COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges AtLee, Ortiz and Lorish
Argued at Richmond, Virginia
ANDREW LUKE NEFF
MEMORANDUM OPINION* BY
v. Record No. 1307-22-2 JUDGE DANIEL E. ORTIZ
FEBRUARY 6, 2024
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF DINWIDDIE COUNTY
Paul W. Cella, Judge
Todd M. Ritter (Hill & Rainey, on brief), for appellant.
Rosemary V. Bourne, Senior Assistant Attorney General (Jason S.
Miyares, Attorney General, on brief), for appellee.
Following a bench trial, the Circuit Court of Dinwiddie County convicted Andrew Luke
Neff of sexual battery, in violation of Code § 18.2-67.4, and strangulation, in violation of Code
§ 18.2-51.6. On appeal, he challenges the sufficiency of the evidence underlying his convictions.
Because the judgment of the trial court is not plainly wrong or without evidence to support it, we
affirm.
BACKGROUND
“In accordance with familiar principles of appellate review, the facts will be stated in the
light most favorable to the Commonwealth, the prevailing party [below].” Poole v. Commonwealth,
73 Va. App. 357, 360 (2021) (quoting Gerald v. Commonwealth, 295 Va. 469, 472 (2018)). This
standard requires us to “discard the evidence of the accused in conflict with that of the
Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and
*
This opinion is not designated for publication. See Code § 17.1-413(A).
all fair inferences to be drawn [from that evidence].” Bagley v. Commonwealth, 73 Va. App. 1,
26 (2021) (alteration in original) (quoting Cooper v. Commonwealth, 54 Va. App. 558, 562
(2009)).
A.H.1 and Andrew Neff met at Southside Virginia Emergency, where Neff was
volunteering, and A.H. worked full time. After knowing each other for a few years, they decided
to go on a date on January 16, 2021, planning to “just hang out” at A.H.’s house. Prior to the
date, A.H. told Neff that she did not want any “funny business,” by which she meant she “didn’t
want to have any kind of . . . sexual encounter with him.” Neff “seemed to have understood.”
While they were “hanging out” in A.H.’s kitchen, Neff played music, danced around, and
acted “playful.” When Neff then tried to kiss A.H., she pulled back and reminded him, “no
funny stuff,” however Neff stated, “it was just kissing” so A.H. relented because she “did agree
to that.” The two moved to the couch to watch a movie, where they periodically kissed. A.H.
removed her bra and asked Neff to give her a backrub, which he did. While they were kissing
each other on the couch, Neff started rubbing A.H. between her legs; she believed he was trying
to unbutton her pants. When she told him no, he responded by “put[ting] his hand around [her]
throat and push[ing] down more than he squeezed,” while stating that “nobody fucking tells me
no.” He choked her for 15 to 20 seconds with enough force that it was hard for A.H. to swallow
and “a little bit difficult [for her] to breathe.” She testified that she did not have any “physical
injuries or visible injuries” but had pain “[f]rom where he had his hand on [her] chest” that lasted
three to four days. She further clarified that his forearm was on her chest while he choked her,
which caused her to suffer lingering pain “between [her] sternum and [her] clavicle right where
[her] neck meets.” After the choking, she did not say no again. Neff tried to kiss A.H. again but
she turned her head, so he began kissing her neck instead, until he eventually got up.
1
We use the victim’s initials to protect her privacy.
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A.H., who had originally told Neff that he would need to leave around 7:00 or 8:00 p.m.,
hinted that it was getting late and “it might be time for [him] to go.” She did not directly ask him
to leave. Neff stated that he wanted to “stay for a little bit longer.” Neff tried to kiss her again,
but A.H. did not reciprocate and tried to make excuses to leave. She told him that she needed to
take her kitten to her friend’s house, but she abandoned that excuse once he stated that he would
go with her. After A.H. told Neff that it was time for him to leave several more times, he
insisted on staying “just a few more minutes longer.” He then picked A.H. up and carried her to
her bedroom. Although she did not want to go to the bedroom with him, she did not protest
because she “was scared.”
Neff placed A.H. on her bed and sat on top of her legs, at which point he told her that he
was “craving physical touch,” and continued trying to kiss her despite her resistance. He
removed her shirt and asked if she would let him “go down on” her, which she declined. He then
put a pillow over her face, held her hands above her head, and rubbed her breasts. He did so
without her consent, though she did not express her discomfort. She testified that she was “very
scared” as she “didn’t know what he was trying to do.” She eventually freed herself, picked up
her shirt, and requested that he leave. He went to the front door, hugged her, and asked if they
would see each other again later that week. She said “yes, sure.” He kissed her and told her he
would text her when he got home.
Once Neff left, A.H. blocked him on all social media accounts. About 45 minutes later,
he texted her that he was home, to which she responded that she “didn’t agree with what he did
and [she] was afraid of confrontation to tell him in person, but [she] wasn’t into whatever it was
that he was doing and to not contact [her] again.” She then blocked his number. Neff later left
an apology letter in her mailbox. In the letter, Neff explained that he “got overwhelmed with the
need for physical touch” and “got extremely carried away.” He apologized for not leaving when
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she asked him to and wrote that he “was trying to be sexual and kinky” when he told her “don’t
tell me no.” He further explained that he was trying to be erotic by “blindfold[ing]” her with a
pillow. He maintained that he did not intend to scare her or make her uncomfortable.
A.H. did not report the incident to the police until September 2021 because she was
“afraid.” She eventually reported it because she saw Neff in her work parking lot and thought he
was trying to intimidate her. Dinwiddie County Sheriff’s Investigator Kenneth Droddy
interviewed Neff, who acknowledged that he choked A.H. and that it probably made her
uncomfortable but explained that he did so “to create an erotic moment” and did not intend to
hurt her. A.H. told Investigator Droddy that Neff choking her “restrict[ed] her airway” and
caused her pain “[i]n her neck.”
Neff testified that A.H. told him while they worked together that she was into “rougher
sex” such as “a little bit of choking and things like that.” According to Neff, he “very lightly
chok[ed] her, not in a way to cut off her air flow or hurt her or anything” and he “was trying to
be funny, kinky, [and] sexual.” He testified that they mutually agreed to go to the bedroom and
as he carried her, A.H. directed him to where the bedroom was. He also stated that they both
took off her shirt while they kissed. At no point during the night did he think A.H. felt scared or
uncomfortable. The trial court convicted Neff of strangulation and sexual battery and sentenced
him to five years in prison with four years and nine months suspended for strangulation, and to
six months in jail, all suspended, for sexual battery. Neff appeals.
ANALYSIS
Neff challenges the sufficiency of the evidence supporting his convictions. “On review
of the sufficiency of the evidence, ‘the judgment of the trial court is presumed correct and will
not be disturbed unless it is plainly wrong or without evidence to support it.’” Ingram v.
Commonwealth, 74 Va. App. 59, 76 (2021) (quoting Smith v. Commonwealth, 296 Va. 450, 460
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(2018)). “The question on appeal, is whether ‘any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’” Id. (quoting Yoder v.
Commonwealth, 298 Va. 180, 182 (2019)). “If there is evidentiary support for the conviction,
‘the reviewing court is not permitted to substitute its own judgment, even if its opinion might
differ from the conclusions reached by the finder of fact at the trial.’” Chavez v. Commonwealth,
69 Va. App. 149, 161 (2018) (quoting Banks v. Commonwealth, 67 Va. App. 273, 288 (2017)).
We address Neff’s offenses in the order they occurred.
I. Strangulation
Neff argues that the evidence was insufficient to support his conviction for strangulation
because the Commonwealth failed to prove that (1) A.H. suffered a bodily injury; (2) Neff acted
with the requisite criminal intent; and (3) Neff acted without A.H.’s consent. “[A]n issue of
statutory interpretation is a pure question of law which we review de novo.” Heart v.
Commonwealth, 75 Va. App. 453, 460 (2022) (quoting Green v. Commonwealth, 75 Va. App.
69, 76 (2022)). “Any person who, without consent, impedes the blood circulation or respiration
of another person by knowingly, intentionally, and unlawfully applying pressure to the neck of
such person resulting in the wounding or bodily injury of such person is guilty of strangulation.”
Code § 18.2-51.6(A).
A reasonable fact finder could conclude that A.H. suffered a bodily injury when Neff
choked her. “Bodily injury” means “any bodily injury whatsoever and includes an act of damage
or harm or hurt that relates to the body; is an impairment of a function of a bodily member,
organ, or mental faculty; or is an act of impairment of a physical condition.” Ricks v.
Commonwealth, 290 Va. 470, 479 (2015). A.H. did not have to experience “any observable
wounds, cuts, . . . breaking of the skin,” “[or] broken bones or bruises.” Id. (quoting English v.
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Commonwealth, 58 Va. App. 711, 719 (2011)). Moreover, “[t]he Commonwealth need not
present medical testimony to prove bodily injury resulting from strangulation.” Id. at 480.
A.H. testified that she had pain in her sternum or between her sternum and clavicle for
several days caused by Neff pressing down on her chest with his forearm while choking her.
Pain that lingers for several days satisfies the Supreme Court’s broad definition of bodily injury
as articulated in Ricks, even though A.H. had no observable injuries. See also McGowan v.
Commonwealth, 72 Va. App. 513, 522 (2020) (noting that “residual effects” of strangulation may
constitute bodily injury); Wandemberg v. Commonwealth, 70 Va. App. 124, 136 (2019) (finding
that the victim suffered bodily injury where she “testified that her neck hurt and was red after the
strangulation”). Although Neff emphasizes that A.H. did not testify about any injuries to her
neck, we discern no such requirement in the statute. The nature in which Neff applied pressure
to A.H.’s neck—pressing down on her neck and chest with forearm and hand—caused her bodily
injury, if not specifically to her neck then at least near her neck. Such conduct satisfies the
statute.2
Next, a reasonable fact finder could conclude that Neff acted with the requisite criminal
intent. Neff argues that the Commonwealth was required to prove that he intended to hurt, kill,
2
Neff attempts to refute A.H.’s bodily injury by analogizing his case to Chilton v.
Commonwealth, No. 1531-13-3, 2014 WL 6428394 (Va. Ct. App. Nov. 18, 2014), where we
reversed a strangulation conviction. There, this Court stated that because the complaining
witness failed to establish any observable external injuries, “the Commonwealth failed to
establish that the application of pressure to the neck of the victim resulted in a bodily injury.”
Id., slip op. at 7, 2014 WL 6428394, at *4. In an appeal from that decision, the Supreme Court
of Virginia did not adopt that rationale but ultimately agreed that the evidence was insufficient to
prove that the complaining witness suffered a bodily injury. Ricks, 290 Va. at 480. Because the
complaining witness never clearly testified that Chilton actually applied pressure to her neck nor
did she completely lose consciousness, the Court found that the “Commonwealth’s evidence was
so minimal that it failed to establish that [the complaining witness] suffered a bodily injury in the
form of a loss of consciousness.” Id. at 481. Here, A.H. did testify as to the restriction of her
airways and her resulting injuries. Therefore, the pain she experienced falls under the Court’s
definition of bodily injury relating to Code § 18.2-51.6.
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scare, or injure A.H. His only legal authority for this proposition is the doctrine that criminal
statutes be strictly construed against the Commonwealth. But that doctrine does not empower us
to read elements into a statute where none exist. See Lahey v. Johnson, 283 Va. 225, 230 (2012)
(explaining that appellate courts may not, “under the guise of statutory construction,” read into a
statute’s words that the legislature did not use). Again, Code § 18.2-51.6 provides that “[a]ny
person who, without consent, impedes the blood circulation or respiration of another person by
knowingly, intentionally, and unlawfully applying pressure to the neck of such person resulting
in the wounding or bodily injury of such person is guilty of strangulation.” Contrary to Neff’s
argument, the words “hurt,” “kill,” and “scare” are absent from the statute. Even if
“intentionally” modifies “resulting in the wounding or bodily injury,” “[a] trier of fact may infer
that a person intends the natural consequences of his or her acts.” Webber v. Commonwealth, 26
Va. App. 549, 565 (1998) (quoting Hernandez v. Commonwealth, 12 Va. App. 669, 672 (1991)).
Here, Neff intentionally applied pressure to A.H.’s neck and chest for 15 to 20 seconds. It is
reasonable to infer from this evidence that Neff intended to cause her injury. In so concluding,
the fact finder could disregard Neff’s self-serving testimony that he intended to create an erotic
moment, particularly when coupled with Neff’s statement that “nobody fucking tells me no.”
See Brown v. Commonwealth, 75 Va. App. 388, 414 (2022) (explaining that a fact finder can
conclude that a defendant’s self-serving testimony was a lie to conceal his guilt).
Finally, a reasonable fact finder could conclude that Neff acted without A.H.’s consent.
Neff does not argue that A.H. agreed to being strangled. Rather, he argues that he did not act
knowingly against A.H.’s will as she consensually kissed him and “did not expressly say no” to
being strangled. However, “a defendant’s intent to commit the crime . . . is not the same issue as
whether a victim consented to sexual intercourse. Those two issues are distinct and should not
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be blurred.” Commonwealth v. Minor, 267 Va. 166, 173 (2004)3; see also People v.
Mangiaracina, 424 N.E.2d 860, 863 (Ill. App. Ct. 1981) (“[W]hether the defendant intended to
commit the offenses without the victim’s consent is not relevant; the critical question being
whether the victim did, in fact, consent. This involves her mental state, not the defendant’s.”).
Based on the plain language of Code § 18.2-56.1, Neff did not need to know that A.H. did not
consent to the strangulation. “Knowingly” and “intentionally” do not modify “without consent”
under any plain reading of the statute, and we decline Neff’s offer to find the evidence
insufficient merely because A.H. did not expressly say “don’t strangle me” before being
strangled. “[T]he issue of consent concerns [the] victim’s state of mind.” Minor, 267 Va. at 176.
A.H. testified that she did not give Neff permission to strangle her, that she was scared, and that
nothing after Neff said, “nobody fucking tells me no,” was consensual. Accordingly, the
evidence is sufficient to support Neff’s strangulation conviction.
II. Sexual Battery
Neff also challenges the sufficiency of the evidence underlying his sexual battery
conviction, arguing that the Commonwealth failed to prove that (1) he sexually abused A.H. by
force, threat, intimidation, or ruse, and (2) he acted with the requisite criminal intent. A person
commits misdemeanor sexual battery if he “sexually abuses . . . the complaining witness against
the will of the complaining witness, by force, threat, intimidation, or ruse.” Code
§ 18.2-67.4(A). “Sexual abuse” includes “intentionally touch[ing] the complaining witness’s
intimate parts” “with the intent to sexually molest, arouse, or gratify any person.” Code
§ 18.2-67.10(6)(a). “The Commonwealth need not demonstrate that the complaining witness
cried out or physically resisted the accused . . . but the absence of such resistance may be
3
Commonwealth v. Minor discusses the crime of rape; however, the elements are similar
in regard to intent and consent and therefore can be analogized in this case. See 267 Va. at
173-74.
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considered when relevant to show that the act alleged was not against the will of the complaining
witness.” Code § 18.2-67.6.
Here, the evidence was sufficient to establish that Neff accomplished his act of touching
A.H.’s breasts through force. When reviewing convictions of sexual battery done “by force,” we
consider the totality of the circumstances. Jones v. Commonwealth, 219 Va. 983, 986 (1979);
Bondi v. Commonwealth, 70 Va. App. 79, 88-89 (2019); Wactor v. Commonwealth, 38 Va. App.
375, 382-83 (2002). This Court has stated that “some force other than merely that force required
to accomplish the unlawful touching” is required. Johnson v. Commonwealth, 5 Va. App. 529,
534 (1988).4 “[U]nless some force is used to overcome the will of the complaining witness, the
unlawful touching constitutes common law assault and battery.” Id. Considering the totality of
the circumstances, we can conclude that Neff used force to “overcome [A.H.’s] will.” Sabol v.
Commonwealth, 37 Va. App. 9, 16 (2001). When they reached the bedroom, he sat on top of
her, took her shirt off, held her hands above her head, and put a pillow over her face—all before
the actual sexual abuse—rubbing her breasts. His actions prior to the sexual abuse were
sufficient to constitute the use of force to overcome A.H.’s will.
The evidence is also sufficient to show Neff used intimidation to achieve the sexual
touching. “Intimidation requires ‘putting a victim in fear of bodily harm by exercising such
domination and control of her as to overcome her mind and overbear her will.’” Id. at 18.
(quoting Sutton v. Commonwealth, 228 Va. 654, 663 (1985)). In this case, Neff’s and A.H.’s
4
Johnson was overruled by Robinson v. Commonwealth, 70 Va. App. 509 (2019) (en
banc), because the Court “failed to apply the appropriate appellate standard of review giving due
deference to the fact finder, and incorrectly found on appeal a lack of force despite the very facts
showing force cited in the Court’s opinion.” Id. at 517. Therefore, it overturned the application
of law to the facts, not the above stated principles.
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post-strangulation actions must be read with the strangulation in mind.5 A.H. testified that she
did not protest against Neff carrying her to the bedroom because she “was scared.” A reasonable
fact finder could conclude that she was scared because, when she previously rejected one of
Neff’s sexual advances, he responded by choking her for 15 to 20 seconds and demanding that
she not tell him “no.” Moreover, when Neff rubbed A.H.’s breasts, he placed a pillow over her
face, further heightening her fear that he may cause her harm if she did not acquiesce to his
desires. Finally, he refused to leave despite her repeated—and by his own admission,
understood—requests for him to leave her house. Based on these facts, a reasonable fact finder
could easily conclude that Neff intimidated A.H. and that such intimidation undermined her
willingness to reject his advances.
Finally, a reasonable fact finder could conclude that Neff acted with the requisite criminal
intent. Again, Neff relies primarily on his self-serving assertions that he believed A.H. would
enjoy his actions. And again, the trial court could reject Neff’s explanation and conclude from
Neff’s actions that he intended to overpower A.H.’s will to refuse him. Neff also relies on the
intent element necessary for the lesser-included crime of assault and battery. He argues that he
did not intend any harmful, offensive, or non-consensual touching. However, this is not the
intent necessary under Code § 18.2-67.10(6)(a) or Code § 18.2-67.4. “The state of mind of an
alleged offender may be shown by his acts and conduct.” David v. Commonwealth, 2 Va. App.
5
Neff relies on the case of Woodard v. Commonwealth, 27 Va. App. 405 (1998). In that
case, this Court reversed the defendant’s assault and battery conviction because his conduct was
accomplished by surprise rather than by intimidation. Id. at 407. “Nothing in the record proves
that [defendant] overcame [the complaining witness’s] mind and overbore her will by employing
psychological pressure, threats or fear of bodily harm. He simply grabbed her abruptly. She had
time neither to reflect upon his conduct, nor to submit.” Id. at 410. This case can be
distinguished from that of Woodard. None of what occurred on that January night occurred
abruptly nor did Neff take A.H. by surprise. Instead, A.H. had time to reflect on Neff’s conduct
and her options under the circumstances and was forced to submit to Neff’s non-consensual
touching because she was “scared” after he choked her.
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1, 3 (1986). There is no question that Neff’s conduct shows that he committed the offense “with
the intent to sexually molest, arouse, or gratify” either A.H. or himself. By his own admission,
he sought to create an “erotic moment” and craved physical touch. Accordingly, sufficient
evidence supports Neff’s conviction for sexual battery.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the trial court.
Affirmed.
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