COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Agee
Argued at Salem, Virginia
TERRY LYNN HOLLEY
OPINION BY
v. Record No. 0265-01-3 CHIEF JUDGE JOHANNA L. FITZPATRICK
APRIL 23, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
Charles J. Strauss, Judge
Rudolph A. Shupik, Jr., for appellant.
Kathleen B. Martin, Assistant Attorney
General (Randolph A. Beales, Attorney
General, on brief), for appellee.
Terry Lynn Holley (appellant) was convicted in a bench
trial of taking indecent liberties with a child, in violation of
Code § 18.2-370. On appeal, he contends the trial court erred
in finding the evidence sufficient to prove beyond a reasonable
doubt that he displayed his genitals in the presence of children
and that he acted with the requisite lascivious intent. Finding
no error, we affirm the judgment of the trial court.
I. BACKGROUND
Under familiar principles of appellate review, we examine the
evidence in the light most favorable to the Commonwealth, the
prevailing party below, granting to it all reasonable inferences
fairly deducible therefrom. See Juares v. Commonwealth, 26 Va.
App. 154, 156, 493 S.E.2d 677, 678 (1997).
So viewed, the evidence established that Tina Talley lived
next door to appellant for approximately four years. Talley
provided daycare services at her home for three small children.
On several occasions while in her yard with the children, Talley
saw appellant standing nude at the glass doors at the rear of
his house. The distance between the glass doors and Talley's
yard was stipulated to be 441.65 feet. On some days, appellant
whistled at Talley as he stood at the glass doors. On June 6,
2000, Marsha Flinchum saw appellant standing nude at the glass
doors of his home when she brought her twin fourteen-month-old
daughters to Talley's home. Also on that morning, Lisa Powell
dropped her six-month-old child at Talley's home and saw
appellant naked behind the glass doors waving his hands over his
head to get her attention. Powell told Talley about the
incident, and Talley called the police.
On June 7, 2000, at about 7:30 a.m., Deputy Vicky Chaney,
Sergeant Tommy Nicholson and Investigator Terry Barker of the
Pittsylvania County Sheriff's Office set up a video camera in
Talley's yard directly across from appellant's glass doors.
After approximately an hour, the curtains on appellant's glass
doors opened and, with her unaided eyes, Chaney saw appellant
standing naked at the doors. He had his hand on his penis and
jerked it up and down. Chaney saw appellant's genitals when he
moved his hand away from his penis, and she saw him looking
through binoculars.
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Talley followed her normal routine while the police were at
her home. She took the children outside into her yard and at
that time, she heard a knocking noise coming from appellant's
home. When she turned toward the noise, Talley saw appellant,
standing nude, at the glass doors. She testified appellant's
hand went "down toward his privates" and she could see all of
"his private area."
On June 8, 2000, Nicholson and two other officers executed
a search warrant at appellant's residence. After appellant was
advised of his rights, Nicholson "asked [him] if he had a
problem with expos[ure]" and he admitted that he did. He stated
he was taking testosterone shots and sometimes lost control.
Appellant's wife also stated appellant had "some problems
. . . with regard to his sexual potency" and that, based on an
article she found, she had suggested appellant allow sunlight to
"come down on him." She said she had seen him sitting in front
of the glass doors on several occasions, but had never seen him
naked at the doors or touch his genitals. She asserted that the
glass doors were tinted so one could not see into the house from
Talley's yard or from the roadway near Talley's property.
Appellant's sister also said she could not see appellant
standing in the glass doors from outside the house because of
the tinting.
Chaney's videotape was played for the trial court and after
viewing it the trial judge found inter alia:
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It's clear to the Court from the evidence
that, and from viewing the video, that the
defendant was standing close to the sliding
glass doors that were lit by sunlight. It's
clear to the Court that he could easily be
seen from the Talley's front yard. Now I
was not able to observe in the video his
genitals. I could see his hand moving in
his groin area, but I was unable to, from
the video, see his genitals. There were
witnesses that testified that they could see
his genitals. The police officer testified
that she could see his penis and that his
hand was jerking up and down. I could see
hand movements in the groin area which would
be consistent with that . . . I could see
the motions that would corroborate what the
officer testified to. . . . I could see in
the video that he picked up binoculars from
time to time and looked in the direction of
the front yard, and then would put the
binoculars back down and continue the hand
movements in his groin area. . . . [I]n this
case it was obvious from the video and it's
been testified to that at least one of the
children or two of the children were in the
yard playing, and with Mrs. Talley, running
around. Mrs. Talley testified to what she
could observe, which was she could observe
the defendant naked without any clothes and
she could observe his genitals. So in terms
of "expose" it appears that the evidence
would support that the defendant did expose
himself in the presence of the children,
whether they actually saw it . . . it's
whether they may reasonably have perceived
it, and if the witnesses that testified were
able to perceive it then it's a fair
inference that the children or child could
have perceived it also. The question is
whether it was with lascivious intent . . .
I think the linchpin probably in this case
is the defendant's admission to the officer
that he had a problem controlling himself,
had a problem with exposing himself, and I
think with all of that the Court finds the
evidence sufficient beyond a reasonable
doubt to find the defendant guilty.
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II. ANALYSIS
In reviewing the sufficiency of the evidence, "the judgment
of the trial court sitting without a jury is entitled to the
same weight as a jury verdict." Saunders v. Commonwealth, 242
Va. 107, 113, 406 S.E.2d 39, 42 (1991). "[T]he trial court's
judgment will not be set aside unless plainly wrong or without
evidence to support it." Hunley v. Commonwealth, 30 Va. App.
556, 559, 518 S.E.2d 347, 349 (1999). "The credibility of a
witness and the inferences to be drawn from proven facts are
matters solely for the fact finder's determination." Marable v.
Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235
(1998) (internal citation omitted).
III. PRESENCE
Appellant first argues that his actions were not done in
the "presence" of the children because he was in his home, the
distance involved made it unlikely he could be seen, and no
evidence established that the children, ages six months and
fourteen months respectively, had seen him. These contentions
are without merit.
Code § 18.2-370(A)(1) provides in pertinent part: "Any
person eighteen years of age or over, who, with lascivious
intent, shall knowingly and intentionally . . . [e]xpose his or
her sexual or genital parts to any child under the age of
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fourteen years to whom such person is not legally married
. . . shall be guilty of a Class 6 felony." 1
Black's Law Dictionary defines "presence" as an "[a]ct,
fact, or state of being in a certain place and not elsewhere, or
within sight or call, at hand, or in some place that is being
thought of." Black's Law Dictionary 1060-61 (5th ed. 1979).
We have interpreted Code § 18.2-370 to mean "the
intentional display by an adult, with 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."
Siquina v. Commonwealth, 28 Va. App. 694, 699, 508 S.E.2d 350,
353 (1998) (emphasis added).
"[W]hether an object is actually seen by its intended
audience is irrelevant to whether that object has been exposed."
Id. at 698, 508 S.E.2d at 352.
"[A]n indecent exposure must be either in the actual
presence and sight of others, or in such a place or under such
circumstances that the exhibition is liable to be seen by
others." Noblett v. Commonwealth, 194 Va. 241, 245, 72 S.E.2d
241, 243-44 (1952) (citing Case v. Commonwealth, 231 S.W.2d 86,
87 (Ky. 1950)). See also Wicks v. City of Charlottesville, 215
Va. 274, 276, 208 S.E.2d 752, 754-55 (1974) (citing Noblett and
1
The statute was amended in 2001 to make the offense a
Class 5 felony.
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stating that an act constitutes an intentional and indecent
exposure if it occurs in a place where it is likely to be seen,
whether actually seen by one or several persons).
The instant case falls squarely within the rationale of
Siquina and Noblett. The evidence proved that appellant exposed
himself in a place and manner where it could clearly be seen by
others, proof that exceeds the "reasonable probability"
required. Appellant's actions and appearance were visible to
anyone on the Talley property. Both Deputy Chaney and Talley
saw appellant standing at his glass doors naked and touching his
genitals while the children were outside. The children's
parents, Powell and Flinchum, saw appellant exhibiting similar
behavior one day earlier. The distance between appellant's home
and the Talley property was of no moment as appellant was
obviously visible to anyone in Talley's yard, including the
children playing there. "[W]hether an object is actually seen
by its intended [victim] is irrelevant . . . ." Siquina, 28 Va.
App. at 698, 508 S.E.2d at 352. Additionally, the trial judge
found that the videotape showed the same behavior of
masturbating or fondling himself testified to by the police and
Mrs. Talley. Thus, appellant's exposure was in the "presence of
the child[ren]" because a "reasonable probability exist[ed] that
[appellant] might be seen by [the children]," id. at 699, 508
S.E.2d at 353, and violated Code § 18.2-370.
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IV. LASCIVIOUS INTENT
Appellant next contends the Commonwealth failed to prove he
acted with a lascivious intent. We disagree.
"Intent may, and most often must, be proven by
circumstantial evidence and the reasonable inferences to be
drawn from proven facts are within the province of the trier of
fact." Summerlin v. Commonwealth, 37 Va. App. 288, 297, 557
S.E.2d 731, 736 (2002) (citing Fleming v. Commonwealth, 13 Va.
App. 349, 353, 412 S.E.2d 180, 183 (1991)). "Intent may be
shown by a person's conduct and by his statements." Id. at
297-98, 557 S.E.2d at 736 (citing Long v. Commonwealth, 8 Va.
App. 194, 198, 379 S.E.2d 473, 476 (1989)).
While Code § 18.2-370(A)(1) does not define the term
"lascivious," the Supreme Court in McKeon v. Commonwealth, 211
Va. 24, 175 S.E.2d 282 (1970), did so. McKeon holds that
"'lascivious' describes a state of mind that is eager for sexual
indulgence, desirous of inciting to lust or of inciting sexual
desire and appetite." Id. at 27, 175 S.E.2d at 284. "[T]he
evidence does not warrant a finding that lascivious intent of
the defendant has been shown beyond a reasonable doubt
. . . [if] . . . there is no evidence that the defendant was
sexually aroused; that he made any gestures toward himself or to
her; that he made any improper remarks to her; or that he asked
her to do anything wrong." Id. However, "proof of any one
factor can be sufficient to uphold a conviction under
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[Code § 18.2-370]." Campbell v. Commonwealth, 227 Va. 196, 200,
313 S.E.2d 402, 404 (1984).
Appellant argues the evidence failed to prove he was
sexually aroused, because the videotape did not clearly display
his genitals. Appellant contends the Commonwealth did not prove
he gestured toward himself, that he made any improper remarks,
or that he asked anyone to do anything wrong. Again, we
disagree.
Viewed in the light most favorable to the prevailing party,
the Commonwealth, the evidence met at least two of the McKeon
requirements. Deputy Chaney testified that she "could see his
penis, his genitals" and stated that she saw appellant "naked,
standing at his sliding doors . . . and he had his hand on his
penis . . . jerking up and down." The trial judge found that
the videotape tracked Chaney's testimony and showed appellant's
hand "moving in his groin area . . . which would be consistent
with . . . what the officer testified to." Therefore, the
evidence, properly viewed, established that appellant was
sexually aroused during the incident. This evidence satisfies
the first element of the McKeon test.
Appellant also attempted to get Talley's attention by
knocking on the glass doors after the children were outside.
Talley stated that she turned and saw appellant only after
hearing "something knocking . . . a noise . . . from Mr.
Holley's home." She also reported that she saw appellant
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exhibiting similar behavior on several previous occasions and
noted that "[s]ome days he would whistle" to get her attention.
Lisa Powell testified that she saw appellant "waving his hands
over his head trying to get [her] attention" as he stood naked
in the glass doors on the day prior to the incident. Finally,
appellant admitted to Sergeant Nicholson that he "had a problem
with exposing [himself]" and "that sometimes he could not
control himself." This evidence supports the finding that
appellant's actions satisfy at least two of the McKeon criteria.
In light of the foregoing, we affirm appellant's
conviction.
Affirmed.
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