COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
GREGORY ALLEN WINTER
v. Record No. 0172-96-1 BY JUDGE JOSEPH E. BAKER
MARCH 11, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY
Fred W. Bateman, Judge Designate
Walter C. Whitt, Jr. (Walter C. Whitt, Jr.,
P.C., on brief), for appellant.
Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Gregory Allen Winter (appellant) appeals from his bench
trial convictions by the Circuit Court of Gloucester County
(trial court) for two counts of aggravated sexual battery in
violation of Code ? 18.2-67.3. Appellant was also convicted for
one count of sexual abuse by a person in a custodial relationship
to the victim in violation of Code ? 18.2-370.1. We granted an
appeal only on the question of whether there was sufficient
evidence to support appellant’s convictions for aggravated sexual
battery in violation of Code ? 18.2-67.3.
As the parties are fully cognizant of the record, we
reference only those facts that are necessary to an understanding
of this opinion.
*Pursuant to Code ? 17-116.010 this opinion is not
designated for publication.
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There are two victims in these cases: D.A., age fourteen at
the time of the alleged offense, and B.H., ages fourteen and
fifteen at the time the offenses against her are alleged to have
I. Offense Against D.A.
Appellant and D.A. resided in trailers located next to each
other. On a day in April 1995, at appellant’s request, D.A.
agreed to clean his trailer. As she was washing dishes,
appellant started “touching” her breast. When she told him to
stop, he immediately stopped and expressed sorrow for his act.
When D.A. finished vacuuming, she was instructed by
appellant to place the vacuum cleaner in his bedroom where he
“pushed [her] down on the bed,” “tried to go up [her] shirt,” and
“tried to unbutton [her] pants.” D.A. told appellant to stop and
succeeded in thwarting his attempts because her mother was heard
knocking at the trailer door which appellant had locked.
II. Offense Against B.H.
Prior to the indictment charging that appellant violated
Code ? 18.2-67.3, B.H., without pressure or inducement, gave the
police a written, signed statement accusing appellant of unlawful
conduct toward her. However, at trial she recanted, saying that
the statement was not true and refused to repeat what she had
said in the statement. Ordered by the trial court to read the
statement, she complied but immediately repeated that the
accusations were false.
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No substantive evidence of appellant’s violation of Code
? 18.2-67.3, with respect to either victim, is contained in this
Code ? 18.2-67.3 provides:
Aggravated sexual battery. A. An accused
shall be guilty of aggravated sexual battery
if he or she sexually abuses the complaining
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, or through the use of the
complaining witness’s mental incapacity or
physical helplessness, and
a. The complaining witness is at least
thirteen but less than fifteen years of age,
b. The accused causes serious bodily or
mental injury to the complaining witness, or
c. The accused uses or threatens to use a
B. Aggravated sexual battery is a felony
punishable by confinement in a state
correctional facility for a term of not less
than one nor more than twenty years and by a
fine of not more than $100,000.
In relevant part, Code ? 18.2-67.10(6) defines “sexual abuse” as
“an act committed with the intent to sexually molest, arouse, or
gratify any person, where: . . . the accused intentionally
1B.H. did testify to evidence that supported the sexual
abuse by a person in a custodial relationship violation, and an
appeal from that conviction was denied.
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touches the complaining witness’s intimate parts or material
directly covering such intimate parts . . . .”
Appellant argues on appeal that no forceful touching of an
intimate part of either complaining witness is shown by this
record. Because the victims here are over thirteen years of age,
the Commonwealth must prove the act of aggravated sexual battery
was accomplished “by force, threat or intimidation.” Johnson v.
Commonwealth, 5 Va. App. 529, 533, 365 S.E.2d 237, 239-40 (1988).
As in Johnson, to support the convictions in this case, the
record must disclose that the acts of which appellant stands
accused must have been “accomplished against the will of the
complaining witness by force.” Id.
In oral argument, the Commonwealth conceded that the record
fails to disclose in either case that appellant’s touching of an
intimate part of the victim was accomplished by force. However,
the Commonwealth contends that this Court ought not consider
whether the necessary force was used because at trial appellant
failed to raise that issue either by motion to strike or in his
final argument requesting acquittals. Therefore, the
Commonwealth asserts that Rule 5A:18 bars our consideration of
the sufficiency issue.
We have held on numerous occasions that where an appellant
fails to state the alleged error with specificity to the trial
court, he or she will not be heard to complain on appeal. Rule
5A:18; see Miller v. Commonwealth, 22 Va. App. 497, 471 S.E.2d
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780 (1996); Campbell v. Commonwealth, 12 Va. App. 476, 405 S.E.2d
1 (1991). However, we have also held that where the error was
not stated with the required specificity, yet the evidence
clearly fails to show that the accused is guilty of the crime of
which he or she was convicted, we will invoke the ends of justice
provision of Rule 5A:18 and reverse the conviction. See Brown v.
Commonwealth, 8 Va. App. 126, 380 S.E.2d 8 (1989); Reed v.
Commonwealth, 6 Va. App. 65, 366 S.E.2d 274 (1988); Johnson, 5
Va. App. 529, 365 S.E.2d 237.
The Commonwealth contends that because the evidence
presented in support of appellant’s conviction involving D.A.
also discloses that if appellant had been charged and convicted
of attempted rape that conviction would be supported by the
evidence and, therefore, the ends of justice issue ought not be
invoked here. We disagree. We do not here decide whether
appellant could have been successfully prosecuted for attempted
rape. If attempted rape was the crime committed, we merely
observe that the accused should have been indicted and tried for
that offense. In this case, on this evidence, we hold that the
evidence is insufficient to support the crimes of which appellant
was convicted under Code ? 18.2-67.3. See Johnson, 5 Va. App.
529, 365 S.E.2d 237.
Accordingly, because neither record discloses evidence
sufficient to support the indictments, we reverse the
convictions. As to the charge involving B.H., we reverse and
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dismiss appellant from further prosecution. As to the charge
involving D.A., we reverse and remand the case to the
trial court for such further proceeding as the Commonwealth may
Reversed and dismissed
in part, and reversed
and remanded in part.