                               COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Felton and Kelsey
Argued at Chesapeake, Virginia


CHRISTOPHER D. HIRST
                                                              MEMORANDUM OPINION* BY
v.     Record No. 0097-04-1                                   JUDGE WALTER S. FELTON, JR.
                                                                     MAY 3, 2005
COMMONWEALTH OF VIRGINIA


                FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                               James A. Cales, Jr., Judge

                 James C. Hawks (James C. Hawks, P.C., on brief), for appellant.

                 Donald E. Jeffrey, III, Assistant Attorney General (Judith Williams
                 Jagdmann, Attorney General, on brief), for appellee.


       Christopher D. Hirst (appellant) was convicted after a bench trial of obstructing justice,

disorderly conduct, and aggravated sexual battery of M.H., a thirteen-year-old boy, in violation of

Code § 18.2-67.3. On appeal, appellant challenges only the aggravated sexual battery conviction.

He contends the evidence was insufficient to prove that (1) he touched M.H.’s “intimate parts,” as

defined in Code § 18.2-67.10(2), and (2) that he intended to “sexually abuse” M.H., as defined in

Code § 18.2-67.10(6). Finding no error, we affirm the conviction.

                                          BACKGROUND

       “On appeal, we review the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible therefrom.” Archer v. Commonwealth, 26

Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation omitted). We discard the evidence of the

accused in conflict with that of the Commonwealth, and regard as true all the credible evidence


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
favorable to the Commonwealth and all fair inferences that may be drawn from that evidence.

Watkins v. Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998).

        So viewed, the evidence established appellant was drinking at the bar of a restaurant

when thirteen-year-old M.H. entered to return an incorrect take-out order obtained earlier from the

restaurant. M.H.’s mother waited for him in the car outside. Appellant observed M.H. at the

restaurant counter and told him, “Come here.” When M.H. responded “no,” appellant grabbed his

arm, and while holding him with his left hand, placed his right hand on M.H.’s chest and started

rubbing. Appellant then moved his right hand below M.H.’s beltline and inside his underwear.

M.H. testified that appellant touched his pubic hair and rubbed him for roughly “five to six

seconds,” but that appellant did not touch his genitals or “private parts.” M.H. demonstrated to the

trial court how and where appellant touched and rubbed him. M.H. twice told appellant to stop, and

subsequently was able to break away from appellant’s grip. After he was able to get away from

appellant, M.H. took the corrected take-out order, and returned to his mother’s car, telling her what

had happened inside the restaurant. She immediately found a police officer who was in the parking

lot and told him what her son said happened in the restaurant. That officer, and another who was

also in the area, escorted appellant out of the restaurant. M.H. identified appellant as the person

who had assaulted him. The officers described appellant as being uncooperative, belligerent, and

intoxicated.

        At trial, appellant testified he approached M.H. because his pants were too low, but he

denied touching M.H. He admitted he was intoxicated when the events took place. Appellant

argued that M.H. testified appellant touched only his pubic hair, not any of the “intimate parts”

defined in Code § 18.2-67.10(2). The trial court rejected appellant’s argument, and found that

the evidence, including M.H.’s demonstration of how and where appellant touched him, was

sufficient to prove that appellant touched M.H. in his “groin area,” and convicted him of

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violating Code § 18.2-67.3. It sentenced appellant to four years in prison, suspending three years

and eleven months of that sentence. This appeal followed.

                                              ANALYSIS

                                                    I.

        On appeal, appellant contends that the evidence was insufficient to establish that he touched

M.H.’s “intimate parts” as defined in Code § 18.2-67.10(2). He specifically contends that the trial

court erred in concluding that “intimate parts” included M.H.’s pubic hair, because “pubic hair”

is not an enumerated body part described in Code § 18.2-67.10(2). He also contends that the

evidence fails to prove he had the requisite intent to sexually abuse M.H. For the following

reasons, we affirm appellant’s conviction.

                                                   II.

        We will not disturb the conviction by a trial court unless plainly wrong or without

evidence to support it. Code § 8.01-680; McGee v. Commonwealth, 25 Va. App. 193, 197-98,

487 S.E.2d 259, 261 (1997) (en banc). Where there is credible evidence to support the

conviction, we will not substitute our judgment for that of the trial court sitting as the fact finder.

Commonwealth v. Presley, 256 Va. 465, 466, 507 S.E.2d 72, 72 (1998). “This familiar standard

gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony,

to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.”

Kelly v. Commonwealth, 41 Va. App. 250, 257-58, 584 S.E.2d 444, 447 (2003) (en banc). “[I]t

is within the province of the trier of fact,” here the trial court, to determine the credibility of the

witnesses, and such determinations will be disturbed on appeal only if inherently incredible.

Correll v. Commonwealth, 42 Va. App. 311, 323, 591 S.E.2d 712, 718 (2004) (citations

omitted).




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        Code § 18.2-67.3 defines aggravated sexual battery as the “sexual abuse” of a victim who

is at least thirteen but less than fifteen years old, against the victim’s will by force, threat, or

intimidation. 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 “[t]he accused intentionally touches the

complaining witness’s intimate parts or material directly covering such intimate parts.”

(Emphasis added). “Intimate parts” is defined in Code § 18.2-67.10(2) as “the genitalia, anus,

groin, breast, or buttocks of any person.” (Emphasis added).

        M.H., thirteen at the time of the events, testified appellant touched his pubic hair but not

his “private parts” or genitals. He further testified that appellant’s hand remained on his pubic

hair, “rubbing” for “about five to six seconds” while he tried to get away. During his testimony,

M.H. physically demonstrated to the trial court the exact manner and location of appellant’s

touching and “rubbing.” From that testimony, the trial court expressly found that “the young

man [victim] showed he was touched in the groin1 area, in the groin, on the groin, when he put

his hand, where he put it . . . .” Appellant testified that M.H. came “into the restaurant with his

pants down to about his knees” and that he “wouldn’t pull his pants up.” Appellant said he

approached M.H. because his pants were hanging too low. When the trial court specifically

asked him if he had “touched” M.H., appellant stated, “No, sir, definitely not, not that I’m aware

of.” The trial court noted that appellant did not maintain he was trying to pull M.H.’s pants up.

As a result, the only testimony before the trial court concerning the touching was that of M.H.

        From the record, it is clear that the trial court found M.H.’s testimony credible, while

discounting appellant’s testimony that he never touched M.H. See Correll, 42 Va. App. at 323,


        1
          The “groin” is defined as “the junctional region between the thigh and the abdomen,”
Dorland’s Illustrated Medical Dictionary 899 (29th ed. 2000), or “the fold or depression marking
the line between the lower part of the abdomen and the thigh.” Webster’s Third New
International Dictionary 1001 (2002).

                                                  -4-
591 S.E.2d at 718. “A fact finder may discount an accused’s self-serving explanation as a mere

effort at ‘lying to conceal his guilt.’” Dugger v. Commonwealth, 40 Va. App. 586, 594 n.2, 580

S.E.2d 477, 481 n.2 (2003) (quoting Shackleford v. Commonwealth, 262 Va. 196, 209, 547

S.E.2d 899, 907 (2001)).

       The trial court reasonably concluded from the evidence presented to it, including M.H.’s

demonstration of where and how appellant rubbed him, that appellant reached his hand into

M.H.’s underwear, touched his pubic hair and rubbed his groin area, an “intimate part” defined

in Code § 18.2-67.10(2).

                                                 III.

       Appellant also contends the evidence was insufficient to prove that he had the requisite

intent to “sexually molest, arouse, or gratify any person” as defined in Code § 18.2-67.10.

       “‘Intent may, and most often must, be proven by circumstantial evidence and the reasonable

inferences to be drawn from proven facts are within the province of the trier of fact.’” Holley v.

Commonwealth, 38 Va. App. 158, 165, 562 S.E.2d 351, 354-55 (quoting Summerlin v.

Commonwealth, 37 Va. App. 288, 297, 557 S.E.2d 731, 736 (2002)). “‘Intent may be shown by a

person’s conduct and by his statements.’” Id. at 165, 562 S.E.2d at 355 (quoting Summerlin, 37

Va. App. at 297-98, 557 S.E.2d at 736). Based on our review of the record, considered in the light

most favorable to the Commonwealth, as our standard of review requires, we conclude that the trial

court could reasonably conclude that appellant intended to sexually molest M.H. by reaching his

hand into M.H.’s underwear and rubbing his groin area, an “intimate part” of his body, for five to

six seconds.

       Appellant contends that evidence at trial showed that in his drunkenness, he took offense at

M.H.’s “sloppy appearance,” and specifically at the way he wore his pants. He further argues that

all the activity took place in an open restaurant where people were in close proximity to what was

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happening, and he made no utterance suggesting any sexual intent. Appellant cites no authority or

principles of law as to how these circumstances demonstrate he lacked the requisite intent to

sexually molest M.H. “‘Statements unsupported by argument, authority, or citations to the record

do not merit appellate consideration.’” Budnick v. Budnick, 42 Va. App. 823, 833-34, 595 S.E.2d

50, 55 (2004) (quoting Roberts v. Roberts, 41 Va. App. 513, 527, 586 S.E.2d 290, 297 (2003)); see

Rule 5A:20 (requiring appellants to brief the “principles of law, the argument, and the authorities

relating to each question presented”).

       Having presented no citations or authority in his brief in support of these contentions, Hirst

has waived these arguments on appeal and we need not address them. See Rule 5A:20(e).

       Accordingly, we conclude that the trial court did not err in finding that the evidence was

sufficient to find appellant possessed the requisite criminal intent to sexually molest M.H.

                                                 IV.

       For the above reasons, we affirm the trial court’s conviction of appellant of aggravated

sexual battery.

                                                                                            Affirmed.




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