Tuesday 18th
August, 1998.
Roger Lee Jett, Appellant,
against Record No. 1698-97-4
Circuit Court Nos. CR96-343 and CR96-344
Commonwealth of Virginia, Appellee.
Upon a Petition for Rehearing En Banc
Before Chief Judge Fitzpatrick, Judges Benton, Coleman, Willis,
Elder, Bray, Annunziata, Overton, Bumgardner and Senior Judge Baker*
On July 16, 1998 came the appellant, by court-appointed
counsel, and filed a petition praying that the Court set aside the
judgment rendered herein on July 14, 1998, and grant a rehearing en
banc thereof.
On consideration whereof, the petition for rehearing en banc
is granted, the mandate entered herein on July 14, 1998 is stayed
pending the decision of the Court en banc, and the appeal is
reinstated on the docket of this Court.
The parties shall file briefs in compliance with Rule 5A:35.
It is further ordered that the appellant shall file with the clerk of
this Court ten additional copies of the appendix previously filed in
this case.
____________________
*Judge Baker participated in the decision of this petition
for rehearing en banc prior to the effective date of his retirement on
July 31, 1998 and thereafter by his designation as senior judge
pursuant to Code § 17-116.01.
A Copy,
Teste:
Cynthia L. McCoy, Clerk
By:
Deputy Clerk
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Benton and
Senior Judge Duff
Argued at Alexandria, Virginia
ROGER LEE JETT
OPINION BY
v. Record No. 1698-97-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
JULY 14, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SHENANDOAH COUNTY
Perry W. Sarver, Judge Designate
Elwood Earl Sanders, Jr., Director
Capital/Appellate Services (Jay K. Wilk,
Assistant Public Defender; Public Defender
Commission, on briefs), for appellant.
Daniel J. Munroe, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Roger Lee Jett (appellant) was convicted in a jury trial of
object sexual penetration in violation of Code § 18.2-67.2 and
sodomy in violation of Code § 18.2-67.1. Appellant contends the
trial court erred in denying his motion to strike the object
sexual penetration charge because the victim's testimony was
legally insufficient to prove penetration. For the following
reasons, we affirm the conviction.
I.
Viewed in the light most favorable to the Commonwealth, see
Phillips v. Commonwealth, 25 Va. App. 144, 155, 487 S.E.2d 235,
240-41 (1997), the evidence adduced at trial established that
appellant was the nine-year-old victim's uncle by marriage, and
he lived with the victim and her mother. The victim testified
that when she was alone with appellant he "taught [her] to use a
hairbrush . . . to make [herself] feel good." She further
testified as follows:
Q: And how did you . . . just describe for
the ladies and gentlemen of the jury what you
did with that brush.
A: I would lay it on the outside of my
pookie [a term the victim used for her
vagina], and rub it.
Q: Around, back and forth, or what?
A: Back and forth.
The victim also testified that appellant told her to do the same
things with her Barbie doll, and when he tucked her in at night
he would sometimes use his finger or his tongue and "rub my
pookie back and forth." Furthermore, the victim complained that
her vaginal area "kept on hurting." The victim's mother
described her daughter's vaginal problem as "a nightly routine of
screaming and crying, and sitting in sitz baths in the tub
because her [vaginal area] hurt." The mother said she would
examine the victim's vaginal area and "[i]t would be red and
rashed. A lot of times, the clitoris would be very swollen."
At trial appellant moved to strike the charges and later
renewed this motion on the ground that the Commonwealth adduced
insufficient evidence of penetration of the labia majora. The
trial court denied the motion, finding that "we've got a jury
question, and I think we can certainly submit the evidence to the
jury, on both charges." The jury convicted appellant, and he was
sentenced to ten years imprisonment for each offense.
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II.
Appellant contends the evidence of penetration related to
the violation of Code § 18.2-67.2 was in equipoise and therefore
legally insufficient to sustain the conviction of object sexual
penetration. 1 We disagree.
"On review, this Court does not substitute its judgment for
that of the trier of fact. Instead, the jury's verdict will not
be set aside unless it appears that it is plainly wrong or
without supporting evidence." Canipe v. Commonwealth, 25 Va.
App. 629, 644, 491 S.E.2d 747, 754 (1997).
1
At oral argument, appellant raised for the first time the
contention that the Commonwealth failed to prove penetration with
an inanimate object when the testimony indicated that appellant's
finger and tongue were also possible sources of the vaginal and
clitoral irritation. However, at trial and in his petition for
appeal, appellant "failed to specifically assert that the
evidence was insufficient to prove sexual penetration with an
inanimate rather than an animate object, as required to preserve
the issue for appeal." Marshall v. Commonwealth, 26 Va. App.
627, 637, 496 S.E.2d 120, 125 (1998) (Rule 5A:18 barred review of
inanimate object penetration conviction that constituted
underlying felony for first degree murder conviction). "Pursuant
to Rule 5A:18, this Court will not consider trial court error as
a basis for reversal where no timely objection was made." Id. at
636, 496 S.E.2d at 125. The record reveals no good cause for
appellant's failure to object in the trial court, nor is it
necessary for us to consider the issue in order to attain justice
in the case. Furthermore, "Rule 5A:12(c) provides that '[o]nly
questions presented in the petition for appeal will be noticed by
the Court of Appeals.'" Perez v. Commonwealth, 25 Va. App. 137,
139 n.2, 486 S.E.2d 578, 579 n.2 (1997). Consequently the
question presented on appeal is limited to the following:
"Whether the trial court erred in denying the motion to strike as
to the object penetration when the evidence in favor and against
penetration in the Commonwealth's direct testimony of the victim
is at equipoise and thus legally insufficient to prove
penetration."
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Code § 18.2-67.2 provides:
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 . . . .
"Penetration may be proved by circumstantial evidence and is not
dependent on direct testimony from the victim that penetration
occurred." Morrison v. Commonwealth, 10 Va. App. 300, 301, 391
S.E.2d 612, 612 (1990) (although twelve-year-old victim was not
asked whether penetration occurred, her testimony regarding
circumstances surrounding incident and medical evidence of
penetration were sufficient to prove rape). "[C]ircumstantial
evidence may be more compelling and persuasive than direct
evidence, and when convincing, it is entitled to as much weight
as direct evidence." Bridgeman v. Commonwealth, 3 Va. App. 523,
526, 351 S.E.2d 598, 600 (1986). For the purposes of Code
§ 18.2-67.2, as well as the statutes prohibiting rape and
forcible sodomy, penetration "'need be only slight.'" Horton v.
Commonwealth, ___ Va. ___, ___, 499 S.E.2d 258, 261 (1998)
(citation omitted) (addressing forcible sodomy under Code
§ 18.2-67.1). See Love v. Commonwealth, 18 Va. App. 84, 89, 441
S.E.2d 709, 712 (1994) ("the legislature intended to mandate the
same degree of penetration for all of these offenses").
The anatomical structure of the female genitalia is
significant in relation to the element of penetration of the
labia majora at issue in this case.
The female external genitalia, starting with
the outermost parts, are: "the mons pubis,
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the labia majora et minora pudendi, the
clitoris, vestibule, vestibular bulb and the
greater vestibular glands. The term 'vulva'
. . . includes all these parts."
Horton, ___ Va. at ___, 499 S.E.2d at 261 (quoting Henry Gray,
Anatomy, Descriptive and Surgical 1446 (Peter L. Williams et al
eds., 37th ed. 1989)). The Supreme Court has held as follows:
"[P]enetration of any portion of the vulva,
which encompasses the external parts of the
female sex organs considered as a whole and
includes, beginning with the outermost parts,
the labia majora, labia minora, hymen,
vaginal opening and vagina . . . is
sufficient to establish the element of
penetration."
Moore v. Commonwealth, 254 Va. 184, 190, 491 S.E.2d 739, 742
(1997) (quoting Love v. Commonwealth, 18 Va. App. 84, 88, 441
S.E.2d 709, 712 (1994)). "Penetration of the vaginal
opening . . . clearly [is] not required." Love, 18 Va. App. at
88, 441 S.E.2d at 712. According to the anatomical description,
the clitoris lies within the labia majora; therefore, evidence of
penetration or stimulation of the clitoris is sufficient to
establish penetration of the labia majora under Code § 18.2-67.2.
Cf. Horton, ___Va. at ___, 499 S.E.2d at 261-62 (evidence of
oral stimulation of the vulva or clitoris constituted penetration
for the purpose of proving forcible sodomy under Code
§ 18.2-67.1).
In the instant case, although the victim's testimony that
appellant taught her to rub the hairbrush or the Barbie doll "on
the outside of my pookie" did not establish penetration, the
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Commonwealth also introduced circumstantial evidence from which
the jury could reasonably conclude penetration had occurred. The
child testified that her vagina frequently hurt. Her mother
testified that the victim's vaginal area was often red, rashed,
and her "clitoris would be very swollen." On a nightly basis,
the child would be "screaming and crying, and sitting in sitz
baths in the tub because her pookie hurt." The problem was so
severe that the victim and her mother sought medical attention
"many times." The evidence of the victim's pain and swollen
clitoris established the element of penetration. Therefore, we
cannot hold that the verdict was unsupported by the evidence or
plainly wrong.
Appellant likens the instant facts to those in Moore, where
the victim testified that the defendant put his penis "on" her
vagina, and the Supreme Court overturned the conviction for
insufficient evidence of the essential element of penetration.
See Moore, 254 Va. at 189, 491 S.E.2d at 741 (holding proof of
penetration is legally insufficient if the evidence is "in a
state of equipoise" based on the Commonwealth's case-in-chief).
Appellant contends in the absence of medical or forensic evidence
the mere complaint of vaginal discomfort by the victim is
insufficient to sustain his conviction.
Appellant's reliance on Moore is misplaced, because in Moore
the victim, who provided the only evidence of penetration, gave
"two different accounts of the essential facts relating to"
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penetration. Id. at 189, 491 S.E.2d at 742. She testified that
the defendant's penis had been "in" her vagina interchangeably
with her testimony that it had been "on" her vagina. Id. at 189,
491 S.E.2d at 741-42. Furthermore, the minor victim in Moore was
unaware of the "intricate structure of her sexual organ," and it
was "clear from the evidence that when she referred to her
'vagina,' she was describing the external part of that portion of
her anatomy." Id. at 190, 491 S.E.2d at 742. In light of the
victim's equivocal testimony and without medical, forensic, or
other corroborating evidence to indicate penetration of the
victim's genitalia, the Supreme Court reversed the conviction in
Moore.
The instant victim's testimony resembled that of the victim
in Moore, because she said "on the outside of my pookie."
However, here, unlike Moore, the Commonwealth presented
additional evidence of penetration, which was uncontradicted
within its case-in-chief. The victim's testimony describing the
use of the hairbrush and the doll and her mother's testimony that
the victim required repeated treatment and medical attention for
her vaginal pain supported the reasonable inference that
penetration had occurred. Testimony from the victim that the
hairbrush or doll had penetrated her labia majora was unnecessary
in light of her mother's direct and anatomically specific
testimony that the victim's clitoris was swollen. The
combination of direct and indirect evidence of penetration
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presented here is distinguishable from the equivocal testimony of
the child victim in Moore, which was the sole evidence of
penetration in that case. The instant evidence was not
insufficient as a matter of law, and the jury could conclude
beyond a reasonable doubt that penetration occurred.
For the foregoing reasons, the conviction is affirmed.
Affirmed.
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Benton, J., dissenting.
The conviction in this case was the result of an indictment
that charged "Roger Lee Jett did unlawfully and feloniously
penetrate the labia majora, of a female child under the age of
thirteen, with an inanimate object, in violation of [Code
§] 18.2-67.2." At the conclusion of the Commonwealth's
case-in-chief, the following discussion occurred:
[DEFENSE COUNSEL]: . . . I make a motion to
strike, as to both charges. I didn't hear
any testimony or other evidence of any
penetration.
THE COURT: Of what?
[DEFENSE COUNSEL]: Penetration of
the . . . [.] Which is a requirement of
these offenses. And also I would move to
strike on the ground that the Commonwealth
has not . . . in the light most favorable to
the Commonwealth, has not made out a prima
facie case for either of these offenses.
THE COURT: All right.
[PROSECUTOR]: Your Honor, with respect to
the prima facie case, I think there is more
than a prima facie case made, Your Honor.
There is direct testimony as to the oral sex
that took place--
THE COURT: You don't have to address the
sodomy. I don't think [defense counsel]
will. But on the penetration, I think, maybe
that is the one you need to--
[PROSECUTOR]: Your Honor, I think that is
. . . [.] And I understand where [defense
counsel] is coming from, but I think it is a
question . . . [.] The testimony is
that--from the mother as well as the
daughter--that the hairbrush was used--and
this is testimony from the daughter--that the
hairbrush was used to massage the top of her
vaginal area, for her to have an orgasm. Or
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have her feel good, I think was what her
testimony was.
The purpose of that evidence, and the use of
the hairbrush, requires some type of
penetration to get to that very part of the
vaginal area, to have an orgasm or
penetration, or to feel good. . . .
The trial judge denied the motion to strike the evidence. At the
conclusion of all the evidence, defense counsel renewed the
motion to strike the evidence for the reasons stated in the
earlier motion. The trial judge again denied the motion. Thus,
I would hold that Jett is not barred from arguing that the
Commonwealth failed to prove penetration by an inanimate object,
as charged in the indictment.
The evidence failed to prove beyond a reasonable doubt that
the child was penetrated by an inanimate object. The evidence
concerning the child's irritated vaginal area is equally
explained by Jett's use of his tongue on the child's vaginal
area. However, he was convicted of sodomy at this trial for that
offense. A reasonable inference that the child's discomfort was
caused by either Jett's tongue or the child's use of the
inanimate object "on the outside" of her vaginal area does not
suffice to prove beyond a reasonable doubt that the child was
penetrated by an inanimate object. See Moore v. Commonwealth,
254 Va. 184, 491 S.E.2d 739 (1997).
Because the evidence was insufficient to prove beyond a
reasonable doubt penetration by an inanimate object, I would
reverse the conviction.
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