COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Annunziata and Senior Judge Cole
Argued at Richmond, Virginia
WAYNE EARL BELL
v. Record No. 0190-95-2 OPINION BY
JUDGE ROSEMARIE ANNUNZIATA
COMMONWEALTH OF VIRGINIA MARCH 19, 1996
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Walter W. Stout, III, Judge
Aubrey F. Hammond, Jr., for appellant.
Richard Rizk, Assistant Attorney General
(James S. Gilmore, III, Attorney General;
Robert B. Beasley, Jr., Assistant Attorney
General, on brief), for appellee.
Following a jury trial, the appellant, Wayne Earl Bell
("Bell"), was convicted of two counts of robbery, two counts of
using a firearm in the commission of robbery, abduction,
abduction with intent to defile, and animate/inanimate object
sexual penetration. Pursuant to the jury's recommendation, the
court sentenced Bell to sixty-six years imprisonment. Bell
appeals, contending (1) the conviction for abduction with intent
to defile should have been merged with the conviction for animate
object sexual penetration; (2) the term "animate object sexual
penetration" in Code § 18.2-67.2 excludes digital penetration of
the vagina; and (3) the evidence was insufficient to support the
jury's verdicts. We disagree and affirm the convictions.
I
A defendant may be convicted of abduction in addition to
"another crime involving restraint of the victim, both growing
out of a continuing course of conduct, . . . only when the
detention committed in the act of abduction is separate and apart
from, and not merely incidental to, the restraint employed in the
commission of the other crime." Brown v. Commonwealth, 230 Va.
310, 314, 337 S.E.2d 711, 713-14 (1985).
When considering the sufficiency of the evidence on appeal
in a criminal case, this Court views the evidence in a light most
favorable to the Commonwealth. Higginbotham v. Commonwealth, 216
Va. 349, 352, 218 S.E.2d 534, 537 (1975). On review, this Court
does not substitute its own judgment for that of the trier of
fact. Cable v. Commonwealth, 243 Va. 236, 239, 415 S.E.2d 218,
220 (1992). Instead, the jury's verdict will not be set aside
unless it appears that it is plainly wrong or without supporting
evidence. Code § 8.01-680; Traverso v. Commonwealth, 6 Va. App.
172, 176, 366 S.E.2d 719, 721 (1988).
Here, the jury's finding of an abduction separate and apart
from both the robbery and the sexual assault is not plainly wrong
and is supported by the evidence. On July 17, 1994 at
approximately 3:30 a.m., Carter Brooks ("Brooks") and Monica
Stanley ("Stanley") left a friend's second story apartment in
Richmond. As Brooks and Stanley crossed the well-lit street,
moving toward Brooks' car, Bell and Robert L. Terry ("Terry")
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walked toward them, reaching the car just before they did. After
placing a gun on top of the car, Bell ordered Brooks and Stanley
to empty their pockets and turn over their jewelry. Brooks and
Stanley complied. Brooks then pulled his pockets out to
demonstrate his compliance.
When Brooks and Stanley attempted to return to their
friend's apartment, Bell pointed the gun at them and ordered them
back. The two returned, having pulled out their pockets to
demonstrate that they possessed nothing else. Bell then grabbed
Stanley's wrist and noticed a bracelet she had not relinquished.
After Stanley indicated the bracelet was worth only eleven
dollars, Bell dropped her wrist and ignored the bracelet.
The assailants then pulled Brooks and Stanley around the
side of the car and ordered them to lie face down on the
sidewalk. Bell began to pat down Stanley's thighs, inner legs,
and buttocks and repeatedly asked her to roll over. The victims
pleaded with Bell to stop, offering him the keys to Brooks' car
and the stereo inside. Bell put the gun to Brooks' head, pushed
him back, and ordered Stanley to unzip her pants.
Bell then unzipped Stanley's pants, placed his hands inside
her underwear, and inserted his fingers inside her vagina,
against her will, for a period of thirty seconds to a minute.
The assailants then left.
Bell contends that when he ordered Stanley to lie down on
the sidewalk and began "patting" down her body, he was continuing
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the robbery and searching for more property. He argues that he
sexually assaulted Stanley from that position. In other words,
Bell contends that the only restraint he exerted was incidental
to either the robbery or the sexual assault.
However, the jury could reasonably have found from the
evidence that Bell's actions in pulling Stanley around the car
and ordering her to lie down were acts of restraint and
asportation separate and apart from the restraint inherent in
either the sexual assault or the robbery. See Cardwell v.
Commonwealth, 248 Va. 501, 511, 450 S.E.2d 146, 152 (1994), cert.
denied, 115 S. Ct. 1826 (1995); Hoke v. Commonwealth, 237 Va.
303, 311, 377 S.E.2d 595, 600, cert. denied, 491 U.S. 910 (1989);
Phoung v. Commonwealth, 15 Va. App. 457, 462, 424 S.E.2d 712,
714-15 (1992). Furthermore, the jury could reasonably have
concluded that Bell moved Stanley to avoid detection. See Coram
v. Commonwealth, 3 Va. App. 623, 626, 352 S.E.2d 532, 533-34
(1987). Bell knew Stanley had come from across the street prior
to the robbery. Moving her around the car and ordering her to
the ground took Stanley out of the line of sight from where she
had come. Indeed, the victims' friend testified that he
witnessed the crimes, except the object penetration, from the
window of the apartment. His view of the sexual assault was
obstructed by the car.
II
Bell argues that he cannot be convicted of "animate object
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sexual penetration" under Code § 18.2-67.2 because his finger is
not an "animate" object. Bell's argument is without merit.
Code Section 18.2-67.2, entitled "Object Sexual
Penetration," states, in part, 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.
Bell contends that "animate" refers only to acts committed
by or with an animal. Where a statute's language is unambiguous,
courts "must take the words as written and give them their plain
meaning." Williams v. Commonwealth, 12 Va. App. 912, 920-21, 407
S.E.2d 319, 325 (1991) (quoting Diggs v. Commonwealth, 6 Va. App.
300, 302, 369 S.E.2d 199, 200 (1988)). A word's meaning takes
color and expression for the purport of the entire phrase from
which it is taken; meaning must be taken in context. Turner v.
Commonwealth, 226 Va. 456, 460, 309 S.E.2d 337, 339 (1983).
"Animate" means "possessing life; living." The American
Heritage Dictionary 111 (2d College Ed. 1982). A finger is an
animate object. Furthermore, contrary to Bell's contention,
"animate" penetration is not limited to penetration by an animal
because the statute specifically and separately addresses that
crime.
Finally, the statute does not require the Commonwealth to
prove which objects are animate and which are inanimate. As the
Commonwealth argues, the statute makes it a crime to sexually
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penetrate a complaining witness with "any object." The statute
prohibits inanimate or animate object sexual penetration. The
statute thus addresses the universe of objects with which an
accused may not sexually penetrate a complaining witness.
III
Finally, Bell argues that the evidence was insufficient to
support any of his convictions. Bell's argument is based
primarily on inconsistent reports of what Bell was wearing at the
time, the fact that the victims were tired when they identified
Bell and did so only after seeing their property at the police
station and Bell in handcuffs, and hearing testimony that Terry's
co-conspirator may have been named "James." 1
The credibility of witnesses and the weight accorded their
testimony are matters solely for the trier of fact. Barker v.
Commonwealth, 230 Va. 370, 373, 337 S.E.2d 729, 732 (1985).
Here, the evidence was sufficient. Both Brooks and Stanley
identified Bell as the assailant. Any inconsistency between the
testimony and the initial description of the clothing worn by
Bell and Terry was not substantial and, in any event, was
considered by the jury. The co-conspirators were distinguished
in terms of their build, clothing, and Terry's hair style. The
jury also had the opportunity to evaluate Terry's videotaped
interview, which was conducted on the morning of the arrest by
1
Bell does not challenge the admissibility of the
victims' identification; he challenges only the sufficiency of
the evidence.
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the police, and to evaluate any inconsistencies between the
statements he made then and his testimony at trial incriminating
Bell.
Finding no error in the decision of the trial court, Bell's
convictions are affirmed.
Affirmed.
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