Virginia Lawyers Weekly VA Lawyers Weekly
Appellant’s conviction of forcible sodomy accomplished through the use of the complaining witness’s physical helplessness is affirmed. Appellant’s own testimony established the penetration element of the crime.
His own testimony
“Costas contends that the circuit court erred in denying his motion to strike. The sole basis of Costas’ motion to strike on the charge of forcible sodomy was his contention that the evidence is insufficient to prove the element of penetration. …
“As the circuit court found, proof of the element of penetration was provided by the victim’s testimony and by Costas’ own testimony. The victim used the diagram in Commonwealth’s Exhibit 1 to show that Costas licked her entire vaginal area. Thus, the victim’s testimony established penetration of the vulva. Costas testified that he stimulated the victim’s clitoris with his tongue.
“Given that ‘stimulation of the clitoris is sufficient to establish penetration,’ … Costas’ own testimony provided proof of penetration. Costas also marked the diagram to identify the area that he touched with his tongue.
“As the circuit court found, the area that Costas marked on the diagram ‘is very much decidedly within the inner part of a woman’s genitalia.’ Therefore, the evidence is sufficient to prove the element of penetration.”
Affirmed.
Costas v. Commonwealth, Record No. 1010-21-1, Aug. 23, 2022. CAV (Chaney) From the Circuit Court of the City of Williamsburg and the County of James City (Smith). Charles E. Haden for appellant. Liam A. Curry, Jason S. Miyares for appellee. VLW 022-7-345, 6 pp.
