the evening.
Wactor claimed he changed Dudley's clothes because she
smelled of urine. However, Diaz, the nurse responsible for
Dudley, did not find her soiled or smelling of urine when she
checked on Dudley just minutes earlier. Moreover, no evidence
of blood, stool, or urine was found on the bed linens after the
incident.
In addition, Dudley had been fitted with an ileostomy bag
through which an ileal conduit was connected directly to her
bladder. The bag is designed to empty the patient's bladder
without urination. When Diaz checked on Dudley, the bag was in
working order. It was also intact when Leap checked it after
the incident. Furthermore, had it not been properly operating,
urine would have leaked onto the floor, not on Dudley's vaginal
area. Diaz, a CNA, testified that a nurse would never need to
clean a patient with an ileostomy bag inside their vagina or
rectum.
Analysis
Wactor contends the evidence at trial was insufficient to
prove that he committed object sexual penetration.
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Specifically, he argues that the Commonwealth failed to prove
that he accomplished the act by force, threat or intimidation or
that the victim was physically helpless. For the following
reasons, we disagree and affirm Wactor's conviction.
When the sufficiency of the evidence is challenged on
appeal, "[w]e view the evidence in the light most favorable to
the Commonwealth, granting to it all reasonable inferences
fairly deducible from the evidence." Cooper v. Commonwealth, 31
Va. App. 643, 646, 525 S.E.2d 72, 73 (2000). The appellate
court must, therefore, "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 that may be drawn" from the credible evidence.
Watkins v. Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859,
866 (1998). The credibility of the witnesses and the weight of
the evidence are matters to be determined solely by the trier of
fact. Swanson v. Commonwealth, 8 Va. App. 376, 378-79, 382
S.E.2d 258, 259 (1989). Furthermore, the decision of the trial
court will not be disturbed unless plainly wrong or without
evidence to support it. McGee v. Commonwealth, 25 Va. App. 193,
197-98, 487 S.E.2d 259, 261 (1997) (en banc). "If there is
evidence to support the conviction," we will not substitute our
judgment for that of the trier of fact, even were our opinion to
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differ. Commonwealth v. Presley, 256 Va. 465, 466, 507 S.E.2d
72, 72 (1998).
A conviction for object sexual penetration requires proof
that the defendant:
Penetrate[d] the labia majora or anus of a
complaining witness who is not his
. . . spouse with any object . . . [and that
the act was] accomplished against the will
of the complaining witness, by force,
threat, or intimidation . . . or through the
use of the complaining witness's mental
incapacity or physical helplessness.
Code § 18.2-67.2(A). Whether the act was accomplished by
"force, threat, or intimidation" is ordinarily a question for
the fact finder. Snyder v. Commonwealth, 220 Va. 792, 796, 263
S.E.2d 55, 58 (1980).
Object sexual penetration may be analogized to the crimes
of rape (Code § 18.2-61), forcible sodomy (Code § 18.2-67.1),
aggravated sexual battery (Code § 18.2-67.3), and sexual battery
(Code § 18.2-67.4), in that each offense requires proof of
"force, threat, or intimidation" or "mental incapacity" or
"physical helplessness." Therefore, cases interpreting these
sections of the code are useful in discerning the meaning and
intent of Code § 18.2-67.2. See First Nat'l Bank v. Holland, 99
Va. 495, 504, 39 S.E. 126, 129-30 (1901) (holding that the Code
of Virginia constitutes a single body of law and, therefore,
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related sections can be looked to for interpretation of a
section where the same phraseology is used).
The evidence at trial supports the conclusion that Wactor
used sufficient force to overcome Dudley's will in order to
accomplish the unlawful touching. To determine whether a
defendant has employed the requisite force to support a
conviction for object sexual penetration, "the inquiry is
whether the act or acts were effected with or without the
victim's consent." Jones v. Commonwealth, 219 Va. 983, 986, 252
S.E.2d 370, 372 (1979). "Wherever there is a carnal connection,
and no consent in fact, . . . there is evidently, in the
wrongful act itself, all the force which the law demands as an
element of the crime." Bailey v. Commonwealth, 82 Va. 107, 111
(1886); accord Mings v. Commonwealth, 85 Va. 638, 640, 8 S.E.
474, 475 (1889) (quoting 2 Bish. Crim. Law. § 1078). Hence, the
force used by the defendant must be sufficient to accomplish the
act as well as to overcome the will of the victim. Johnson v.
Commonwealth, 5 Va. App. 529, 534, 365 S.E.2d 237, 240 (1988)
(holding that a conviction for sexual battery requires proof of
"some force . . . to overcome the will of the complaining
witness"). To overcome the victim's will, the force must be
"sufficient to overcome [her] resistance . . . . " Snyder, 220
Va. at 796, 263 S.E.2d at 57; Davis v. Commonwealth, 186 Va.
936, 946, 45 S.E.2d 167, 171 (1947); Jordan v. Commonwealth, 169
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Va. 898, 902, 194 S.E. 719, 720 (1938); Mings, 85 Va. at 640, 8
S.E. at 475; Bailey, 82 Va. at 111. 1
The degree of resistance by the victim and, consequently,
the degree of force required to overcome her will, "necessarily
depend[] on the circumstances of each case, taking into
consideration the relative physical condition of the
participants and the degree of force manifested." Jones, 219
Va. at 986, 252 S.E.2d at 372 (citing Bradley v. Commonwealth,
196 Va. 1126, 1135, 86 S.E.2d 828, 833 (1955)); accord Mings, 85
Va. at 639-40, 8 S.E. at 475; Bailey, 82 Va. at 111. 2 "Indeed,
1
Defendant argues that the Virginia Supreme Court cases
cited herein are inapplicable because they were decided before
the enactment of the statute. We disagree. Before 1981, crimes
of sexual assault required a showing of force. See Snyder, 220
Va. at 796, 263 S.E.2d at 57; Davis, 186 Va. at 946, 45 S.E.2d
at 171; Jordan, 169 Va. at 902, 194 S.E. at 720; Mings, 85 Va.
at 640, 8 S.E. at 475. Threats or intimidation of the victim
were not legally relevant in establishing the crime of rape. By
adding threat or intimidation as means sufficient to prove
sexual assault crimes in 1981, the legislature intended to
expand, rather than restrict, the parameters of the crimes. See
Sutton v. Commonwealth, 228 Va. 654, 663, 324 S.E.2d 665, 669
(1985) (noting that the legislature's intent in including "a
prohibition against sexual intercourse with a woman against her
will by threat or intimidation [in Code § 18.2-61], was to
expand the parameters of rape"). The Virginia Supreme Court's
definition of the requisite force to accomplish sexual assault
remained and remains unchanged.
2
For example, in Mings, the trial court instructed the jury
that the force required to support the defendant's conviction
for rape "must be such as may reasonably be supposed adequate to
overcome the physical resistance of the [victim]," taking into
consideration the relative strength of the parties and upon all
the facts and circumstances of each particular case, including,
but not limited to the victim's outcries and expressions of
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[the Supreme Court of Virginia] has said that 'no positive
resistance' by the victim need be demonstrated if it appears
that the crime was effected without her consent." Jones, 219
Va. at 986, 252 S.E.2d at 372 (citing Mings, 85 Va. at 640, 8
S.E. at 475); accord Snyder, 220 Va. at 796, 267 S.E.2d at 57.
To determine whether the defendant used sufficient force to
overcome the victim's will in Jones, the Supreme Court of
Virginia considered all of the circumstances attending the
commission of the crime. 219 Va. at 986-87, 252 S.E.2d at
372-73. The significant evidence found sufficient in Jones
included the relationship of the victim to the perpetrator, the
situs of the offense, the aggressive nature of the defendant’s
behavior and the fear created in the victim. The Court affirmed
the conviction based on evidence that the victim did not know
the defendant, that the defendant drove her to a remote area
where the offense was committed, that the victim was ordered to
submit, and that the victim was frightened during and after the
incident. Id. Despite the fact that the victim "was not
struck, that she did not scream, and that she did not fight her
assailants," the Court held that "the evidence amply supports
the conclusion of fact that these crimes were committed against
alarm. 85 Va. at 639-40, 8 S.E. at 475. Under Mings, no
particular amount of resistance is required, provided the act
was committed against the victim's will and without her consent.
Id. at 640, 8 S.E. at 475.
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the victim's will, without her consent and thus by force." Id.
at 986, 252 S.E.2d at 372.
The present case likewise requires that we determine
whether the crime committed against Dudley was "against [her]
will, without her consent and thus by force." Id. In
considering whether Wactor employed force sufficient to overcome
Dudley's resistance and will, we consider all of the
circumstances, including the time and place of the crime, the
victim's reaction during and after the incident, as well as the
parties' relationship and their relative physical capabilities.
See id. at 986-87, 252 S.E.2d at 372-73. We find that the
evidence supports the trial court's conclusion that Wactor used
sufficient force to overcome Dudley's will.
Dudley could not walk on her own or position herself in
bed. Only one of her arms was fully functional. She was thus
unable to physically resist Wactor or easily call the nurses for
help. Moreover, she expected Wactor to provide nursing
assistance and, therefore, permitted him to undress and touch
her. Wactor, as her caretaker, was thus in a position of trust,
a position he used to commit the offense. When we consider
Dudley's physical condition, which limited her ability to defend
herself, 3 Wactor's status as her nurse and his relationship to
3
We note that, notwithstanding facts in this case which
appear to make out a case of sexual object penetration
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her in that capacity, the use he made of his status and
professional relationship to Dudley to initiate unwanted
touching and effectuate the object sexual vaginal penetration,
and the fear and psychological paralysis Wactor's aggressive
behavior instilled, we conclude that the Commonwealth proved the
requisite force to overcome Dudley's will and resistance. See
Mings, 85 Va. at 640, 8 S.E. at 475 (holding that the defendant
must use or show force sufficient to overcome resistance, but
that no resistance is required where the evidence shows lack of
consent); accord Jones, 219 Va. at 986, 252 S.E.2d at 372;
Snyder, 220 Va. at 796, 263 S.E.2d at 57.
Affirmed.
perpetrated "through the use of [Dudley's] . . . physical
helplessness," Code § 18.2-67.2(A), the statutory definition of
"physical helplessness" excludes victims with Dudley's physical
infirmities because it is limited to victims with a "physical
condition" that renders them "physically unable to communicate
an unwillingness to act . . . ." Code § 18.2-67.10(4). Because
Dudley was physically able to communicate, the evidence in this
case would not be sufficient to establish "physical
helplessness" and Wactor's conviction cannot be premised on this
element of the offense.
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