                   COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia


GREGORY ALLEN WINTER
                                         MEMORANDUM OPINION *
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.
     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

occurred.

                      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

record. 1

                                III.

     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
          witness, 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, 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,
            or

              b. The accused causes serious bodily or
            mental injury to the complaining witness, or

              c. The accused uses or threatens to use a
            dangerous weapon.

            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
     1
      B.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



                                 - 4 -
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




                                 - 5 -
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

be advised.
                                        Reversed and dismissed
                                        in part, and reversed
                                        and remanded in part.




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