Farhoumand v. Commonwealth

PRESENT: All the Justices

SAMIR ALLEN FARHOUMAND
OPINION BY
v. Record No. 140012 JUSTICE DONALD W. LEMONS
October 31, 2014
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, we consider whether the term "expose," as

used in Code § 18.2-370, includes tactile contact or is

limited to situations where "sexual or genital parts" are

"exposed" to sight. We also consider whether the evidence is

sufficient to prove beyond a reasonable doubt that Samir Allen

Farhoumand ("Farhoumand") exposed his genitalia in violation

of Code § 18.2-370(A)(1).

I. Proceedings Below

In January 2012, S.F., a minor child, told his family he

had been sexually abused over the course of several years by

his older cousin, Samir Farhoumand. On May 21, 2012,

Farhoumand was indicted in the Circuit Court of Fairfax County

("trial court") on four counts of "expos[ing] his sexual or

genital parts" to a child under fifteen years of age in

violation of Code § 18.2-370(A)(1). The indictments covered a

period of two years, divided into four consecutive time
periods, with a single act of exposure charged in each

indictment. 1

A trial commenced on August 27, 2012, before the

Honorable Randy I. Bellows, Circuit Judge for Fairfax County,

without a jury. At the close of the Commonwealth's evidence,

the defense moved to strike all four indictments. The trial

court dismissed the first indictment, but found there was

sufficient evidence to support the remaining three

indictments, and denied the motion to strike as to those

counts.

After presenting its evidence, the defense moved to

strike the remaining three indictments. The trial court

denied the second motion to strike, and found Farhoumand

guilty of the remaining three counts of "expos[ing] his . . .

sexual or genital parts" to a minor child in violation of Code

§ 18.2-370(A)(1). The trial court relied, in part, upon the

unpublished decision of the Court of Appeals of Virginia in

Mason v. Commonwealth, Record No. 0309-97-2, slip op. at 4

(November 10, 1998)(en banc), which held: "[e]xposure means

not only to 'lay open to view' but also to 'lay open to feel

or to touch.'"

1
Indictment 1 –"on or between" Sept. 3, 2009 and Dec.
31, 2009; Indictment 2 – "on or between" Jan. 1, 2010 and
Sept. 3, 2010; Indictment 3 – "on or between" Sept. 4, 2010
and Dec. 31, 2010; Indictment 4 – "on or between" Jan. 1, 2011
and Sept. 3, 2011.

2
 On November 15, 2012, Farhoumand argued two motions to

set aside the verdict, claiming that the trial court had

applied an improper definition of the term "expose," and that

the evidence failed to establish with requisite specificity

whether any particular act of exposure occurred within the

time frames of the individual indictments. The trial court

denied both motions. The trial court sentenced Farhoumand to

concurrent terms of 10 years imprisonment with 6 years

suspended on each of the three counts, with active probation

for ten years from the date of the defendant's release from

prison.

Farhoumand appealed his convictions to the Court of

Appeals, which affirmed the trial court's judgment. In an

unpublished opinion, the Court of Appeals held that there is

no compelling reason to conclude that the
display of nudity must be limited to a
visual display. Indeed, if exposure is
defined as "make known" or "lay bare,"
such a definition encompasses a tactile
exposure as well as visual.

. . . .

We find the reasoning in Mason
persuasive, in that "expose" means not
only to lay bare to view, but to feel or
touch. . . . We conclude that because
appellant "made known" his bare penis to
the victim's touch, he physically and
tactilely exposed his penis to the victim.

3
Farhoumand v. Commonwealth, Record No. 2087-12-4, 2013 Va.

App. LEXIS 353, at *6-7 (Dec. 3, 2013).

Farhoumand appealed the judgment of the Court of Appeals

to this Court, and we awarded an appeal on the following

assignments of error:

1. The Court of Appeals erred in holding that
"exposure" is proven where genitalia is felt but
not seen and in failing to dismiss the indictments
where the evidence did not prove that his
genitalia was "exposed" to sight.

2. The Court of Appeals erred in holding that the
evidence was sufficient to sustain the defendant's
convictions whether "exposure" is proven where
genitalia is seen or felt.

II. Meaning of "Expose" in Code § 18.2-370

Whether the term "expose," as used in Code § 18.2-370, is

limited to visual exposure, or includes tactile exposure, is a

question of statutory interpretation reviewed de novo. David

v. David, 287 Va. 231, 237, 754 S.E.2d 285, 289 (2014).

Code § 18.2-370(A)(1) provides, in relevant part, that:

Any person 18 years of age or over, who,
with lascivious intent, knowingly and
intentionally . . . [e]xpose[s] his or her
sexual or genital parts to any child
[under the age of 15 years] to whom such
person is not legally married or
propose[s] that any such child expose his
or her sexual or genital parts to such
person [is guilty of a Class 5 felony.]

A. Plain Meaning

4
 We construe statutes to "ascertain and give effect to the

intention" of the General Assembly. Rutter v. Oakwood Living

Ctrs. of Va., Inc., 282 Va. 4, 9, 710 S.E.2d 460, 462 (2011)

(internal quotation marks omitted). Because the General

Assembly's intent "is usually self-evident from the statutory

language," we apply the plain meaning of the words used in the

statute. Id. (citation and internal quotation marks omitted);

see also Boynton v. Kilgore, 271 Va. 220, 227, 623 S.E.2d 922,

925-26 (2006).

Webster's Third New International Dictionary 802 (1993)

defines expose as "to lay open to view" or "lay bare." It

also offers the definitions to "make known" or "set forth,"

with the qualifying example: "[E]ach had started exposing his

views." The Webster's New College Dictionary 252 (3d ed.

2008), defines "expose" as "to lay bare or uncover." Merriam-

Webster's Collegiate Dictionary 441 (11th ed. 2003), defines

"expose" as "caus[ing] to be visible or open to view." In

The American Heritage Dictionary of the English Language 625

(5th ed. 2011), "expose" is defined simply as "to make

visible." Each of these definitions supports our conclusion

that, in the context of Code § 18.2-370, "expose"

unambiguously means revealing one's genitalia to sight.

B. Legislative History

5
 The legislative history of Code § 18.2-370 further

supports our conclusion that the General Assembly intended

exposure to be limited to instances of visual display.

Subsection 2 of Code § 18.2-370(A) previously criminalized

fondling. It read:

Any person eighteen years of age or over,
who, with lascivious intent, shall
knowingly and intentionally . . . . [i]n
any manner fondle or feel, or attempt to
fondle or feel, the sexual or genital part
of any child, or the breast of any such
female child . . . . shall be guilty of a
Class 6 felony.

Former Code § 18.2-370(A)(Cum. Supp. 1980). However, in 1981,

the General Assembly repealed Subsection 2 and re-codified its

provisions in two closely related statutes: Code §§ 18.2-67.3

and 18.2-67.4. 1981 Acts ch. 397.

Subsection (A)(4)(a) of Code § 18.2-67.3, Virginia's

aggravated sexual battery statute, prohibits "sexually

abus[ing] the complaining witness [if] . . . [t]he act is

accomplished against the will of the complaining witness by

force, threat or intimidation, and [t]he complaining witness

is at least 13 but less than 15 years of age." Code § 18.2-

67.4(A) provides: "An accused is guilty of sexual battery if

he sexually abuses, as defined in § 18.2-67.10, (i) the

complaining witness against the will of the complaining

witness, by force, threat, intimidation, or ruse . . . ." In

6
turn, Code § 18.2-67.10 defines "sexual abuse," in pertinent

part, as:

an act committed with the intent to
sexually molest, arouse, or gratify any
person, where:
a. The accused intentionally touches
the complaining witness's intimate parts
or material directly covering such
intimate parts; [or]
b. The accused forces the complaining
witness to touch the accused's, the
witness's own, or another person's
intimate parts or material directly
covering such intimate parts.

(Emphasis added.) Additionally, in 2007, the General Assembly

enacted Code § 18.2-67.4:2, which provides that an accused is

guilty of sexual abuse of a child under 15 if he "with

lascivious intent, commits an act of sexual abuse, as defined

in § 18.2-67.10, with any child 13 years of age or older but

under 15 years of age." 2007 Acts ch. 463.

Because the General Assembly specifically removed

Subsection 2 from Code § 18.2-370(A) and re-codified it as

Code §§ 18.2-67.3, 18.2-67.4 and 18.2-67.10, and as recently

as 2007 enacted Code § 18.2-67.4:2, we conclude that the

General Assembly did not intend for Code § 18.2-370(A) to

continue to criminalize fondling, or situations where the

accused forces the complaining witness to touch the accused's

genitalia. The interpretation given by the Court of Appeals

renders at least one of these statutes superfluous and ignores

7
the General Assembly's specific act of segregating the crime

of fondling/molestation from the crime of taking indecent

liberties with minors. Therefore, the Court of Appeals erred

by holding that Code § 18.2-370(A) proscribes the same conduct

as Code §§ 18.2-67.3, 18.2-67.4, 18.2-67.4:2 and 18.2-67.10.

C. Precedent

In Noblett v. Commonwealth, 194 Va. 241, 247, 72 S.E.2d

241, 244 (1952), we held that, under the common law, indecent

exposure required proof that the defendant's private parts

were "likely to have been seen by persons using the street."

Similarly, in Wicks v. City of Charlottesville, 215 Va. 274,

276, 208 S.E.2d 752, 755 (1974), we construed a

Charlottesville City Code provision making it illegal to

indecently "expose" oneself as proscribing "an intentional and

indecent exposure in a public place where it is likely to be

seen, whether actually seen by one or several persons."

However, we have never specifically addressed whether the

meaning of the word "expose," within the context of Code §

18.2-370(A)(1), requires the possibility of a visual sighting.

The Court of Appeals has discussed the meaning of

"expose" in several recent published cases. In Siquina v.

Commonwealth, 28 Va. App. 694, 697-99, 508 S.E.2d 350, 352-53

(1998), the Court of Appeals held that "[Code § 18.2-370]

proscribes the intentional display by an adult, with

8
lascivious intent, of his or her genitals in the presence of a

child where a reasonable probability exists that they might be

seen by that child, regardless of the child's actual

perception of such a display." In affirming the defendant's

conviction in that case, the Court of Appeals concluded that

the victim had a reasonable probability of seeing the

defendant's genitalia when the two were in a bathroom together

and the defendant's "pants and underwear were pulled down to

his feet." Id.

In Moses v. Commonwealth, 45 Va. App. 357, 611 S.E.2d 607

(2005), the Court of Appeals, sitting en banc, addressed the

difference between "display" and "expose" as used in Code §

18.2-387. 2 It held that:

Unless the word "display" is
superfluous, it must mean something
different from "exposure." If "exposure"
can only mean some degree of nudity, then
"display" necessarily means something
different. And so it does. Among the
definitions of "display" in ordinary
speech (particularly where, as here, it is
used as a noun rather than a verb) is the
"demonstration or manifestation of
something." It is just that definition we

2
Code § 18.2-387, Virginia's indecent exposure statute,
provides: "Every person who intentionally makes an obscene
display or exposure of his person, or the private parts
thereof, in any public place, or in any place where others are
present, or procures another to so expose himself, shall be
guilty of a Class 1 misdemeanor. No person shall be deemed to
be in violation of this section for breastfeeding a child in
any public place or any place where others are present."

9
 give to the word "display" when used in
other provisions of the Code.

. . . .

Properly understood, every visible
exposure of one's genitals necessarily
involves a display of one's genitals. But
that does not prove the reverse: that
every display necessarily includes an
exposure. Hence, a robber can still
display a handgun in his pocket while not
exposing it to sight. So too a man
masturbating in public can still display
his "person" or "private parts" while not
exposing his penis to sight. We thus
reject Moses's claim that the display-or-
exposure formulation in Code § 18.2-387
codifies a mere semantic redundancy, a
pairing of interchangeable synonyms.

Moses, 45 Va. App. at 363-64, 611 S.E.2d at 610 (citation

omitted). In affirming Moses' conviction under Code § 18.2-

387, the Court of Appeals determined that he had "displayed"

his genitalia by "exercising his penis" underneath "his

pants." Id. at 359, 611 S.E.2d at 608.

The Court of Appeals diverged from its reasoning in

Siquina and Moses in several unpublished decisions – including

its opinion in this case. In Mason, Record No. 0309-97-2,

slip op. at 4 (Nov. 10, 1998), the Court of Appeals held that:

"[e]xposure means not only to 'lay open to view' but also to

'lay open to feel or to touch.'" The Court of Appeals cited

no authority for this proposition, noting only that the

"[c]ommon usage of the word 'expose'" encompasses more than

10
visual exposure, such as when "a person is exposed to a toxin

even though the person may have no visual perception of the

substance." Id.

In this case, the Court of Appeals found:

the reasoning in Mason persuasive, in that
"expose" means not only to lay bare to
view, but to feel or touch. This
conclusion is consistent with the
dictionary definition of "expose."
Further, to limit exposure to visual
observation unduly limits the behavior
that the statute intends to prevent.
Children should not be subjected in any
sensory capacity to the sexual or genital
parts of an adult who harbors lascivious
intent.

Farhoumand, 2013 Va. App. LEXIS 353, at *7. These conclusions

conflict with the published decisions of the Court of Appeals

in Siquina, 28 Va. App. at 697-99, 508 S.E.2d at 352-53, and

Moses, 45 Va. App. at 363-64, 611 S.E.2d at 610, which state,

respectively, that proof of "exposure" requires "a reasonable

probability . . . that [the defendant's genitals] might be

seen by that child" and that "'exposure' can only mean some

degree of nudity."

The panel of the Court of Appeals erred in this case by

applying Mason, an unpublished decision, in place of its

earlier published opinions. We hold that the word "expose,"

as it is used in Code § 18.2-370, requires a visual display

where the genitalia are seen, or where there is a possibility

11
that they could be seen. Accordingly, exposure does not

include situations where the genitalia are felt but are

otherwise covered or obscured from view.

III. Sufficiency of the Evidence

Having found that the Court of Appeals erred in applying

a tactile definition of exposure to the facts of this case, we

must now review the all of the relevant evidence supporting

Farhoumand's conviction under each indictment. Then, applying

the correct definition, we must determine whether the evidence

offered under each indictment was sufficient to prove that

Farhoumand "expose[d]" his "genital or sexual parts" in

violation of Code § 18.2-370(A)(1).

A. Relevant Facts

At trial, S.F. testified that all of the abuse occurred

while Farhoumand was staying with S.F.'s family during

Farhoumand's school breaks. The abuse allegedly began shortly

before Farhoumand graduated from the University of Virginia

and continued while he was attending dental school at the

University of California, Los Angeles. While S.F. testified

that the first incident of sexual abuse occurred during the

winter of 2009, during his seventh grade year, the time

periods covered by the indictments only encompassed S.F.'s

eighth and ninth grade years.

12
 S.F. testified that the first incident of abuse

occurred in the middle of the night. S.F. stated that he

"woke up" and saw Farhoumand "fondling [him]." He testified

that the second incident of abuse occurred days later and

involved the "same thing."

Indictment No. 2: Jan. 1, 2010 - Sept. 3, 2010 3

Indictment No. 2 covered the spring of S.F.'s eighth

grade year and the following summer. S.F. testified that in

"the beginning, and throughout eighth grade" there were

incidents where "[Farhoumand] would take [S.F.'s] hand, put it

on [Farhoumand's] penis" and "masturbate himself" with it.

When Farhoumand placed S.F.'s hand on Farhoumand's penis, S.F.

would "sometimes . . . [be] turn[ed] to his side . . . [a]way

from [Farhoumand]." During these acts, S.F. stated that

Farhoumand's underwear "was not fully down, sometimes it

wasn't at all. Very rarely was it fully down." However, S.F.

testified that "occasionally [Farhoumand's penis] was exposed,

but most of the time it was inside [his underwear]." S.F.

described these acts with clarity, but could not remember

precisely when they occurred:

3
Indictment 1, which covered September 3, 2009 through
December 31, 2009, the fall and early winter of S.F.’s eighth
grade year, was dismissed at trial. The evidence under this
indictment was almost entirely duplicative of the evidence
offered under Indictment No. 2; therefore, we will move
directly to reciting the facts offered at trial that support
Indictment No. 2.

13
 Q When you say, "over time," do you know how
long afterwards that occurred?

A Unh-huh.

Q Do you remember what grade you were in
when that occurred?

A No.

Q Did you ever see your cousin's penis?

A Yes, I did.

Q And how often did that happen?

A I'm not certain – rarely.

When asked again to specify when the defendant first began

placing S.F.'s hand on the defendant's penis, S.F. testified:

THE WITNESS: It – I can be for sure that it
happened, like, before ninth grade began, was the
first incident. So all throughout ninth grade, but
the first incident basically must have been, I can
pretty much assure the Court, that it was before
ninth grade.

THE COURT: You're saying the first incident
occurred before ninth grade?

THE WITNESS: Yes.

THE COURT: And then after that – you mean,
where he took your hand and put it on his penis?

THE WITNESS: Yes.

During the defense's case-in-chief, Farhoumand testified

on his own behalf and was cross-examined by the Commonwealth.

He explained that he that graduated from the University of

Virginia in December of 2009 and lived "the majority of the

14
time" at S.F.'s house from January 1, 2010 to March 30, 2010.

Farhoumand took several trips that spring and summer but the

evidence shows that he was back in Virginia: May 2, 2010 to

May 21, 2010; May 24, 2010 to June 2, 2010; June 8, 2010 to

July 26, 2010; August 2, 2010 to August 22, 2010; and August

25, 2010 to September 4, 2010.

During these periods, Farhoumand admitted to being a

frequent house guest at S.F.'s home, sometimes sleeping in the

same bed with S.F., and that between March 2010 and August

2010 Farhoumand "may have touched [S.F.] [o]n eight

occasions." On cross examination, he acknowledged admitting
4
to "fondling" S.F., "four to eight times." However,

Farhoumand denied ever forcing S.F. to touch his penis, and he

also disavowed ever visually exposing his genitalia to S.F.

Indictment No. 3: Sept. 4, 2010 – Dec. 31, 2010

Indictment No. 3 covers the fall and early winter of

S.F.'s ninth grade year. As described above, S.F. testified

that the incidents when S.F. was made to touch Farhoumand's

penis continued to occur "[d]uring the course of ninth grade."

However, S.F. said that the abuse that happened "during ninth

grade" was "probably the most traumatic." S.F. stated:

4
Two Los Angeles police officers, Kenneth Gutierrez and
Tony Im, testified during the Commonwealth’s case-in-chief
that Farhoumand had confessed to them that he had touched his
cousin’s penis "four times."

15
"[Farhoumand] would essentially turn me over to face him, and

essentially place his penis touching mine, and masturbate it

or put my hand on it and masturbate it." S.F. provided the

following details about these incidents:

Q And how were your cousin's clothes?

A They were pulled down, or again through the
fly. I didn't really look, so I wasn't sure.

Q And did you ever see his penis during those –

A Once, because I didn't – I wasn't sure what was
happening, but once I figured it out, I wouldn't look.

Q And were you able to feel his penis?

A Yeah. That was strange.

S.F. also testified that he could see Farhoumand's face during

the abuse that involved penis-to-penis contact.

During the time frame covered by Indictment No. 3,

Farhoumand's testimony supports that he was in Virginia

September 4 to September 11 and December 11 to December 31,

2010. While Farhoumand testified that S.F. went out of the

country from December 22 through the remainder of the

indictment period, at least 17 days remain where he was in

Virginia and had access to the victim.

Indictment No. 4: Jan. 1, 2011 - Sept. 3, 2011

Indictment No. 4 covers the late winter and early spring

of S.F.'s ninth grade year and the following summer.

Farhoumand testified that he was only in Virginia from June 12

16
to June 24 and September 1 through September 3, 2011 during

this time period.

As mentioned under Indictment No. 3, S.F. testified that

he saw Farhoumand's penis "once" during the ninth grade. He

also testified, as described above, that he was made to touch

Farhoumand's penis "during the course of ninth grade" and that

Farhoumand had placed his uncovered penis against S.F.'s penis

"in ninth grade."

S.F. claimed that the last incident of abuse occurred on

September 2, 2013, "right before tenth grade began, a day

before [S.F.'s fifteenth] birthday." S.F. testified that on

this occasion he also had a friend sleeping over in his room.

S.F. slept on the floor and S.F.'s friend slept on the bed.

S.F. stated that Farhoumand came next to him on the floor and

"proceeded to fondle" him. S.F. explained that this incident

was "actually less severe than other times."

On cross-examination, when asked whether Farhoumand had

placed S.F.'s hand on Farhoumand's penis during that

encounter, S.F. replied, "to be quite honest, it's difficult

to remember but if I had to say . . . today for the court

officially, I would say yes." There was no evidence offered

as to whether Farhoumand's penis was ever uncovered during

this incident.

B. Analysis

17
 We review the sufficiency of the evidence in the light

most favorable to the Commonwealth, and only reverse the

judgment of the circuit court when its decision is plainly

wrong or without evidence to support it. Maldonado-Mejia v.

Commonwealth, 287 Va. 49, 54, 752 S.E.2d 833, 835 (2014).

Farhoumand argues that each of his convictions must be

reversed because "[t]he Commonwealth . . . failed to prove

beyond a reasonable doubt that the defendant's penis was

exposed to sight during any one of the time periods covered by

the three indictments." The Commonwealth responds that an

indictment is not invalid if omits or misstates the time at

which an offense occurs when time is not an element of an

offense. The Commonwealth further argues that there was

sufficient evidence to support the convictions under each

indictment.

Code § 19.2-226 provides that "no indictment or other

accusation shall be quashed or deemed invalid . . . [f]or

omitting to state, or stating imperfectly, the time at which

the offense was committed when time is not the essence of the

offense." In Harris v. Commonwealth, 185 Va. 26, 37 S.E.2d

868 (1946), we reaffirmed the longstanding principle that,

"[i]n a felony case the Commonwealth may prove the commission

of a crime charged on a date different from that alleged in

18
the indictment." Id. at 33, 37 S.E.2d at 871 (citing Puckett

v. Commonwealth, 134 Va. 574, 585, 113 S.E. 853, 856 (1922)).

Several federal circuits agree, holding that "[t]ime is

not a material element of a criminal offense unless made so by

the statute creating the offense." United States v. Stuckey,

220 F.3d 976, 982 (8th Cir. 2000)(citing Ledbetter v. United

States, 170 U.S. 606, 612 (1898)(stating that it is not

"necessary to prove that the offence was committed on the day

alleged, unless a particular day be made material by the

statute creating the offence"). See also Real v. Shannon, 600

F.3d 302, 308 (3rd Cir. 2010); United States v. Creamer, 721

F.2d 342, 343 (11th Cir. 1983)("reject[ing] the contention

that time becomes a material element of a criminal offense

merely because the defense of alibi is advanced."); United

States v. King, 703 F.2d 119, 123-24 (5th Cir. 1983).

While an indictment is not invalid if it omits or

misstates the time at which an offense occurs when time is not

an element of the offense, each indictment must meet due

process requirements:

These criteria are, first, whether the indictment
"contains the elements of the offense intended to be
charged, 'and sufficiently apprises the defendant of what
he must be prepared to meet,'" and, secondly, "'in case
any other proceedings are taken against him for a similar
offence, whether the record shows with accuracy to what
extent he may plead a former acquittal or conviction.

19
Russell v. United States, 369 U.S. 749, 763-64

(1962)(collecting cases).

In Clinebell v. Commonwealth, 235 Va. 319, 321, 368

S.E.2d 263, 264 (1988), the defendant was convicted of five

counts of sexual assault against his daughter. On appeal, he

argued that the indictments were fatally defective because

they failed to specify the precise dates of the offenses for

which he was convicted. Id. We concluded that the

indictments were legally sufficient and adopted the holding

and rationale of the Court of Appeals. 5 Id. In that

referenced opinion, the Court of Appeals observed:

In most criminal cases, there is no doubt that a crime
occurred; the only issue is who committed the crime. An
alibi-based defense is offered in such cases to prove
that it was impossible for the defendant to have
committed the offense because he was not at the scene of
the crime during its commission.
The question in most parent-child sexual abuse
cases, however, is not who committed the crime, but
whether a crime was ever committed.

Clinebell v. Commonwealth, 3 Va. App. 362, 367, 349 S.E.2d

676, 679 (1986).

The evidence shows that Farhoumand was a frequent house

guest in S.F.'s family home during the time periods alleged in

5
In Clinebell, we did not review the rationale
supporting our holding, but rather directly adopted the
rationale of the Court of Appeals in that case: "We conclude
that the indictments are legally sufficient, and on this
issue, we affirm the holding and rationale of the Court of
Appeals. See Clinebell, 3 Va. App. at 364-67, 349 S.E.2d at
677-79." 235 Va. at 321, 368 S.E.2d at 264.

20
the indictments. By his own admission, Farhoumand was alone

with, and fondled, S.F. on at least four to eight separate

occasions. The question here, like the question presented in

Clinebell, is not who committed the crime, but whether the

crime charged in each of the indictments was committed.

Indictment No. 2: Jan. 1, 2010 - Sept. 3, 2010

S.F. testified that the first time Farhoumand placed

S.F.'s hand on Farhoumand's penis and "masturbated himself"

with it was "before ninth grade began." S.F. stated that when

Farhoumand placed S.F.'s hand on Farhoumand's penis, that the

defendant's underwear "was not fully down, sometimes it wasn't

at all. Very rarely was it fully down." However, S.F.

testified that Farhoumand's penis was "occasionally" exposed.

Farhoumand acknowledged that during the time frame covered by

Indictment No. 2, he lived "the majority of the time" at

S.F.'s house, except for a few trips that he took during the

summer of 2010. He also admitted that he had at least eight

opportunities to molest S.F., and that he fondled S.F. four to

eight times between March and August of 2010. Viewing this

evidence in the light most favorable to the Commonwealth, we

cannot conclude that the trial court's judgment convicting

Farhoumand on this count is plainly wrong or without evidence

to support it; therefore we will affirm the conviction as to

Indictment No. 2.

21
Indictment No. 3: Sept. 4, 2010 – Dec. 31, 2010

S.F.'s testimony that he saw Farhoumand's penis "once"

during ninth grade and that Farhoumand touched his uncovered

penis to S.F.'s penis "during ninth grade," combined with

Farhoumand's access to S.F. for at least 17 days during the

indictment period and evidence of contact with S.F. during

that time, support the trial court's judgment convicting the

defendant. Therefore, under Indictment No. 3, we find that

the evidence was sufficient to prove that Farhoumand visually

exposed his penis in violation of Code § 18.2-370(A)(1).

Indictment No. 4: Jan. 1, 2011 - Sept. 3, 2011 6

S.F. testified that he saw Farhoumand's penis "once"

during the ninth grade. He also testified, as described

above, that he was made to touch Farhoumand's penis "during

the course of ninth grade" and that Farhoumand had placed his

uncovered penis against S.F.'s penis "in ninth grade."

However, this is the same evidence used to support the

6
September 3, 2011, S.F's fifteenth birthday, was included
within the time frame alleged in Indictment No. 4. There was
conflicting evidence at trial as to whether the final act of
abuse occurred on September 2, 2011, which would have made any
conduct constituting an act of exposure a felony, or September
3, which would have made the same conduct a misdemeanor.
However, we need not address this issue, because we find that
the evidence offered with respect to the final incident of
abuse was insufficient to support the allegation that the
defendant visually exposed his "sexual or genital parts."

22
conviction under Indictment No. 3 and cannot be used to

support a second conviction under Indictment No. 4.

The only other specific evidence of abuse offered under

Indictment No. 4 was the final incident on September 2, 2013.

No evidence was offered as to whether Farhoumand's penis was

ever uncovered during this incident. Therefore, we conclude

that the evidence in the record was insufficient to sustain a

conviction under Indictment No. 4.

IV. Conclusion

Accordingly, we will reverse and vacate Farhoumand's

conviction under Indictment No. 4 (FE-2012-707) because the

evidence was insufficient to prove that a distinguishable act

of visual exposure occurred during the time period stated in

the indictment. 7 To the extent that the trial court relied on

a tactile definition of exposure in convicting Farhoumand

under Indictment No. 2 and Indictment No. 3, we hold that such

reliance was error. Nevertheless, after reviewing the

evidence, we will affirm Farhoumand's convictions under

Indictment No. 2 (FE-2012-705) and Indictment No. 3 (FE-2012-

706) because there was sufficient evidence to prove that the

defendant visually "expose[d]" his penis to S.F., a minor

7
Because Farhoumand received a sentence of 10 years with 6
years suspended on each charge, and those sentences were
ordered to be served concurrently, we do not need to remand
the case for resentencing.

23
child, in violation of Code § 18.2-370(A)(1), during the time

frames alleged.

We reject the conclusion set forth by the Court of

Appeals that "expose" under Code § 18.2-370(A)(1) includes

tactile exposure. The plain meaning of the statute, the

legislative history, our decisions interpreting "exposure,"

and the published decisions of the Court of Appeals all

support our conclusion that exposure is limited to a visual

display where the child saw, or could have seen, the uncovered

genitalia.

Affirmed in part,
reversed in part,
and final judgment.

JUSTICE McCLANAHAN, concurring in part and dissenting in part.

The General Assembly placed no limitation on the nature

of the knowing and intentional "expos[ure]" of one's sexual or

genital parts to a child, with lascivious intent, in

criminalizing such act under Code § 18.2-370. Thus, the legal

question before this Court as posed by the majority opinion -

"[w]hether the term 'expose,' as used in Code § 18.2-370, is

limited to visual exposure, or includes tactile exposure" - is

answered in the asking. Because tactile exposure is indeed a

form of exposure, it is proscribed under the statute.

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 "Expose" is defined as to "lay open to view[,] lay

bare[,] make known[,] exhibit." Webster's Third New

International Dictionary 802 (1993). Based on this

definition, I find no compelling reason to conclude that the

proscribed conduct must be limited to a visual exposure.

Indeed, because exposure is defined as "make known" or "lay

bare," such a definition encompasses a tactile exposure as

well as visual.

I concur in the result reached by the majority opinion on

Indictment Numbers 2 and 3 because I conclude there was

sufficient evidence to convict Farhoumand as to these two

indecent liberties charges based on proof of visual, as well

as, tactile exposure. But, I would also affirm Farhoumand's

conviction on Indictment Number 4 as I conclude, like the

Court of Appeals, that there was also sufficient evidence of

tactile exposure on this charge.

25