Criminal – Clothed grab-and-shake of genital area wasn’t obscene sexual display

Where no reasonable observer would have perceived the defendant’s clothed grab-and-shake of his genital area, directed at a known adversary in a context of longstanding hostile confrontation, as an unambiguous imitation of masturbation, his obscene sexual display convictions were dismissed.

Background

James David Hazelwood appeals the circuit court’s denial of his motion to strike two counts of obscene sexual display (Code § 18.2-387.1), and three counts of violation of a protective order (Code § 18.2-60.4).

Obscene sexual display

Hazelwood argues the evidence was insufficient to prove he engaged in explicitly simulated acts of masturbation, contending that conviction requires conduct that a reasonable observer would perceive as an unambiguous imitation of the physical act of masturbation, not merely a clothed grab or hostile gesture involving the genital area.

Under Code § 18.2-387.1, to constitute an “explicitly simulated” act of masturbation, the conduct must, as perceived by a reasonable observer, unambiguously imitate the physical act of masturbation. These words, read in combination, require conduct that a reasonable observer could not plausibly mistake for anything other than an imitation of masturbation.

In determining whether that standard is met when the charged conduct involves clothed contact with the genital area, this court considers the following objective indicia: (1) a sustained, repetitive or stroking motion of the hand over or upon the genital area, as distinguished from a single grab, shake or thrust; (2) verbal conduct, sounds or facial expressions consistent with sexual arousal or solicitation rather than hostility or contempt and/or (3) circumstances that foreclose a reasonably plausible nonprurient explanation, such as an established adversarial relationship between the defendant and the target.

For purposes of this indicium, an adversarial relationship is “established” only where the record contains objective evidence of documented prior conflict, such as a prior protective order, prior criminal complaint, prior judicial proceeding or a sustained course of hostile conduct reflected in the testimony of percipient witnesses.

For ease of reference, this court refers to these as the first indicium (the character of the hand movement over the genital area), the second indicium (accompanying verbal conduct, sounds, or facial expressions consistent with sexual arousal or solicitation), and the third indicium (relational context, including any documented adversarial history that bears on whether a reasonable observer would perceive a prurient rather than non-sexual hostile purpose).

The weight accorded the third indicium is therefore proportional to the degree to which the first two indicia leave the character of the act in genuine equipoise, and where the first or second indicium is strongly satisfied, as when the record establishes a sustained, repetitive stroking motion or verbal conduct plainly consistent with sexual arousal, the existence of a prior adversarial relationship does not, standing alone, negate the explicitly simulated character of the conduct.

Here, the evidence was insufficient to support the two obscene sexual display convictions. No reasonable observer would have perceived Hazelwood’s conduct, a brief, clothed grab-and-shake directed at a known adversary in a context of longstanding hostile confrontation, as an unambiguous imitation of masturbation, actual or feigned; the convictions therefore fail the “explicitly simulated” requirement. The evidence was also insufficient to establish that the conduct, considered as a whole, had as its dominant theme an appeal to the prurient interest in sex, as the obscenity element independently requires.

Reversal of both Code § 18.2-387.1 convictions is required on either ground independently. When a conviction is reversed for evidentiary insufficiency, the Double Jeopardy Clause bars retrial, and the proper remedy is dismissal rather than remand for a new trial.

Contact

Hazelwood argues the evidence was insufficient to support his three convictions for violation of a protective order, as the conduct did not amount to “contact” with Charles. This court disagrees. “Contact” under the protective order statutes at issue encompasses both direct and indirect contacts intentionally aimed by the respondent at the petitioner – i.e., acts that “intentionally pierce the protective barrier between the petitioner and the respondent fashioned by the protective order.” Here, the evidence raised factual questions for the jury, the jury resolved those questions and its determinations were not plainly wrong.

Affirmed in part, reversed and dismissed in part and remanded.

Hazelwood v. Commonwealth, Case No. 2013-24-1, June 9, 2026. CAV (Bernhard). From the Circuit Court of the City of Hampton (Gaten). Marisa E. Mancini, Assistant Public Defender (Brooke N. Carroll, Assistant Public Defender, on briefs), for appellant. Kelly L. Sturman, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee. VLW 026-7-234. 31 pp.

Full-Text Opinion
VLW 026-7-234