COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Coleman and Elder
Argued at Salem, Virginia
TIMOTHY HERREL, S/K/A
TIMOTHY JOSEPH HERREL
OPINION BY
v. Record No. 2138-97-3 JUDGE LARRY G. ELDER
DECEMBER 8, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
Perry W. Sarver, Judge
Michael C. Allen (Hairfield, Morton & Allen,
PLC, on brief), for appellant.
Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Timothy J. Herrel (appellant) appeals from his jury trial
conviction for attempted marital sexual assault in violation of
Code § 18.2-67.2:1. On appeal, he contends (1) his behavior did
not constitute marital sexual assault under Code § 18.2-67.2:1
because a finger is not an "object" within the meaning of that
code section, and (2) the evidence was insufficient to support
his conviction because it failed to prove the necessary intent.
For the reasons that follow, we affirm his conviction.
I.
FACTS
Appellant was indicted for "attempt[ing] to penetrate the
anus of his spouse with an object against her will by force or
the present threat of force" in violation of Code § 18.2-67.2:1.
A bill of particulars revealed that the object with which
appellant attempted to penetrate his wife's anus was appellant's
finger.
The evidence at trial, viewed in the light most favorable to
the Commonwealth, showed that, on July 7, 1996, appellant's wife
(victim) began sleeping in the spare bedroom of the marital
residence because she suspected appellant was seeing another
woman. Appellant left on a business trip on July 9, 1996. When
he returned home at about 7:30 p.m. on July 14, 1996, victim had
already dressed for bed and was in the spare bedroom folding
clothes. Appellant walked into the spare bedroom in the nude and
pushed victim face down onto the bed. He climbed on top of
victim, and when she flipped over, he grabbed her wrists. She
said, "No, stop, I'm not doing it, get off of me," and she tried
repeatedly to get away. Victim again told him "no" and to "[g]et
off of [her]." She "kept [her] legs crossed" as they continued
to struggle. Appellant then "flipped [her] over" and said, "If
you're not going to give me some that way[,] then give me some
this way." She saw a container of "KY Jelly from our master
bedroom . . . laying to [her] right . . . on the bed," and
appellant said, "We'll use some of this, . . . [and] it will
slide in real easy." Appellant then "[took] his finger and
wiggled it and was pushing it at [her] rectum" as he tried to
keep her pinned down with his knees. Victim "freaked out," used
a burst of "extra energy" to turn herself back over, and told him
again to "[g]et off of [her] and leave [her] alone."
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Victim told her mother, sister and friend about the incident
and showed them her bruised arms and wrists. Victim told her
mother that appellant "had tried to penetrate . . . her anus,"
and she told her sister he "tried to . . . put [his finger] up
her rectum." Victim reported the incident to the authorities in
September 1996, after she and appellant had separated and filed
for divorce.
Appellant moved to strike at the close of the Commonwealth's
evidence on the ground that it failed to prove "he attempted to
penetrate her anus." The trial court denied the motion.
Appellant testified and denied the incident.
The jury found appellant guilty of attempted marital sexual
assault and, after hearing evidence relevant to sentencing,
recommended a sentence of three months.
Appellant filed two post-trial motions. On April 7, 1997,
he moved to set aside the verdict on the ground that no evidence
proved he attempted to penetrate victim's anus, the same ground
asserted in his earlier motion to strike. The trial court denied
the motion. On June 6, 1997, the date set for sentencing,
appellant filed a second motion to set aside the verdict,
claiming that his finger was not an "object" within the meaning
of Code § 18.2-67.2:1. The trial court noted that the statute's
use of the term "any object" includes both animate and inanimate
objects in keeping with the ordinary dictionary meaning of the
term "object." It denied the motion and imposed sentence in
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accord with the jury's recommendation.
II.
ANALYSIS
A.
SCOPE OF "ANY OBJECT" AS USED IN CODE § 18.2-67.2:1
Appellant contends that the term, "any object," as used in
Code § 18.2-67.2:1, includes only inanimate objects and that his
alleged attempt to penetrate victim's anus with an animate
object, his finger, did not violate the statute. We disagree.
Code § 18.2-67.2:1(A) provides, in relevant part, that
[a]n accused shall be guilty of marital
sexual assault if (i) he . . . penetrates the
labia majora or anus of his . . . spouse with
any object other than for a bona fide medical
purpose . . . and (ii) such act is
accomplished against the spouse's will by
force or a present threat of force . . . .
Id. (emphasis added).
"Well established 'principles of statutory construction
require us to ascertain and give effect to the legislative
intent.'" Brooks v. Commonwealth, 19 Va. App. 563, 566, 454
S.E.2d 3, 4-5 (1995) (quoting Branch v. Commonwealth, 14 Va. App.
836, 839, 419 S.E.2d 422, 424 (1992)). Legislative intent is to
be determined by the words in the statute. See Marsh v. City of
Richmond, 234 Va. 4, 11, 360 S.E.2d 163, 167 (1987). Absent
ambiguity, "the manifest intent of the legislature clearly
expressed in its enactments should not be judicially thwarted
under the guise of statutory construction." Cregger v.
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Commonwealth, 25 Va. App. 87, 90, 486 S.E.2d 554, 555 (1997).
A court must construe the challenged statute "from its four
corners and not by singling out particular words or phrases."
Smith v. Commonwealth, 8 Va. App. 109, 113, 379 S.E.2d 374, 376
(1989). "If the several provisions of a statute suggest a
potential for conflict or inconsistency, we construe those
provisions so as to reconcile them and to give full effect to the
expressed legislative intent." Mejia v. Commonwealth, 23 Va.
App. 173, 176-77, 474 S.E.2d 866, 868 (1996) (en banc). "[A]
statute should never be construed so that it leads to absurd
results." Branch, 14 Va. App. at 839, 419 S.E.2d at 424.
In light of these principles, we hold that the challenged
language is not ambiguous. The statute in no way restricts the
meaning of the word "object" to connote only inanimate objects.
In fact, the legislature modified the word "object" with the word
"any." "Object" is defined as "a discrete visible or tangible
thing." Webster's Third New International Dictionary 1555
(1981). "Any" is defined as "one no matter what one:
every--used . . . to indicate one that is selected without
restriction or limitation of choice." Id. at 97. As we held in
Bell v. Commonwealth, 22 Va. App. 93, 468 S.E.2d 114 (1996), a
statute which proscribes sexual penetration with "'any object'
. . . addresses the universe of objects with which an accused may
not sexually penetrate a complaining witness." Id. at 99, 468
S.E.2d at 117 (interpreting Code § 18.2-67.2(A)). Therefore, the
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trial court did not err in holding that the ordinary meaning of
the term "any object" as used in Code § 18.2-67.2:1 includes both
animate and inanimate objects. 1
For these reasons, we reject appellant's contention that a
finger is not an "object" within the meaning of Code
§ 18.2-67.2:1.
B.
SUFFICIENCY OF EVIDENCE TO PROVE INTENT
Appellant also contends the evidence is insufficient to
prove that he intended to penetrate victim's anus with his
finger. We disagree.
When considering the sufficiency of the evidence on appeal
in a criminal case, we view the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. See Higginbotham v.
1
The statute we interpreted in Bell, Code § 18.2-67.2,
provides that "[a]n 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 . . . or . . . animal." (Emphases
added). That code section, as enacted in 1981, originally
referred only to "inanimate object sexual penetration." See 1981
Va. Acts ch. 397. In 1993, the legislature added animate objects
to the category of objects with which penetration was proscribed.
See 1993 Va. Acts ch. 549. It could have achieved this result
in either of two ways: first, as it did, by adding the phrase
"or animate" to expressly include both animate and inanimate
objects within the scope of "any object," or second, by removing
the word "inanimate," leaving the statute to proscribe
penetration with "any object," without limitation. We hold that
both statutory schemes define the same "universe of objects with
which an accused may not sexually penetrate a complaining
witness." See Bell, 22 Va. App. at 99, 468 S.E.2d at 117.
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Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). On
review, we do not substitute our own judgment for that of the
trier of fact. See Cable v. Commonwealth, 243 Va. 236, 239, 415
S.E.2d 218, 220 (1992). The judgment will not be set aside
unless it is plainly wrong or without supporting evidence. See
Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418
(1987).
Intent may, and usually must, be proven by circumstantial
evidence, see Servis v. Commonwealth, 6 Va. App. 507, 524, 371
S.E.2d 156, 165 (1988), such as a person's conduct and
statements. See Long v. Commonwealth, 8 Va. App. 194, 198, 379
S.E.2d 473, 476 (1989). "Circumstantial evidence is as competent
and is entitled to as much weight as direct evidence, provided it
is sufficiently convincing to exclude every reasonable hypothesis
except that of guilt." Coleman v. Commonwealth, 226 Va. 31, 53,
307 S.E.2d 864, 876 (1983). However, "the Commonwealth need only
exclude reasonable hypotheses of innocence that flow from the
evidence, not those that spring from the imagination of the
defendant." Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433
S.E.2d 27, 29 (1993). Whether a hypothesis of innocence is
reasonable is a question of fact. See Cantrell v. Commonwealth,
7 Va. App. 269, 290, 373 S.E.2d 328, 339 (1988).
Here, the circumstantial evidence proved beyond a reasonable
doubt that appellant tried to penetrate victim's anus with his
finger. After trying unsuccessfully, due to victim's struggling,
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to engage in vaginal intercourse with her, appellant turned
victim over on her stomach and said, "If you're not going to give
me some that way[,] then give me some this way." Victim saw a
container of KY Jelly on the bed beside her, and appellant said,
"We'll use some of this, . . . [and] it will slide in real easy."
Immediately thereafter, appellant "[took] his finger and wiggled
it and was pushing it at [her] rectum" as he tried to keep her
pinned down with his knees. Victim later told her sister that
appellant tried to "put [his finger] up her rectum." Based on
this evidence, the fact finder reasonably could infer that
appellant intended to put his finger in her anus and that he
attempted unsuccessfully to do so. On these facts, the evidence
was sufficient to support appellant's conviction for attempted
marital sexual assault.
The holding in Howard v. Commonwealth, 221 Va. 904, 275
S.E.2d 602 (1981), cited by appellant, is inapposite. In Howard,
the trial court ruled that the evidence was insufficient to prove
attempted sodomy. As the Virginia Supreme Court noted, "[t]he
trial court's ruling that the evidence was insufficient to prove
attempted sodomy constituted an acquittal of Howard on that
charge." Id. at 907, 275 S.E.2d at 604. Therefore, the
sufficiency of the evidence to prove attempted sodomy was not
before the Supreme Court on appeal. The ruling of the trial
court in Howard carries no precedential value in this Court.
In addition, that appellant also may have intended to engage
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in forcible anal intercourse with victim in violation of
subsection (A)(i) of the statute does not preclude a finding that
he intended first to penetrate her anus with his finger in
violation of subsection (A)(ii).
A person may commit a crime with more than
one purpose, and the fact that the act is
done with two or more specific objectives
does not mean that the Commonwealth has
failed to prove the specific intent to commit
the charged crime. . . . By proving that an
accused harbored two or more specific
criminal intents, the Commonwealth has
excluded every reasonable hypothesis of
"innocence."
Hughes v. Commonwealth, 18 Va. App. 510, 530-31, 446 S.E.2d 451,
463 (1994) (en banc) (Coleman, J., concurring). Under the facts
of this case, the evidence supports the finding by the trier of
fact that appellant intended to penetrate victim's anus with his
finger.
For these reasons, we affirm appellant's conviction.
Affirmed.
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