COMMONWEALTH OF VA
COURT OF APPEALS OF
NOVEMBER 10, 1998
Record No. 0309-97-2
CLIFTON MASON, S/K/A
CLIFTON B. MASON
COMMONWEALTH OF VIRGINIA
UPON A REHEARING EN BANC
Oliver A. Pollard, Jr.,
Argued at Richmond,
Present: Chief Judge
Fitzpatrick, Judges Benton, Coleman, Willis, Elder, Bray,
Annunziata, Overton, Bumgardner and Lemons
MEMORANDUM OPINION  BY JUDGE SAM W. COLEMAN III
FROM THE CIRCUIT COURT
OF THE CITY OF PETERSBURG
Neil Kuchinsky (Neil
Kuchinsky & Associates, on brief), for appellant.
Kathleen B. Martin, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief), for appellee.
In a bench trial,
appellant, Clifton Mason, was convicted of four counts of taking
indecent liberties with a minor in violation of Code
Sect. 18.2-370. On appeal, he contends the evidence was
insufficient to support the convictions. A divided panel of this
Court found the evidence insufficient as to all four counts. We
granted a petition to rehear en banc two of those
counts. Upon rehearing en banc, we find that the
evidence was sufficient to prove that Mason exposed himself to
A.W. and T.B. within the meaning of Code Sect. 18.2-370. For
this reason, we affirm those convictions.
"On appeal, we
review the evidence in the light most favorable to the
Commonwealth, granting to it all reasonable inferences fairly
deducible therefrom." Martin v. Commonwealth, 4 Va.
App. 438, 443, 358 S.E.2d 415, 418 (1987).
Appellant was convicted
of taking indecent liberties with A.W. and T.B. in violation of
Code Sect. 18.2-370. At the time of the alleged incidents,
both victims were under the age of thirteen.
At trial, T.B. testified
that appellant touched her breasts and vagina with his hands,
pulled down her underpants, and rubbed his penis on her vagina.
She further testified that appellant also tried to insert his
penis into her vagina, but he did not succeed because she moved
away from him. The incident happened at night in an unlighted
A.W. testified that
appellant touched her breasts with his hands, pulled down her
underwear to her knees, and touched her between her legs with his
"private part." A.W. further testified that appellant
tried to insert his "private part" into her
"private part." Eventually, appellant stopped trying to
penetrate her and left the room. This incident also occurred at
night in an unlighted room.
At the conclusion of all
the evidence, appellant argued that his conduct did not
constitute taking indecent liberties as defined by Code
Sect. 18.2-370. The sole issue is whether the evidence is
sufficient to show that defendant exposed himself within the
meaning of Code Sect. 18.2-370. 
When the sufficiency of
evidence is challenged on appeal, an appellate court must review
the evidence that tends to support the conviction and must uphold
the conviction unless it is plainly wrong or lacks evidentiary
support. See Code Sect. 8.01-680; Commonwealth v.
Jenkins, 255 Va. 516, 520, 499 S.E.2d 263, 265 (1998).
"If there is evidence to support the convictions, 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." Id.
T.B. testified that
Mason pulled down her underpants and "rubbed his penis on
her vagina." Although T.B. did not testify that she visually
observed Mason’s penis, she testified that Mason
"rubbed" his penis on her. Similarly, A.W. testified
that Mason "touched her between her legs with his `private
part.’" The inference which the fact finder was entitled to
draw from A.W.’s testimony was that Mason touched her between her
legs with his penis. See e.g., Fisher v. Commonwealth,
228 Va. 296, 298, 321 S.E.2d 202, 203 (1984) (drawing the
inference that "private parts" in a girl’s testimony
described her vagina); Crump v. Commonwealth, 20 Va. App.
609, 611-12, 460 S.E.2d 238, 239 (1995) (drawing inference that
"private parts" in child’s testimony referred to
genitalia). The Commonwealth offered no evidence that A.W. or
T.B. visually observed Mason’s genitalia.
Any person at least
eighteen years old who, "with lascivious intent,
. . . knowingly and intentionally: (1) Expose[s] his or
her sexual or genital parts to any child under the age of
fourteen years to whom such person is not legally married"
commits the crime of taking indecent liberties with children.
Code Sect. 18.2-370.
Mason argues that
"expose" requires proof of visual perception. Although
the victims felt Mason’s penis touching them, he contends that
because the victims did not visually observe the penis, he did
not "expose" himself. As defined in the Webster’s
Third New International Dictionary 802 (1991),
"expose" means "to lay open to view: lay bare:
make known: set forth: exhibit, display." Common usage of
the word "expose" also encompasses more than "lay
open to view." For example, a person is exposed to a toxin
even though the person may have no visual perception of the
substance. "Exposure" means not only to "lay open
to view" but also to "lay open to feel or to
The Virginia Supreme
Court has interpreted the word "expose" in the context
of a Charlottesville city ordinance. See Wicks v.
Charlottesville, 215 Va. 274, 276, 208 S.E.2d 752, 754-55
(1974) (upholding conviction under indecent exposure ordinance
where witness saw defendant holding his hand in front of his
pants and urinating on public street but could not actually see
organ being held by hand). In that case, the Supreme Court
declined to adopt an interpretation that would restrict indecent
exposure to incidents where the offending exposure was actually
observed by one or more persons. See id. Similarly,
we decline to adopt the more restrictive definition of
"exposure" as suggested by Mason in the context of Code
The evidence proved that
Mason physically touched the victims’ genitals with his bare
penis, and this conduct was sufficient to support the trial
court’s finding that Mason "knowingly and intentionally
. . . expose[d] . . . his genital parts"
in violation of Code Sect. 18.2-370. Accordingly, we affirm
the trial court’s conviction with respect to these offenses.
Benton, J., dissenting.
In accord with well
established principles of statutory construction, "penal
statutes must be strictly construed against the Commonwealth and
applied only to those cases clearly falling within the language
of the statute." Branch v. Commonwealth, 14 Va. App.
836, 839, 419 S.E.2d 422, 424 (1992). When applying this
principle, we must adhere to the equally "important
principle . . . that ‘[w]ords in a statute are to
be construed according to their ordinary meaning, given the
context in which they are used.’" City of Virginia Beach
v. Board of Supervisors of Mecklenburg Co., 246 Va. 233, 236,
435 S.E.2d 382, 384 (1993) (quoting Grant v. Commonwealth,
223 Va. 680, 684, 292 S.E.2d 348, 350 (1982)). Thus, the act that
is charged "must be within both the letter and the spirit of
the statute; and . . . [the accused] is entitled
to the benefit of any reasonable doubt in the construction of the
statute." Price v. Commonwealth, 209 Va. 383, 385,
164 S.E.2d 676, 678 (1968).
In pertinent part, Code
Sect. 18.2-370 provides:
Any person eighteen
years of age or over, who, with lascivious intent, shall
knowingly and intentionally: (1) Expose his or her sexual or
genital parts to any child under the age of fourteen years to
whom such person is not legally married or propose that any
such child expose his or her sexual or genital parts to such
person or (2) [Repealed.] (3) Propose that any such child
feel or fondle the sexual or genital parts of such person or
propose that such person feel or fondle the sexual or genital
parts of any such child; or (4) Propose to such child the
performance of an act of sexual intercourse or any act
constituting an offense under Sect. 18.2-361 . . . shall
be guilty of a Class 6 felony.
For purposes of this
appeal, the relevant conduct proscribed in Code
Sect. 18.2-370(1) is "[e]xpose . . .
sexual or genital parts." Thus, by its plain and unambiguous
terms, Code Sect. 18.2-370 speaks only to the exposure of an
accused’s sexual or genital parts to a child or propositioning a
child to expose his or her sexual or genital parts to the
accused. Code Sect. 18.2-370 does not encompass cases where
the accused touches the child or the child is caused to touch the
accused. The word "expose" ordinarily means to lay open
to view. See Webster’s Third New International
Dictionary 802 (1991). I find no authority for the
proposition that "expose" means "to lay open to
feel or touch."
The evidence did not
prove that the children saw or had the opportunity to see
appellant’s genitals during the sexual incidents they described.
None of the children testified that appellant exposed his
genitals to their sight. One child testified that appellant
attempted to put his penis in her vagina, and the second child
testified that appellant touched her between her legs with his
"private part." At all times relevant to these
incidents, however, the room was dark. No evidence proved the
children saw or could have seen appellant’s genitals. The other
two children testified that the appellant touched or fondled
their breasts and vaginas with his hand. Thus, the evidence
failed to establish that appellant exposed his genitals to any of
the four children. Consequently, I would hold that appellant’s
actions, as related by the children, did not fall within the
conduct prohibited by Code Sect. 18.2-370.
The Commonwealth argues
that it is irrelevant whether the children
"visually . . . observed his penis." The
Commonwealth contends that by touching the child with his penis,
appellant violated the statutory proscription. To prevail on that
theory, however, the Commonwealth "must show that the words
of the [statute] distinctly cover the case. No conviction can be
had if the words [of the statute] are merely equally capable of a
construction that would, and one that would not, inflict the
penalty." McKay v. Commonwealth, 137 Va. 826, 830,
120 S.E. 138, 139 (1923).
When we consider the
ordinary meaning of the word "expose" within the
context of Code Sect. 18.2-370, we must examine both the
1981 amendment to Code Sect. 18.2-370 and the statutes
enacted in lieu of the language deleted from Code
Sect. 18.2-370. In 1981, the General Assembly amended Code
Sect. 18.2-370 to eliminate subsection (2), which read:
"In any manner fondle or feel, or attempt to fondle or feel,
the sexual or genital part of any such child, or the breast of
any such female child." The proscriptions formerly contained
in subsection (2) are now found in other statutes. Code
Sect. 18.2-67.3(A), which the General Assembly enacted in
1981 in its revision of the sexual abuse statutes, reads as
follows: "An accused shall be guilty of aggravated sexual
battery if he or she sexually abuses the complaining witness,
and . . . [t]he complaining witness is less than
thirteen years of age." Code Sect. 18.2-67.10(6)
defines "sexual abuse" as "an act committed with
the intent to sexually molest, arouse, or gratify any person
where . . . [t]he accused intentionally touches
the complaining witness’s intimate parts or material directly
covering such intimate parts." I believe the General
Assembly would not have transferred prohibition against such
conduct from Code Sect. 18.2-370 to Code
Sect. 18.2-67.3 if it had intended to continue such
prohibition under subsection (1) of Code Sect. 18.2-370. See
Roger D. Groot, Criminal Offenses and Defenses in Virginia
387 (3rd ed. 1994) ("Section 18.2-370 formerly criminalized
fondling; that portion has been repealed and is found in
Commonwealth and the majority cite Wicks v. Charlottesville,
215 Va. 274, 208 S.E.2d 752 (1974), as support for an expanded
definition of the word "expose," that case does not
lend comfort to the Commonwealth’s argument in this case. Wicks
was prosecuted because he "urinated on a public street in
the presence of others." Id. at 275, 208 S.E.2d at
754. On appeal from his conviction, the Supreme Court interpreted
a Charlottesville ordinance that codified the common law offense
of indecent exposure in a public place. Id. See also
Noblett v. Commonwealth, 194 Va. 241, 244-45, 72 S.E.2d
241, 243 (1952). The Court noted that "indecent
exposure" means "'[e]xposure to sight of the
private parts of the body in a lewd or indecent manner in a
public place.’" Wicks, 215 Va. at 276, 208 S.E.2d at
754 (citation omitted) (emphasis added). Based in significant
part on this definition, the Court "construe[d] the first
six words of the Charlottesville . . . Code [, ‘No
person shall indecently expose himself,’] as contemplating an
intentional and indecent exposure in a public place where it is
likely to be seen, whether actually seen by one or
several persons." Id. at 276, 208 S.E.2d at 755
The statute at issue in
this case, Code Sect. 18.2-370, is not a codification of a
common law rule and does not parallel the ordinance addressed in Wicks.
If Wicks has any bearing on this case, it is because the
Supreme Court in applying the common law principle of indecent
exposure recognized the necessity of a visual connotation to
"exposure" by requiring "’that the act is seen
or is likely to be seen by casual observers.’" 215
Va. at 275, 208 S.E.2d at 754 (emphasis added) (quoting Noblett,
194 Va. at 245, 72 S.E.2d at 243).
The evidence in this
case, unlike in Wicks and Noblett, did not prove
that the acts occurred under circumstances where the appellant’s
genitals were seen or even likely to have been seen by the
children. No authority suggests that by proving the appellant
touched the children with his genitals, the Commonwealth is
thereby relieved of its burden of proving beyond a reasonable
doubt that appellant exposed his genitals. His genitals were
neither seen, as required by the ordinary meaning of Code
Sect. 18.2-370, nor "likely to be seen," if
we are required to use the Wicks common law definition of
indecent exposure in a public place. 215 Va. at 276, 208 S.E.2d
at 755 (emphasis added).
Simply put, the
Commonwealth brought this prosecution under the wrong statute.
The Commonwealth proceeded in disregard of the General Assembly’s
repeal of subsection (2) from Code Sect. 18.2-370. Thus, for
these reasons and for the reasons stated in the panel opinion
issued May 5, 1998, I would reverse the convictions.
 Pursuant to Code Sect. 17-116.010
this opinion is not designated for publication.
 The Commonwealth contends on brief and at
oral argument that the appellant is procedurally barred by Rule
5A:18 from raising a separate sufficiency claim as to these two
counts. However, we granted the Commonwealth’s petition to
reconsider the merits of the trial court’s convictions. The panel
satisfactorily addressed the procedural bar issue, and we decline
to reconsider those arguments.