Bower v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Clements and Agee
Argued at Salem, Virginia

WILLIAM PATRICK BOWER
OPINION BY
v. Record No. 1376-00-3 JUDGE G. STEVEN AGEE
AUGUST 21, 2001
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ROANOKE COUNTY
Roy B. Willett, Judge

Thomas M. Blaylock for appellant.

Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.

William Patrick Bower (Bower) was convicted by the Roanoke

County Circuit Court of animate object sexual penetration, in

violation of Code § 18.2-67.2, and of taking indecent liberties

with a child by a person in a custodial relationship, in

violation of Code § 18.2-370.1. Bower petitioned this Court to

appeal his convictions. Bower's appeal of the indecent

liberties conviction was denied, and the only matter before this

Court is his appeal of the animate object sexual penetration

conviction.

He contends the evidence was insufficient to convict him

under Code § 18.2-67.2 because the Commonwealth failed to prove

he employed the required elements of force, threat or

intimidation. We agree the Commonwealth failed to prove force,
threat or intimidation and, therefore, we reverse the conviction

for animate object sexual penetration.

I. BACKGROUND

One morning in April 1995, while his thirteen-year-old

daughter slept, Bower entered her room and lay down on the bed

beside her. Bower was physically larger than his daughter.

Prior to this time, Bower had never slept in the same bed with

his daughter.

Bower put his hand under his daughter's pajamas and

underwear, placed his hand on her buttocks, fondled her breasts

and inserted his finger into her vagina. Bower fondled his

daughter's breasts for five minutes; his finger remained in her

vagina for approximately twenty minutes. During the entire

incident, the daughter was facing away from Bower and pretended

to be asleep. She did not move or give any indication that she

was awake. No communication occurred between Bower and his

daughter. Bower then left the room and his home for the day.

The daughter went back to sleep.

The daughter testified that she was so frightened by what

happened that she was "too scared to even [tell her] own

mother." After the incident, the daughter made certain that she

never went anywhere or slept in her home when she was alone with

Bower. She also testified that her relationship with her father

prior to the incident was "a good one." Bower and his daughter

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never discussed the incident, and nothing of that nature

occurred again.

The daughter did not report the incident to police until

1999. Bower had remarried and fathered a second daughter.

Bower's daughter testified that she then made the report because

she "didn't want it to happen to [Bower's second daughter]."

Upon his conviction in a bench trial, Bower was sentenced

to a term of ten years incarceration, with five years suspended,

on the sexual penetration offense, and a term of five years

incarceration, all suspended, on the indecent liberties

conviction. Presciently, the Commonwealth's Attorney requested

the trial court, at the conclusion of the sentencing hearing, to

switch the sentences so the active penitentiary time applied to

the indecent liberties conviction. The trial judge declined to

change the sentences.

II. STANDARD OF REVIEW

When the sufficiency of the evidence is challenged, we

consider all the evidence, and any reasonable inferences fairly

deducible therefrom, in the light most favorable to the party

that prevailed at trial, which is the Commonwealth in this case.

Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,

537 (1975). Witness credibility, the weight accorded the

testimony and the inferences to be drawn from proven facts are

matters to be determined by the fact finder. See Long v.

Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989).

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A trial court's judgment will not be disturbed on appeal unless

it is plainly wrong or without evidence to support it. See Code

§ 8.01-680.

III. ANALYSIS

Bower's daughter was thirteen years of age at the time of

the incident so the Commonwealth bears the burden of proving

each of the elements of Code § 18.2-67.2(A)(2) beyond a

reasonable doubt. 1 See Holz v. Commonwealth, 220 Va. 876, 880,

263 S.E.2d 426, 428 (1980). The Commonwealth conceded at trial

and again at oral argument that it produced no evidence of force

or threat by Bower toward his daughter. Therefore, the

Commonwealth was required to prove at trial the animate object

1
Code § 18.2-67.2 provides in part:

A. An accused shall be guilty of inanimate
or animate object sexual penetration if he
or she penetrates the labia majora or anus
of a complaining witness who is not his or
her spouse with any object, other than for a
bona fide medical purpose, or causes such
complaining witness to so penetrate his or
her own body with an object or causes a
complaining witness, whether or not his or
her spouse, to engage in such acts with any
other person or to penetrate, or to be
penetrated by, an animal, and

1. The complaining witness is less than
thirteen years of age, or

2. The act is accomplished against the
will of the complaining witness, by force,
threat or intimidation of or against the
complaining witness or another person, or
through the use of the complaining witness's
mental incapacity or physical helplessness.

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sexual penetration was accomplished through Bower's intimidation

of his daughter.

Bower contends the evidence at trial was insufficient to

prove beyond a reasonable doubt that he "intimidated" his

daughter in the context of the animate object sexual penetration

statute. The Commonwealth argues that even if direct evidence

in the record fails to prove intimidation, the fact of the

father-daughter relationship and Bower's greater physical size

are sufficient, standing alone, to sustain the conviction. Our

examination of the statute, the related criminal sexual assault

statutes and the case law confirm Bower's argument. We find the

Commonwealth failed to meet the burden of proving intimidation

in this case.

We begin our analysis with the Supreme Court of Virginia's

decision in Sutton v. Commonwealth, 228 Va. 654, 324 S.E.2d 665

(1985), where the Court defined "intimidation" of the victim

under the rape statute, Code § 18.2-61; a statute with identical

language to Code § 18.2-67.2. 2

Intimidation, as used in the statute, means
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

2
Both statutes describe the offenses as acts "accomplished
against the will of the complaining witness by force, threat or
intimidation of or against the complaining witness."

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 who, under the circumstances, is vulnerable
and susceptible to such pressure.

Sutton, 228 Va. at 663, 324 S.E.2d at 670.

In Sutton, a fifteen-year-old physically handicapped girl

was living with her father who "beat her all the time." To

escape her "horrible" life, she accepted the invitation of her

aunt and uncle to reside with them. They knew of the young

girl's fear of physical abuse if she returned to live with her

father and that she had no other options for a residence.

Almost from the moment of her arrival, the uncle

persistently solicited the victim for sex, which she refused.

The aunt continually pressured her niece to have sex with the

uncle and threatened to send her back to her father if she

continued to resist. The niece feared a return to her father's

physical abuse and physical violence from the aunt and uncle

whose violent acts she constantly witnessed. Out of that fear,

the niece eventually submitted to the uncle while the aunt

watched. The Supreme Court affirmed the uncle's rape conviction

finding his course of conduct constituted "intimidation" of the

young victim because of her fear of bodily harm.

This Court has applied the Sutton definition of

intimidation in the context of the similarly worded sexual

battery statute, Code § 18.2-67.4, to require "putting a victim

in fear of bodily harm." See Woodard v. Commonwealth, 27 Va.

App. 405, 410, 499 S.E.2d 557, 559 (1998); Melton Clark v.

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Commonwealth, 12 Va. App. 1163, 1165, 408 S.E.2d 564, 566

(1991).

Employing the canon of construction that identical language

in similar statutes should be interpreted in pari materia, we

adopt the same definition of "intimidation" for the purposes of

Code § 18.2-67.2 as used in Code § 18.2-61. 3 "[T]he use of

identical language . . . makes it clear that the legislature did

not intend for [there to be a] distinction between the two

statutes." Johnson v. Commonwealth, 5 Va. App. 529, 533, 365

S.E.2d 237, 239 (1988).

The Commonwealth argues that Bower's act equates to

intimidation because "under the circumstances, [Bower] imposed

such a degree of psychological or emotional pressure on a

vulnerable and susceptible victim as to cause that person to

submit to [his] advances." To support its argument, the

Commonwealth relies primarily on Samuel Clark v. Commonwealth,

30 Va. App. 406, 517 S.E.2d 260 (1999), and Bailey v.

Commonwealth, 82 Va. 107 (1886). These cases are substantially

different from the case at bar and clearly distinguishable.

In Samuel Clark, the victim's father was convicted of

aggravated sexual battery (Code § 18.2-67.3) and object sexual

3
The animate object sexual penetration statute is located
in article 7, the criminal sexual assault portion of Title 18.2,
along with the rape statute and others using identical language.
See Code §§ 18.2-67.3 (aggravated sexual battery), 18.2-67.4
(sexual battery).

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penetration (Code § 18.2-67.2) of his daughter. We held that

force and intimidation were proven in that case where the father

would lie on top of his daughter and continuously molest her

from age five through her teens. Because the molestation took

place so often and for so long, the victim did not realize the

conduct was improper until she learned about sexual abuse in

school. The victim did not confide in anyone or confront her

father because her father was her caregiver, he was in poor

health and she feared that other members of her family would

reject her if she accused him. The evidence showed that the

victim felt isolated, with no frame of reference for proper

parental conduct due to the life-long duration of the abuse.

This long-term course of conduct, combined with a finding of

actual force, amounted to emotional domination sufficient to

constitute intimidation.

We noted that the parental relationship in Samuel Clark was

a "highly relevant circumstance," but it was not the sole factor

relied on to prove intimidation. In conjunction with "more

force than that required to accomplish the unlawful touching

. . . [t]he paternal bond, along with the victim's age and

relative isolation from others, impeded her ability to resist

her father. She was vulnerable and susceptible to pressure from

her father." Samuel Clark, 30 Va. App. at 411, 517 S.E.2d at

262.

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 The Commonwealth also relies on the nineteenth century

case, Bailey. The Supreme Court noted, by dicta, an

intimidation factor in Bailey where the fourteen-year-old victim

saw her abusing stepfather as "her only protector and guardian."

The facts of Bailey, though, are significantly different from

the case at bar.

The stepfather physically restrained the victim in order to

defile her after she had refused his advances. He also

threatened to beat her if she told anyone. Actual force and

threat were, therefore, used to accomplish the crime, as opposed

to the imposition of psychological pressure or other independent

acts of intimidation.

The law in Virginia is clear that a finding of 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. See Melton Clark, 12 Va. App. at 1165, 408 S.E.2d

at 566. See also Sutton, 228 Va. at 663, 324 S.E.2d at 670;

Woodard, 27 Va. App. at 410, 499 S.E.2d at 559.

In the case at bar, there was no evidence, direct or

inferred, of any prior or contemporaneous act, communication or

course of conduct by Bower that would place his daughter in fear

of bodily harm. Even if a lower standard was applied of simply

showing "domination and control of her as to overcome her mind

and overbear her will," there was no evidence to sustain a

finding that this occurred.

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 The daughter testified they had a "good relationship" prior

to this incident. She never looked, spoke or otherwise made any

acknowledgment of Bower's presence or her cognizance of his

actions. There is no evidence in the record of any action of

Bower, or reaction by his daughter, that reflects "emotional

domination" or that she was in fear of bodily harm. While the

daughter testified she was afraid to tell anyone about the

incident, she did not testify that Bower accomplished the act

because she was in fear of bodily harm from him or that she was

emotionally dominated by him.

Neither Bailey nor Samuel Clark is analogous to this case.

Bailey involved both actual force and threats while Samuel Clark

involved force coupled with life-long abuse of the victim.

Neither case concerned intimidation as a separate and

independent act forming the sole basis for overcoming the

victim's will to place the victim in fear of bodily harm.

The record only indicates that the act was probably

accomplished by surprise and is devoid of any evidence

indicating that a differential in size or age was a factor or

that the parent-child relationship created cognizable

intimidation of the daughter causing her to submit to Bower.

"[F]ear of bodily harm . . . result[s] from the words or conduct

of the accused rather than the temperamental timidity of the

victim." Harris v. Commonwealth, 3 Va. App. 519, 521, 351

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S.E.2d 356, 357 (1986); see also Johnson, 5 Va. App. 529, 365

S.E.2d 237.

In effect, the Commonwealth argues that the fact of the

parent-child relationship and the fact that Bower was larger

than his daughter are sufficient, standing alone, to permit the

trial court to infer intimidation and convict Bower. We find no

support for interpreting the statute in that manner.

"[P]enal statutes must be strictly construed against the

Commonwealth and applied only in those cases clearly falling

within the language of the statute." Branch v. Commonwealth, 14

Va. App. 836, 839, 419 S.E.2d 422, 424 (1992). "Such statutes

cannot be extended by implication or construction, or be made to

embrace cases which are not within their letter and spirit."

Berry v. City of Chesapeake, 209 Va. 525, 526, 165 S.E.2d 291,

292 (1969); Price v. Commonwealth, 209 Va. 383, 385-86, 164

S.E.2d 676, 678 (1968).

"Where a statute is unambiguous, the
plain meaning is to be accepted without
resort to the rules of statutory
interpretation." Last v. Virginia State Bd.
of Med., 14 Va. App. 906, 910, 421 S.E.2d
201, 205 (1992). "'Courts are not permitted
to rewrite statutes. This is a legislative
function. The manifest intention of the
legislature, clearly disclosed by its
language, must be applied.'" Barr v. Town &
Country Properties, Inc., 182 Va. 560, 566,
29 S.E.2d 838, 841 (1944)). Accordingly, we
must "'take the words as written'" in [the
statute] and give them their plain meaning.
Adkins v. Commonwealth, 27 Va. App. 166,
169, 497 S.E.2d 896, 897 (1998) (quoting

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 Birdsong Peanut Co. v. Cowling, 8 Va. App.
274, 277, 381 S.E.2d 24, 26 (1989)).

Krampen v. Commonwealth, 29 Va. App. 163, 168, 510 S.E.2d 276,

278 (1999).

The General Assembly has established two distinct classes

of criminal acts where object sexual penetration is alleged

under Code § 18.2-67.2. In the class of victims under age

thirteen, no evidence of force, threat or intimidation is

required to be proved as an element of the crime. However, for

all other victims, the Commonwealth must prove beyond a

reasonable doubt that the act was accomplished against the will

of the victim by force, threat or intimidation.

We find no language in Code § 18.2-67.2 or other relevant

statutes that creates a subclass of victims over age twelve

where evidence of intimidation, force or threat is sufficiently

proved based solely on parentage or size differential. The

Commonwealth must prove beyond a reasonable doubt events or a

course of conduct that shows the victim's will has been overcome

by such dominion and control as to put the victim in fear of

bodily harm. The Commonwealth did not do so in this case.

While parental status can be a "highly relevant

circumstance" as we noted in Samuel Clark, it cannot be the only

circumstance. In a somewhat analogous setting, we declined to

infer intimidation under Code § 18.2-67.4 (sexual battery),

where the abuser of the minor victim was her teacher, based

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solely on the defendant's "position of trust as a teacher."

Melton Clark, 12 Va. App. at 1166, 408 S.E.2d at 566. Indeed,

in Melton Clark there was more evidence of communication and

opportunity to "overbear" the victim's will than in this case.

The statute creates no special class of perpetrators who

are parents and to which a different standard of proof applies.

The facts that the accused is the victim's parent, and may have

been physically larger than the victim, are not sufficient to

prove intimidation beyond a reasonable doubt where those are the

only factors in evidence. Such was the case here where no other

evidence of intimidation was introduced.

Accordingly, we hold that the evidence was insufficient to

convict Bower of violating Code § 18.2-67.2, and his conviction

is, therefore, reversed and dismissed.

Reversed and dismissed.

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