                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Lemons
Argued at Richmond, Virginia


PATRICK CULLEN ADSIT
                                        MEMORANDUM OPINION * BY
v.         Record No. 0882-98-2         JUDGE DONALD W. LEMONS
                                           FEBRUARY 9, 1999
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                Joseph F. Spinella, Judge Designate
           N. Russell Scohy (Russell and Associates,
           P.C., on brief), for appellant.

           Kathleen B. Martin, Assistant Attorney
           General (Mark L. Earley, Attorney General, on
           brief), for appellee.



     Patrick Cullen Adsit was convicted of animate object sexual

penetration, in violation of Code § 18.2-67.2, and sentenced to

fifteen years in prison with seven years suspended.    On appeal he

contends that the evidence fails to support his conviction.   We

agree and reverse the judgment of the trial court.

     On the evening of January 15, 1996, the victim, a

fourteen-year-old girl, was spending the night at the home of her

friend.   Patrick Cullen Adsit, appellant, aged twenty-five at

that time, was living in that home.   Adsit's "bed" was a couch in

the living room where a television was located.   At 2:00 a.m. the

victim and her friend joined Adsit on his "bed" and watched

horror movies on television.   Adsit lay on the couch while the

     *
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
victim sat in front of him.   The victim's friend sat at the other

end of the couch.

     Adsit began rubbing the victim's left leg and then her

breasts without resistance or complaint from the victim.   He then

placed his hand inside her underpants and inserted his fingers

into her vagina.    During this encounter, which lasted between ten

and fifteen minutes, the friend exited the room, went to the

bathroom, and returned to the couch.    There was another adult in

the house at the time.
     The greater portion of the evidence at trial was testimony

from the victim.    The following statements by the victim are the

only evidence in the record concerning intimidation and force:
          "Then he put his hand in my panties and
          started to rub my vagina".

          "Then he stuck his fingers in my vagina."

          "I started to move away from him."

          "The way he had his hand underneath my leg, I
          couldn't shut my legs."


On cross-examination the following exchange took place:
          Q:   Did he ever use any force or threat or
               weapon against you to force you to stay
               there?

          A.   No, except that I couldn't move my legs.


     After ten to fifteen minutes had elapsed, the incident ended

when Adsit said, "What are we doing?" and she replied, "I have no

idea what you're doing," and she got up off the couch without any

difficulty and without restraint.   She went into the bathroom and




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then returned to the couch where Adsit was still present and her

friend was sleeping.   The next day she told her friend and the

friend told the friend's mother.   The incident was reported to

the police.

     Code § 18.2-67.2 provides in part:

          Object sexual penetration; penalty. --
          A. An accused shall be guilty of inanimate
          or animate object sexual penetration if he or
          she penetrates the labia majora or anus of a
          complaining witness who is not his or her
          spouse with any object, other than for a bona
          fide medical purpose, or causes such
          complaining witness to so penetrate his or
          her own body with an object or causes a
          complaining witness, whether or not his or
          her spouse, to engage in such acts with any
          other person or to penetrate, or to be
          penetrated by, an animal, 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.


     There being no evidence of threat, the only issue presented

in this case is whether the act was accomplished against the will

of the victim by force or intimidation.

     In Bivins v. Commonwealth, 19 Va. App. 750, 752-53, 454

S.E.2d 741, 742 (1995), we gave a definition to "intimidation,"

noting that
          [i]ntimidation results when the words or
          conduct of the accused exercise such
          domination and control over the victim as to
          overcome the victim's mind and overbear the



                               - 3 -
          victim's will, placing the victim in fear of
          bodily harm. Intimidation differs from
          threat in that it occurs without an express
          threat by the accused to do bodily harm.

(Citations omitted).


     Previously, in Harris v. Commonwealth, 3 Va. App. 519, 351

S.E.2d 356 (1986), we noted that the "fear of bodily harm,

however, must result from the words or conduct of the accused

rather than the temperamental timidity of the victim."      Id. at

521, 351 S.E.2d at 357.   See also Sutton v. Commonwealth, 228 Va.

654, 663-64, 324 S.E.2d 665, 669-70 (1985).
     There is no evidence in this record to support the

conclusion that Adsit by words or conduct exercised "such

domination and control" over the victim as to overcome her will

or place her in fear of bodily harm.   When the victim decided to

get up from the couch nothing prevented her from doing so.     After

a brief visit to the bathroom, the victim returned to the couch.

     Having determined that intimidation was not present in this

incident, the remaining question is whether the act was

accomplished by the use of force.   Previously, in a case

interpreting the word "force" as it is used in Code § 18.2-67.3

(aggravated sexual battery), we stated in Johnson v.
Commonwealth, 5 Va. App. 529, 534, 365 S.E.2d 237, 240 (1988),
          [t]he issue is whether, on the facts of this
          case a mere nonconsensual touching of the
          intimate parts of the complaining witness
          comes within the statutorily defined criminal
          act or whether some additional force is
          required. . . . [W]e conclude from the
          language of the statutes that the legislature
          intended some force other than merely that



                               - 4 -
          force required to accomplish the unlawful
          touching to be included within the
          statutorily defined criminal acts of either
          sexual battery or aggravated sexual battery.


We adopt the same definition of "force" for the purposes of Code

§ 18.2-67.2.

     Considering the victim's testimony that "the way he had his

hand underneath my leg, I couldn't shut my legs" and her

acknowledgment that except for her inability to shut her legs, no

"force or threat or weapon" was used to "force [her] to stay

there," we must speculate whether the force utilized was greater

than that required to accomplish the act.   Because Adsit's

fingers are necessarily connected to his hand, if the victim's

inability to close her legs was the result of the presence of his

hand and nothing more, the additional force necessary to convict

Adsit of the felony of object sexual penetration is not present.

If "the way he had his hand underneath [her] leg" involved more

force than necessary to accomplish the act, the evidence would

support the conviction.   The dissent suggests that force was

applied "by using his hand to spread the victim's legs."    If the

record supported such an observation, we would affirm the

conviction.    Simply stated, the burden of proof is upon the

Commonwealth, and a failure of proof cannot be cured by appellate

speculation.
     We are mindful that twenty-five-year-old Adsit's conduct

with a fourteen-year-old-girl was reprehensible.   We are also

mindful that he was convicted of misdemeanor battery as a result



                                - 5 -
of this incident.   However, the issue before us is whether, on

this record, Adsit is also guilty of the felony of object sexual

penetration.   Given the record of this case and the law of the

Commonwealth, we must conclude that he is not, and we reverse his

conviction.

                                         Reversed and dismissed.




                               - 6 -
Willis, J., dissenting.

     By using his hand to spread the victim's legs, Adsit

accomplished the insertion of his finger into her vagina.

However, the force applied by Adsit to spread the victim's legs

went beyond the force specifically required to accomplish the

insertion itself.   In my view, the evidence of that circumstance

supports a finding that the insertion was accomplished by force.

I would affirm the judgment of the trial court.




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