v. COMMONWEALTH OF VA
v. COMMONWEALTH OF VA
April 17, 1998
Record No. 971645
THOMAS E. HORTON,
Record No. 971576
GEORGE R. NEWBY, JR.
OPINION BY JUSTICE
CYNTHIA D. KINSER
FROM THE COURT OF APPEALS OF VIRGINIA
Present: All the
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.
STANDARD OF REVIEW
standard of review is as follows:
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.
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.
On February 6, 1996,
H.H., 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. Even before seeing his face, H.H. had
recognized Horton's voice.
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?
Q. With his tongue?
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 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
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.
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
The victim in this
 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 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. 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
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,'
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.
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
assault and in the course of his effort to moisten her genitalia.
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. "[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. 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 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.
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 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.
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 "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 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.
For these reasons,
we will affirm the judgment of the Court of Appeals in each case.
 Full name deleted by the
 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.
 Full name deleted by the
 The jury also convicted Newby
of inanimate object sexual penetration and rape. These
convictions are not before the Court on this appeal.
 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.