                      COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Clements and Senior Judge Coleman
Argued at Richmond, Virginia


EDWARD EUGENE COX, S/K/A
 EDWARD EUGENE COX, JR.
                                         MEMORANDUM OPINION * BY
v.   Record No. 1898-00-2                  SAM W. COLEMAN III
                                              AUGUST 13, 2002
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
                Rayner V. Snead, Judge Designate

          Benjamin H. Woodbridge, Jr. (Woodbridge,
          Ventura & Kelly, on brief), for appellant.

          Eugene Murphy, Assistant Attorney General
          (Randolph A. Beales, Attorney General, on
          brief), for appellee.


     Edward Eugene Cox, Jr. was convicted in a jury trial of

aggravated sexual battery in violation of Code

§ 18.2-67.3(2)(a).   On appeal, Cox contends that the evidence is

insufficient to support his conviction because the proof failed

to establish that he touched the victim or forced her to touch

his intimate parts as defined by Code § 18.2-67.10(2).    He

further asserts that the trial court erred by inserting language

in Instruction Number 9 which allowed the jury to convict if

they found that he forced the complaining witness to touch his


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
intimate parts or material directly covering such intimate

parts.   He argues the evidence failed to support the giving of

such an instruction because no evidence proved that the victim

touched the defendant's intimate parts or material directly

covering his intimate parts or that Cox intended to force such a

touching.   Finding no reversible error, we affirm.

                            BACKGROUND

     On appeal, we review the evidence and all reasonable

inferences fairly deducible therefrom in the light most

favorable to the Commonwealth.     Archer v. Commonwealth, 26

Va. App. 1, 11, 492 S.E.2d 826, 831 (1997).    So viewed, the

evidence proved that during the evening hours of July 17, 1999,

a man assaulted the victim, a thirteen-year-old girl, as she

walked alone searching for a bathroom at the Indian Acres

Planned Camping Community, where she was visiting her mother.

The victim, while looking for the bathroom, "took a wrong turn"

and came to an area where she encountered the man who grabbed

her and pulled her to the ground.    The assailant positioned

himself with his legs astraddle of her body with her hands

pinned down.   She testified that her assailant then placed his

hand beneath her shirt and "under [her] bra."    As the assailant

placed his hand under her bra, his fingernail scratched the

victim in the area between her breasts.    The victim demonstrated

for the jury and the trial court the location of the scratch.


                                 - 2 -
She stated that her assailant smelled of alcohol.      The victim

testified that her assailant fled after her screams alerted

neighbors.

     She testified that she saw and was able to identify Cox as

her assailant by the light from a nearby lamppost.      She further

testified that she was familiar with Cox, having seen him a

number of times at the campsite pool.

     A security guard at the campsite was contacted and learned

from the victim what had happened.       The security guard notified

a deputy sheriff, who interviewed the victim about the incident.

After interviewing the victim, the security guard went to Cox's

trailer located in the campsite.    According to the deputy, Cox

smelled of alcohol, had bloodshot eyes and "he was staggering."

     At trial, the security guard testified that when she

interviewed the victim at her trailer she observed a seven-inch

scratch "between her breasts."

     The jury convicted Cox of aggravated sexual battery.

                            ANALYSIS

                   Sufficiency of the Evidence

     To convict Cox of aggravated sexual battery, the

Commonwealth had to prove beyond a reasonable doubt that he

"sexually abuse[d] the complaining witness, . . . and [t]he act

[was] accomplished against the will of the complaining witness,




                                 - 3 -
by force, . . . and [t]he complaining witness [was] at least

thirteen but less than fifteen years of age."   Code § 18.2-67.3.

     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:

           a. The accused intentionally touches the
           complaining witness's intimate parts or
           material directly covering such intimate
           parts;

           b. The accused forces the complaining
           witness to touch the accused's, the
           witness's own, or another person's intimate
           parts or material directly covering such
           intimate parts; or

           c. The accused forces another person to
           touch the complaining witness's intimate
           parts or material directly covering such
           intimate parts.

     Code § 18.2-67.10(2) defines "intimate parts" as "the

genitalia, anus, groin, breast, or buttocks of any person."

Thus, the Commonwealth may prove a violation of Code § 18.2-67.3

by proving that the accused intentionally touched the victim's

"intimate parts or material directly covering such intimate

parts."   Code § 18.2-67.10(6).

     It is axiomatic that the Commonwealth bears the burden of

proving each element of an offense beyond a reasonable doubt.

Hill v. Commonwealth, 17 Va. App. 480, 484, 438 S.E.2d 296, 298

(1993).   However, the Commonwealth need not prove each element

by direct evidence; instead, it may prove an element by



                                  - 4 -
circumstantial evidence, Reynolds v. Commonwealth, 9 Va. App.

430, 440, 388 S.E.2d 659, 665 (1990), which is entitled to the

same weight as direct evidence.     Hall v. Commonwealth, 14

Va. App. 65, 69, 415 S.E.2d 439, 442 (1992).    The fact finder

may draw reasonable inferences from circumstantial evidence and

may determine the weight to be ascribed to such evidence.

Schneider v. Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735,

736-37 (1985); Cook v. Commonwealth, 226 Va. 427, 432, 309

S.E.2d 325, 329 (1983).

        At trial the Commonwealth proved that appellant forced the

victim to the ground, face-up, and straddled her; that while

holding her down, appellant reached into her shirt and under her

bra; that with his hand under her bra, appellant's fingernail

made a seven-inch scratch between the victim's breasts.    The

jury and the trial judge observed the victim demonstrate the

location of the scratch.    From this evidence the fact finder

could conclude that Cox necessarily touched the victim's breast,

the portion of the bra or material that covers the breast, or

both.    The deliberate touching of either the breast or portion

of the material that covers the breast constitutes "sexual

abuse" and is a violation of Code § 18.2-67.10(6).

        Cox contends that the victim did not testify explicitly

that he touched her breast or the material that covered her

breast, thus, the evidence does not prove beyond a reasonable


                                 - 5 -
doubt an actual touching.   The evidence that Cox pulled the

victim to the ground, pinned her there by straddling her, placed

his hand under her blouse and under her bra and inflicted a

seven-inch scratch between her breasts is sufficient for the

fact finder to conclude that Cox touched the victim's breast or

material directly covering her breast.   When viewed in the light

most favorable to the Commonwealth, the circumstantial evidence

was sufficient to establish beyond a reasonable doubt that

appellant touched the victim's intimate parts or the material

directly covering such intimate parts.

                     Jury Instruction Number 9

     The trial judge modified the proffered jury instruction

defining "sexual abuse."    The proffered instruction initially

defined "sexual abuse" only as "an act committed with the intent

to sexually molest, arouse or gratify any person, where the

defendant intentionally touches the complaining witness'

intimate parts or material directly covering such intimate

parts."   The Commonwealth moved that the instruction be modified

to include those acts of "sexual abuse" set forth in Code

§ 18.2-67(6)(b), namely, where "[t]he accused forces the

complaining witness to touch the accused's . . . intimate parts

or material directly covering such intimate parts."

     In support of giving the instruction, the Commonwealth

relied upon the evidence that appellant forced the victim to the


                                - 6 -
ground, sat on top of her and straddled her legs, and in doing

so forced her body to come in contact with or touch the clothing

touching his groin and genitalia and that Cox was doing so with

the intent to sexually arouse or gratify himself.

       "A reviewing court's responsibility in reviewing jury

instructions is to 'see that the law has been clearly stated and

that the instructions cover all issues which the evidence fairly

raises.'"    Darnell v. Commonwealth, 6 Va. App. 485, 488, 370

S.E.2d 717, 719 (1988) (quoting Swisher v. Swisher, 223 Va. 499,

503, 290 S.E.2d 856, 858 (1982)).   "On appeal, when the issue is

a refused jury instruction, we view the evidence in the light

most favorable to the proponent of the instruction."     Lynn v.

Commonwealth, 27 Va. App. 336, 344, 499 S.E.2d 1, 4-5 (1998),

aff'd, 257 Va. 239, 514 S.E.2d 147 (1999).    "A party is entitled

to have the jury instructed according to the law favorable to

his or her theory of the case if evidence in the record supports

it."    Foster v. Commonwealth, 13 Va. App. 380, 383, 412 S.E.2d

198, 200 (1991).   However, an instruction is proper only if

supported by more than a scintilla of evidence.     Commonwealth v.

Donkor, 256 Va. 443, 445, 507 S.E.2d 75, 76 (1998).

       Viewed in the light most favorable to the Commonwealth, the

proponent of the instruction, see Foster, 13 Va. App. at 383,

412 S.E.2d at 200, the evidence proved that Cox grabbed the

victim and pulled her to the ground.    As she lay with her back


                                - 7 -
pinned to the ground, Cox "got on top" of her and placed "one

leg on each side" of her body.    According to the victim, "his

legs were over mine."

     Considering the nature of Cox's assault upon the victim, a

reasonable fact finder could conclude that by forcibly

straddling the victim Cox intended to cause the victim's body to

touch the material directly covering his "groin" or "genitalia"

and that he did so with the intent to sexually arouse or gratify

himself.   See Code § 18.2-67.10(2).     Thus, the instruction was

supported by more than a scintilla of evidence.     Accordingly, we

affirm appellant's conviction.

                                                            Affirmed.




                                 - 8 -
Benton, J., dissenting.

                               I.

     To obtain a conviction in a criminal prosecution, the

Commonwealth must satisfy the due process requirement of proving

each element of an offense beyond a reasonable doubt.    In re

Winship, 397 U.S. 358, 363 (1970).

             Fundamental principles applicable here
          should be reviewed. To justify conviction
          of a crime, it is insufficient to create a
          suspicion or probability of guilt. Rather,
          the burden is upon the Commonwealth to prove
          every essential element of the offense
          beyond a reasonable doubt. "The evidence
          must exclude every reasonable hypothesis of
          innocence and be consistent only with the
          guilt of the accused."

Moore v. Commonwealth, 254 Va. 184, 186, 491 S.E.2d 739, 740

(1997) (citation omitted).

     The evidence failed to prove that when Cox assaulted the

teenager he touched her breast or the portion of her brassiere

covering her breasts.   When the teenager testified, she did not

say Cox touched her breast or the portion of her brassiere

covering her breasts.   Indeed, she testified and the evidence

clearly proved that Cox scratched the portion of her body

between her breasts.

     When as here, the statute prohibits touching "intimate

parts," proof that the touching was close to the intimate part

or in an area proximate to it is insufficient to establish the



                               - 9 -
element of the offense.   Cf. Moore, 254 Va. at 189, 491 S.E.2d

at 741 (holding that proof establishing "the man's penis is

placed on, not in, the woman's sexual organ is insufficient to

establish the element of penetration"); Ashby v. Commonwealth,

208 Va. 443, 444, 158 S.E.2d 657, 658 (1968) (holding that proof

a person's mouth is on another's penis is insufficient to prove

the penis is in the mouth).

           "There is always in litigation a margin of
           error, representing error in factfinding,
           which both parties must take into account.
           Where one party has at stake an interest of
           transcending value – as a criminal defendant
           his liberty – this margin of error is
           reduced as to him by the process of placing
           on the other party the burden of . . .
           persuading the factfinder at the conclusion
           of the trial of his guilt beyond a
           reasonable doubt. Due process commands that
           no man shall lose his liberty unless the
           Government has borne the burden of . . .
           convincing the factfinder of his guilt." To
           this end, the reasonable-doubt standard is
           indispensable, for it "impresses on the
           trier of fact the necessity of reaching a
           subjective state of certitude of the facts
           in issue."

Winship, 397 U.S. at 364 (citations omitted).   The

Commonwealth's evidence, which proved only touching proximate to

the breasts, created only a suspicion or probability of guilt as

to the essential element of touching an intimate part of the

body.   See Moore, 254 Va. at 186, 491 S.E.2d at 740.

"[C]ircumstances of suspicion, no matter how grave or strong,

are not proof of guilt sufficient to support a verdict of guilty


                              - 10 -
. . . [because the] actual commission of the crime by the

accused must be shown by evidence beyond a reasonable doubt to

sustain . . . [a] conviction."     Clodfelter v. Commonwealth, 218

Va. 619, 623, 238 S.E.2d 820, 822 (1977).

     Because the evidence failed to prove beyond a reasonable

doubt that Cox "touche[d] the complaining witness's [breast] or

material directly covering such [breasts]," Code

§ 18.2-67.10(6), I would reverse the conviction for aggravated

sexual battery in violation of Code § 18.2-67.3.

                                 II.

     I would also note that the trial judge plainly erred in

instructing the jury.    The evidence proved the trial judge

instructed the jury, at the prosecutor's request, that it could

convict Cox of aggravated sexual abuse if it found that "the

complaining witness was forced to touch the intimate parts of

the accused or material directly covering such intimate parts."

The evidence concerning these events proved that Cox grabbed the

teenager and threw her to the ground.    She was wearing a shirt

and long pants.    She described the events in the following

testimony:

             Q . . . . And the person that grabbed you
             pulled you to the ground. What -- where
             were they?

             A They were –- when they got me on the
             ground, he got on top of me.



                                - 11 -
           Q   And which part of him was on top of you?

           A   His -- he had one leg on each side of me.

           Q And where then -- do you remember where
           his hands and arms were and where yours
           were?

           A Yes, mine was –- he had –- mine were down
           and his legs were over mine. . . .

In other words, the teenager's testimony proved Cox "had one leg

on each side of [her]" such that her hands and arms "were down

and his legs were over [her hands and arms]."

     The rule is well established that even if an instruction

correctly states the law, it should not be given if it is not

applicable to the evidence proved in the case.    See Banner v.

Commonwealth, 204 Va. 640, 647-48, 133 S.E.2d 305, 310 (1963);

Latham v. Commonwealth, 184 Va. 934, 939, 37 S.E.2d 36, 38

(1946); Thomason v. Commonwealth, 178 Va. 489, 498, 17 S.E.2d

374, 377 (1941); Morse v. Commonwealth, 17 Va. App. 627, 632,

440 S.E.2d 145, 149 (1994).   Thus, "an instruction is proper

only if supported by more than a scintilla of evidence" in the

record.   Commonwealth v. Sands, 262 Va. 724, 729, 553 S.E.2d

733, 736 (2001).   Indeed, the trial judge errs by giving an

instruction that is not supported by the evidence.     Gravitt v.

Ward, 258 Va. 330, 337, 518 S.E.2d 631, 635 (1999); Swift v.

Commonwealth, 199 Va. 420, 424, 100 S.E.2d 9, 13 (1957).




                               - 12 -
     Specifically noting his reason for granting the

prosecutor's request to give the instruction, the trial judge

ruled as follows:

          The Commonwealth Attorney's argument was
          that if the jury believed . . . that when
          she was thrown to the ground by the
          defendant, that she was forced to touch his
          leg, at least. . . . So that would justify
          that.

The Commonwealth argues on appeal that Cox "pushed clothing

covering his intimate parts against [the teenager's] body."   The

majority opinion adopts this argument and holds that the

instruction is supported because the teenager's body "touched

the material directly covering [Cox's] 'groin' or 'genitalia.'"

No evidence in the record supports that conclusion.    The

teenager did not testify to that fact.   Moreover, no reasonable

inference from the evidence leads to that fact.

     The prosecutor argued and the trial judge accepted as

sufficient for granting the instruction the theory that the

evidence proved the teenager's hands and arms touched Cox's

trousered leg.   Code § 18.2-67.10(2), however, does not include

a leg in its definition of "intimate parts."   I would hold that

the trial judge erred in concluding that evidence, which proved

the teenager's hand touched Cox's trousered leg, was sufficient

to support an instruction that would have allowed the jury to




                              - 13 -
find beyond a reasonable doubt Cox forced the teenager "to touch

[his] intimate parts."

     Furthermore, this instruction was not harmless because it

allowed the jury to unreasonably infer that Cox forced the

teenager to touch his intimate parts or material directly

covering his intimate parts.   No evidence supports that

inference.   Based on mere speculation, the prosecutor argued to

the jury that if they believed the teenager, then the evidence

proved that Cox "pinned [the teenager] down with his legs and

placed his crotch across her, forcing her to come in contact

with his crotch."   Thus, the instruction permitted the jury,

even if it rejected the testimony that Cox touched the

teenager's breast, to convict Cox without proof beyond a

reasonable doubt that he forced the teenager to touch his

intimate parts.   I would hold that the instruction was not

harmless.

     For these reasons, I would reverse the conviction.




                               - 14 -
