COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Annunziata
Argued at Norfolk, Virginia
SAMUEL DAN CLARK
OPINION BY
v. Record No. 0240-98-1 JUDGE JERE M. H. WILLIS, JR.
AUGUST 3, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
William F. Rutherford, Judge
Kimberly L. Shoemaker (Zoby & Broccoletti,
P.C., on brief), for appellant.
Kathleen B. Martin, Assistant Attorney
General (Mark L. Earley, Attorney General,
on brief), for appellee.
On appeal from his convictions of aggravated sexual
battery, in violation of Code § 18.2-67.3, and object sexual
penetration, in violation of Code § 18.2-67.2, Samuel Dan Clark
contends the evidence of intimidation was insufficient to
sustain the convictions. We disagree and affirm the judgment of
the trial court.
A jury convicted Clark of two counts of aggravated sexual
battery, in violation of Code § 18.2-67.3; taking indecent
liberties with a minor while in a custodial relationship, in
violation of Code § 18.2-370.1; animate object sexual
penetration, in violation of Code § 18.2-67.2; and sodomy, in
violation of Code § 18.2-67.1. Clark was sentenced to a total
of thirteen years imprisonment. This appeal involves one count
of aggravated sexual battery and the object sexual penetration
count, for which Clark was sentenced to six years imprisonment.
"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).
The victim is Clark's daughter. Her parents separated when
she was nine years old and in the fourth grade. She went
initially to live with her mother, but Clark obtained her
custody when he and her mother were divorced. When the victim
was in her late teens, she told her mother that Clark had been
abusing her sexually since she was five years old. She reported
that soon after she returned to Clark's home following the
divorce, he began touching her chest and vagina and performing
oral sodomy on her. She testified that she always pretended to
be asleep during these acts and that she never challenged or
questioned these acts until she was older.
I. AGGRAVATED SEXUAL BATTERY
Clark contends that the evidence fails to support his
conviction for the second count of aggravated sexual battery.
This count was based on conduct occurring between October 20,
1990, through October 20, 1995, embracing the time when the
victim was between thirteen and fifteen years of age. Clark
argues that the evidence did not prove that his conduct during
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this time frame was accomplished against the victim's will by
force, threat, or intimidation.
Code § 18.2-67.3 states, in relevant part:
A. An accused shall be guilty of
aggravated sexual battery if he or she
sexually abuses the complaining witness, and
* * * * * * *
2. [t]he act is 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 § 18.2-67.3.
Our standard of review is well settled.
When considering the sufficiency of the
evidence on appeal of a criminal conviction,
we must view all the evidence in the light
most favorable to the Commonwealth and
accord to the evidence all reasonable
inferences fairly deducible therefrom. The
jury's verdict will not be disturbed on
appeal unless it is plainly wrong or without
evidence to support it.
Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719,
721 (1988) (citations omitted).
The victim testified that Clark would lie on top of her at
night while touching her intimate parts. This conduct
constituted force and was more force than "that . . . required
to accomplish the unlawful touching." Johnson v. Commonwealth,
5 Va. App. 529, 534, 365 S.E.2d 237, 240 (1988). Moreover, the
evidence supported the finding that Clark accomplished his
conduct through intimidation. The victim's testimony supported
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the finding that he exercised "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
who, under the circumstances, is vulnerable and susceptible to
such pressure." Sutton v. Commonwealth, 228 Va. 654, 663, 324
S.E.2d 665, 670 (1985).
The victim testified that Clark began molesting her when
she was very young. Because he did this so often and for so
long, she did not realize his conduct was improper until she
learned about sexual abuse in a sex education class at school.
Even after she learned the conduct was wrong, she allowed it to
continue because she was unable to confront her father. He was
in poor health. For many years, he had been her primary
caregiver. She had always gone to him when she had problems,
because her mother was unreliable and was rarely accessible to
her. She thought that the other members of her family would
reject her if she accused her ailing father. She felt isolated,
with nowhere to turn. This testimony described circumstances of
emotional domination sufficient to constitute intimidation.
Clark argues that the paternal relationship is insufficient
to prove intimidation. In this case, however, it is a highly
relevant circumstance, which was properly considered by the
jury. See Sutton, 228 Va. at 663, 324 S.E.2d at 670. The
paternal bond, along with the victim's age and relative
isolation from others, impeded her ability to resist her father.
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She was vulnerable and susceptible to pressure from her father.
Those circumstances support the finding that her will was
overcome. See Bailey v. Commonwealth, 82 Va. 107, 112 (1886).
The victim's description of the force employed by Clark and
the intimidating circumstances under which he sexually abused
her sufficiently support the finding that the sexual abuse was
accomplished against her will.
II. OBJECT SEXUAL PENETRATION
Clark contends that the evidence was insufficient to
support his conviction for object sexual penetration.
Code § 18.2-67.2(A) states, in relevant part:
An accused shall be guilty of . . .
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 . . ., and
* * * * * * *
2. [t]he 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.
Code § 18.2-67.2(A). Clark contends that no evidence proves
that he accomplished sexual penetration by force, threat or
intimidation. However, he did not address this issue before the
trial court in his motion to strike the object sexual
penetration count. His counsel argued only that this count
should be stricken because no evidence proved the absence of a
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marital relationship between the victim and Clark and that the
evidence failed to support the wording of the indictment. An
objection made at trial on one ground does not preserve for
appeal a contention on a different ground. See Floyd v.
Commonwealth, 219 Va. 575, 584, 249 S.E.2d 171, 176 (1978);
Jacques v. Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630,
631 (1991). Because Clark did not raise this issue with
specificity in the trial court, we will not address it on
appeal. See Rule 5A:18.
The judgment of the trial court is affirmed.
Affirmed.
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