Horton v. Commonwealth

Present: All the Justices

THOMAS E. HORTON, SR.

v. Record No. 971645

COMMONWEALTH OF VIRGINIA

OPINION BY JUSTICE CYNTHIA D. KINSER
April 17, 1998
GEORGE R. NEWBY, JR.

v. Record No. 971576

COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In these cases, we decide whether there is sufficient

evidence of penetration to support the defendants’

convictions of forcible sodomy by engaging in cunnilingus

in violation of Code § 18.2-67.1. Because the evidence in

each case proves that the respective defendant penetrated

the outer portion of his victim’s genitalia, we will affirm

the convictions.

I. STANDARD OF REVIEW

The applicable standard of review is as follows:

Where the sufficiency of the evidence is
challenged after conviction, it is our duty to
consider it in the light most favorable to the
Commonwealth and give it all reasonable inferences
fairly deducible therefrom. We should affirm the
judgment unless it appears from the evidence that the
judgment is plainly wrong or without evidence to
support it.
Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d

534, 537 (1975); see also Code § 8.01-680. Thus, we will

present the facts of each case in the light most favorable

to the Commonwealth.

II. FACTS

Horton v. Commonwealth

On February 6, 1996, H.H., 1 age 12, was asleep in her

bedroom. She was alone in the house because her parents

were at work. At approximately 1:48 a.m., H.H. awoke to

find someone standing at the door of her bedroom.

Initially, H.H. thought it was her father, but she realized

it was not when she looked at her clock and saw the time.

H.H. testified that as the man approached her, she could

see that he was wearing what she described as a “hunting

mask” which left his eyes, nose and mouth uncovered. When

the man came closer to her, H.H. started kicking and

screaming, and the man sprayed something in her eyes or

face that burned. When the man realized that she could

still see, he sprayed her again. However, before spraying

her the second time, he had removed his mask, and H.H.

recognized the man as Thomas E. Horton, Sr., her neighbor.

1
Full name deleted by the Court.

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Even before seeing his face, H.H. had recognized Horton’s

voice.

Horton then handcuffed H.H.’s wrists together, pulled

down her purple jogging shorts, pulled up her shirt, and

got on top of her. Horton had also pulled down his pants.

Asserting that she knew the words for the parts of the body

because of a Family Life course she took at school, H.H.

said she felt his penis on the inside of her leg and

described how Horton spread her legs apart, pulled up her

shirt, and “licked [her] boobs.” When asked if Horton

tried to do anything else, H.H. stated that he tried “[to]

get his penis in my vagina,” but he was unable to do so.

H.H. then testified as follows:

Q. Did he do anything else to your vagina?

A. He licked it.

Q. He licked it?

A. Yes.

Q. With his tongue?

A. Yes.

When H.H. told Horton she needed to go to the

bathroom, he removed the handcuffs and allowed her to go.

However, Horton accompanied her to the bathroom and forced

her to wash. H.H. testified that upon their return to the

bedroom, Horton threatened to kill her if she told her

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parents. He finally departed around 2:30 a.m. H.H. did

not telephone the 911 emergency number for help because she

was afraid that Horton had remained somewhere on the

premises. H.H. told her parents about the incident when

they returned home at approximately 5:00 a.m. The police

were notified shortly thereafter.

A.C. Powers of the Augusta County Sheriff’s Department

investigated the incident. He recovered an empty condom

pack and a condom wrapper on the floor of H.H.’s bedroom.

Since H.H. identified her assailant as Horton, Powers went

to Horton’s residence. He subsequently searched Horton’s

truck and residence where he found a mask matching the one

described by H.H., handcuffs, a canister of pepper spray,

and two unused condoms.

At trial, Horton moved to strike the Commonwealth’s

evidence on the basis that there was insufficient proof of

penetration to support the sodomy charge. He renewed this

motion at the close of all the evidence. The trial court

overruled the motions, and the jury found Horton guilty of

forcible sodomy. 2

2
The jury also convicted Horton of breaking and
entering, attempted rape, and wearing a mask. These
convictions are not before the Court on this appeal.

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 On October 29, 1996, the trial court denied Horton’s

motion to set aside the verdict and entered judgment on the

jury’s verdict. Horton then filed a petition for appeal in

the Court of Appeals of Virginia, which both a single judge

and a three-judge panel denied. Horton appeals.

Newby v. Commonwealth

The victim in this case, D.C., 3 began a new job as a

waitress/bartender at a restaurant in Chesterfield County

on March 13, 1995. During that evening, she noticed George

R. Newby, Jr., in the restaurant because he made several

remarks to her about her marriage and appearance. When a

co-worker announced that it was closing time, the remaining

customers, including Newby, exited the restaurant. While

D.C. cleaned up, the co-worker attempted to lock the door

but had difficulty with the lock. Newby then re-entered

the restaurant on the pretext of helping with the lock and

remained until D.C. and the co-worker left. As D.C. walked

to her car, Newby asked her if she would give him a ride

home, and she agreed.

Newby directed D.C. where to drive, and she eventually

arrived in front of a building that Newby described as “his

club.” D.C. testified that Newby then brought his left arm

3
Full name deleted by the Court.

5
around her neck and started squeezing her. She honked her

horn, but Newby told her to take her hand off the horn or

he would kill her. D.C. testified that Newby held

something with a sharp blade across her nose.

Then, according to D.C., Newby forced her from the car

and pulled her in the direction of some woods adjacent to

the building. Newby forced D.C. to remove her clothes and

lie flat on her back. He then “put his penis in [her]

vagina.” Because her vaginal area was dry and

unlubricated, Newby pulled his penis out of her vagina.

D.C. testified that Newby next “put his mouth on my vaginal

area and he drooled and I know this because it was so cold,

I could feel the heat . . . .” When asked if Newby’s mouth

was specifically on her vaginal area, D.C. replied that he

was “on my vulva area.” D.C. further testified that Newby

put his penis back in her vagina and that he put his mouth

on her genitalia at least twice.

Newby forced D.C. to engage in sexually explicit

conversation with him, and he eventually ejaculated inside

her. Newby then returned D.C.’s clothes to her but

threatened that he would kill her and her children if she

told anybody about what he had done. According to D.C.,

Newby said, “This isn’t the first time that I raped and you

better not be the first one to tell.” Newby allowed D.C.

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to get dressed and return to her car, but she drove her car

into a ditch. Newby tried unsuccessfully to help D.C.

remove the car from the ditch. D.C. eventually walked to a

gas station where she telephoned a friend. The friend and

the police arrived shortly thereafter.

At trial, Newby’s defense was that D.C. consented to

the sexual activity. In support of his defense, Newby

testified, “I did lick Mrs. [C.’s] vaginal area and I did

penetrate her with my penis and have sex, but at no time

did she say, ‘No,’ did she say ‘Stop,’ or anything.”

At the conclusion of the Commonwealth’s evidence and

at the close of all the evidence, Newby moved to strike the

evidence on the basis that the Commonwealth had failed to

prove penetration on the sodomy charge. The trial court

overruled both motions. The jury convicted Newby of

forcible sodomy. 4

The Court of Appeals of Virginia awarded Newby an

appeal and affirmed his conviction of forcible sodomy in an

unpublished opinion dated July 1, l997. The Court of

Appeals reasoned that the jury could have found that

Newby’s mouth penetrated D.C.’s vulva during the protracted

4
The jury also convicted Newby of inanimate object
sexual penetration and rape. These convictions are not
before the Court on this appeal.

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assault and in the course of his effort to moisten her

genitalia. Newby appeals.

III. ANALYSIS

The issue in these cases is what constitutes

sufficient evidence of penetration to support a conviction

of forcible sodomy by engaging in cunnilingus in violation

of Code § 18.2-67.1. 5 “[P]enetration is an essential

element of the crime of sodomy.” Ryan v. Commonwealth, 219

Va. 439, 444, 247 S.E.2d 698, 702 (1978). However,

penetration in sodomy, as in rape, can be proved by

circumstantial evidence, and the penetration “need be only

slight.” Id.

To resolve this issue, we first address the definition

of cunnilingus. Since Code § 18.2-67.1 does not define

“cunnilingus,” we must give the term its ordinary meaning.

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The pertinent provisions of Code § 18.2-67.1 state
the following:

A. An accused shall be guilty of forcible sodomy
if he or she engages in cunnilingus, fellatio,
anallingus, or anal intercourse with a complaining
witness who is not his or her spouse, or causes a
complaining witness, whether or not his or her spouse,
to engage in such acts with any other person, and
1. The complaining witness is less than thirteen
years of age, or
2. The act is accomplished against the will of
the complaining witness, by force, threat or
intimidation of or against the complaining witness or
another person, or through the use of the complaining
witness’s mental incapacity or physical helplessness.

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McKeon v. Commonwealth, 211 Va. 24, 27, 175 S.E.2d 282, 284

(1970). Webster’s Third New International Dictionary 554

(1993) defines cunnilingus as “stimulation of the vulva or

clitoris with the lips or tongue.” The term “cunnilingus”

derives from the Latin words cunnus meaning vulva and

lingere meaning to lick. Id. See also Black’s Law

Dictionary 380 (6th ed. 1990) (“[a]n act of sex committed

with the mouth and the female sexual organ”).

Our inquiry does not stop with the definition of

cunnilingus. We must also address the anatomy of the

female genitalia in relation to the act of cunnilingus.

The female external genitalia, starting with the outermost

parts, are: “the mons pubis, the labia majora et minora

pudendi, the clitoris, vestibule, vestibular bulb and the

greater vestibular glands. The term ‘vulva’ . . . includes

all these parts.” Henry Gray, Anatomy, Descriptive and

Surgical 1446 (Peter L. Williams et al. eds., 37th ed.

1989); see also Lawyers’ Medical Cyclopedia of Personal

Injuries and Allied Specialties 534 (Richard M. Patterson

ed., 4th ed. Vol 5A 1997); accord State v. Ludlum, 281

S.E.2d 159, 162 (N.C. 1981).

We have previously recognized the significance of the

anatomical structure of the female genitalia in relation to

the element of penetration. In Moore v. Commonwealth, 254

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Va. 184, 190, 491 S.E.2d 739, 742 (1997), we referenced the

Court of Appeals’ statement in Love v. Commonwealth, 18 Va.

App. 84, 88, 441 S.E.2d 709, 712 (1994) that “penetration

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 show penetration.” In Rowland v.

Commonwealth, 147 Va. 636, 136 S.E. 564 (1927), we held

that penetration of the vulva was sufficient to affirm a

conviction of rape. In that case, the doctor who had

examined the victim testified that he was unable to “insert

his finger in the female organ” because the hymen was

intact but that there might have been penetration of the

vulva without injury to the hymen. Id. at 638, 136 S.E. at

565.

Since cunnilingus involves stimulation of the vulva or

clitoris and the vulva encompasses the outermost part of

the female genitalia, we conclude that penetration of any

portion of the vulva is sufficient to prove sodomy by

cunnilingus. Penetration of the vaginal opening or vagina

is not required. In other words, “insertion of the

defendant’s tongue into the victim’s vagina need not be

shown to prove cunnilingus.” Love, 18 Va. App. at 88, 441

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S.E.2d at 712; accord State v. Kish, 443 A.2d 1274, 1278

(Conn. 1982); Partain v. State, 492 A.2d 669, 672 (Md. Ct.

Spec. App. 1985); State v. Thompson, 574 S.W.2d 432, 434

(Mo. Ct. App. 1977); State v. Brown, 405 N.W.2d 600, 607

(Neb. 1987); State v. Fraction, 503 A.2d 336, 338 (N.J.

Super. Ct. App. Div. 1985); Ludlum, 281 S.E.2d at 162;

State v. Beaulieu, 674 A.2d 377, 378 (R.I. 1996).

Turning now to the evidence in Horton’s case, H.H.

testified, in response to a question whether Horton did

anything else to her vagina, that he licked it with his

tongue. According to H.H., this act occurred after Horton

had unsuccessfully tried to insert his penis into her

vagina. Because of a Family Life course she took at

school, H.H. asserted that she knew the words for the parts

of the body. Her comprehension is evidenced by the fact

that she herself used the words “vagina” and “penis” in

describing Horton’s attempt to insert his penis into her

vagina.

Therefore, we conclude that this evidence, taken in

the light most favorable to the Commonwealth, is sufficient

to establish that Horton penetrated the vulva or outermost

portion of H.H.’s genitalia when he licked her vagina, and

in doing so, committed the act of sodomy by cunnilingus in

violation of Code § 18.2-67.1. Horton’s conviction is not

11
“plainly wrong or without evidence to support it.”

Higginbotham, 216 Va. at 352, 218 S.E.2d at 537.

We reach the same conclusion in Newby's case. D.C.

testified that Newby “put his penis in [her] vagina” but

pulled it out because she was unlubricated. Newby then

“put his mouth on [D.C.’s] vaginal area and . . . drooled.”

The jury could have inferred from this evidence that Newby

licked D.C.’s vagina or vaginal opening for the purpose of

lubricating her since he then re-inserted his penis into

her vagina. Furthermore, D.C. specifically stated that

Newby’s mouth was on her vulva, and Newby admitted that he

licked D.C.’s vaginal area. This evidence proves

penetration of D.C.’s outermost genitalia and is sufficient

evidence upon which to affirm Newby’s conviction of

forcible sodomy by engaging in cunnilingus. See also Ryan,

219 Va. at 444-45, 247 S.E.2d at 702 (affirming conviction

for carnal knowledge by mouth in which victim testified

that defendant licked her vagina with his tongue after

attempting unsuccessfully to engage in sexual intercourse).

Both Newby and Horton argue that our decision in Moore

is dispositive and underscores the insufficiency of the

evidence of penetration in their respective cases. We do

not agree. The critical factor in Moore was the victim’s

ambiguous testimony. The victim did not know or could not

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adequately describe the structure of her sexual anatomy and

used the term “vagina” generally to describe the external

portion of her genitalia. Her testimony during the

Commonwealth’s case-in-chief demonstrated her lack of

understanding since she testified that the defendant placed

his penis “both ‘in’ and ‘on’ her vagina.” Moore, 254 Va.

at 187-88, 491 S.E.2d at 741. Finding the Commonwealth’s

evidence thus in a “state of equipoise on an essential

element of the crime,” we concluded that proof of

penetration failed as a matter of law. Id. at 189, 491

S.E.2d at 741. See also Ashby v. Commonwealth, 208 Va.

443, 444, 158 S.E.2d 657, 658 (1968), cert. denied, 393

U.S. 1111 (1969) (finding evidence that boy’s mouth was

merely placed on man’s genitals insufficient to prove

penetration).

In contrast to Moore, neither H.H. nor D.C. testified

equivocally about the nature of the sexual acts committed

upon them by their respective assailants. In addition,

they each understood the structure of their genitalia and

used the appropriate terms to describe their own anatomy as

well as the anatomy of their assailant. In no respect was

the evidence in either Horton’s or Newby’s case in a “state

of equipoise,” as it was in Moore.

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 For these reasons, we will affirm the judgment of the

Court of Appeals in each case.

Record Number 971645--Affirmed.
Record Number 971576--Affirmed.

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