                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges O’Brien, Malveaux and Senior Judge Clements
              Argued at Richmond, Virginia
UNPUBLISHED




              SCOTT RUSSELL STEGGALL
                                                                          MEMORANDUM OPINION* BY
              v.     Record No. 1903-18-2                               JUDGE JEAN HARRISON CLEMENTS
                                                                               NOVEMBER 5, 2019
              COMMONWEALTH OF VIRGINIA


                                    FROM THE CIRCUIT COURT OF HENRICO COUNTY
                                                 John Marshall, Judge

                               David M. Branch for appellant.

                               Elizabeth Kiernan Fitzgerald, Assistant Attorney General (Mark R.
                               Herring, Attorney General, on brief), for appellee.


                     In a bench trial, Scott Russell Steggall (appellant) was convicted for taking indecent

              liberties with a minor in violation of Code § 18.2-370. On appeal, appellant challenges the

              sufficiency of the evidence to sustain his conviction. Specifically, appellant argues that the

              evidence was insufficient to prove that he had lascivious intent when he exposed his genitalia in

              the presence of a young child in a public store. Finding that the evidence was insufficient to

              support appellant’s conviction, we reverse the judgment of the trial court.

                                                        BACKGROUND

                     “In general, when reviewing a challenge to the sufficiency of the evidence to support a

              conviction, an appellate court considers the evidence in the light most favorable to the

              Commonwealth, the prevailing party below, and reverses the judgment of the trial court only

              when its decision is plainly wrong or without evidence to support it.” Marshall v.


                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Commonwealth, 69 Va. App. 648, 652-53 (2019). “If there is evidentiary support for the

conviction, ‘the reviewing court is not permitted to substitute its own judgment, even if its

opinion might differ from the conclusions reached by the finder of fact at the trial.’” Chavez v.

Commonwealth, 69 Va. App. 149, 161 (2018) (quoting Banks v. Commonwealth, 67 Va. App.

273, 288 (2017)). “In accordance with familiar principles of appellate review, the facts will be

stated in the light most favorable to the Commonwealth, the prevailing party at trial.” Gerald v.

Commonwealth, 295 Va. 469, 472 (2018) (quoting Scott v. Commonwealth, 292 Va. 380, 381

(2016)).

       In the early afternoon of January 16, 2017, Tamela Murray was shopping at Ollie’s Outlet

Store in Henrico County with her four-year-old daughter, T.G., and Murray’s mother. T.G. was

seated in the top portion of a shopping cart facing Murray as she pushed it.

       Murray paused near a display of women’s boots on an open table. Seated in the cart,

T.G. faced the front of the store. After looking over the boots for about five minutes, Murray

noticed appellant in her “far peripheral vision.” Appellant was moving back and forth, taking

steps forward and backward in and out of the aisle. At first, Murray thought appellant was just

another ordinary shopper. As she selected another boot, however, Murray saw that appellant was

continuing the unusual movement. At that point, appellant’s pants had not been pulled down.

Murray then “turned around” to look at appellant, who was staring at her. Appellant’s hands

were by his sides, and his facial expression was emotionless. Appellant’s jeans were pulled

down to his upper thighs, fully exposing his penis and genitals. Appellant was about ten feet

from Murray and her daughter. Murray “locked eyes” with appellant. Appellant did not say

anything, make any gestures or fondle himself, or appear to be sexually aroused. Murray’s

daughter was in appellant’s direct view, and she was facing him.




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       Murray began screaming repeatedly, “Are you serious, you have your penis out in front

of my child?” Appellant turned and, using an aisle parallel to Murray’s, walked toward the

store’s exit; Murray, still screaming, followed him. Murray assumed that appellant had pulled up

his pants because she did not “see it” anymore. When he reached the door, appellant turned and

said, “You’re lying.” Murray responded by repeatedly calling appellant a “pervert.”

       As appellant exited the store and approached his car, Murray used her cell phone to

record his movements. Appellant drove away. Murray immediately reported the incident to the

store manager and to the police.

                                            ANALYSIS

       Code § 18.2-370(A)(1) provides, in pertinent part, that any adult who “with lascivious

intent, knowingly and intentionally” exposes his “sexual or genital parts” to a child is guilty of

taking indecent liberties. Appellant contends that the evidence was insufficient to prove that he

had lascivious intent, or that he intentionally exposed himself. “Intent, like any element of a

crime, may, and usually must, be proved by circumstantial evidence such as a person’s conduct

and statements. The statements and conduct of an accused after the events that constitute the

charged crime may also be relevant circumstantial evidence of intent.” Simon v.

Commonwealth, 58 Va. App. 194, 206 (2011) (citation omitted).

       The word “lascivious” describes “a state of mind that is eager for sexual indulgence,

desirous of inciting to lust or of inciting sexual desire and appetite.” Dietz v. Commonwealth,

294 Va. 123, 136 (2017) (quoting Viney v. Commonwealth, 269 Va. 296, 299 (2005)). In the

context of taking indecent liberties with a child, the Commonwealth may demonstrate a

defendant’s lascivious intent by proving: “(1) that the defendant was sexually aroused; (2) that

the defendant made gestures toward himself or to the child; (3) that the defendant made improper

remarks to the child; or (4) that the defendant asked the child to do something wrong.” Viney,

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269 Va. at 300. “However, the Court has not held that proof of one of the four factors is a

prerequisite to a finding of lascivious intent.” Mason v. Commonwealth, 49 Va. App. 39, 50

(2006).

          In Simon, the defendant appealed his conviction of taking indecent liberties under Code

§ 18.2-370 where the evidence did not demonstrate that the victim saw the defendant’s “private”

in its entirety. Simon, 58 Va. App. at 207-08. In that case, the defendant visited the area near a

bus stop for a children’s summer camp three times in one week at around the time the bus was

collecting campers. Id. at 197-98. The spot was more than fifteen miles from his home. Id. at

207. The ten-year-old victim saw the defendant sitting in the driver’s seat of a parked truck. Id.

at 197. The defendant’s feet were on the ground outside the vehicle, and his legs were spread

apart. Id. The victim could see the defendant’s “‘private coming out of . . . the inside edge of his

shorts,’ neither ‘a lot [n]or a little’ but ‘sort of in the middle.’” Id. In considering whether the

evidence sufficiently proved the defendant’s lascivious intent, this Court noted that the defendant

had worn “intentionally modified shorts” with a hole in the crotch and placed himself in view of

the victim. Id. at 209-10. Moreover, when the police apprehended him after his third visit to the

site, the defendant hid the modified shorts, and he had pornographic DVDs involving teenagers

in his truck. Id. at 198. Considering the evidence as a whole, this Court found that the

Commonwealth had proven the defendant’s lascivious intent. Id.; see also Campbell v.

Commonwealth, 227 Va. 196, 198 (1984) (evidence proved lascivious intent where defendant

gestured to draw the victim’s attention, pulled down his pants and exposed himself, then gestured

to the child again).

          By contrast, the Supreme Court of Virginia found the evidence insufficient to prove

lascivious intent in Breeding v. Commonwealth, 213 Va. 344 (1972). In that case, two young

girls saw “what they referred to as [defendant’s] ‘privacy’” when he stopped his car and asked

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them for directions; the defendant’s pants were unbuckled and unzipped. Id. at 344. The

defendant left as soon as he obtained the directions he requested, and he made “no suggestive

remarks or gestures and there was no evidence that he was sexually aroused.” Id. at 344-45.

       In McKeon v. Commonwealth, 211 Va. 24, 25 (1970), the defendant, dressed only in a

bathrobe, called to a ten-year-old neighborhood girl who was playing in back of his house and

asked her to go to a nearby store to buy him some bread and milk. He gave her a dollar to make

the purchase. Id. When she returned with the items, he gave her a twenty-five cent tip. Id. A

moment later, he called to her to ask what had happened to his change, and she said that it was in

the bag. Id. As the girl was walking away, McKeon called to her again, and gave her an

additional ten cent tip. Id. The girl took the money and began playing with the defendant’s dog

outside the house. Id. The defendant, who was inside, called to the girl yet again, this time

saying that he wanted to talk to her. The girl became nervous, said no, and turned to walk home.

Id. The defendant called for her to “turn around.” Id. When she complied, she saw him

standing on his porch, thirty-five feet away, with his hands on his hips and his robe open,

exposing his chest and private parts. Id. He was smiling, but he was not sexually aroused and he

made no gestures to the little girl. Id. She immediately ran to a neighbor’s house. Id. The

Court found that the evidence was insufficient to establish the defendant’s lascivious intent,

stating that “there [wa]s no evidence that the defendant was sexually aroused; that he made any

gestures toward himself or to her; that he made any improper remarks to her; or that he asked her

to do anything wrong.” Id. at 27.

       Similar to Breeding and McKeon, appellant exposed himself once in a public place in the

presence of a child. However, he did not say anything, did not gesture, did not have an erection,

and he maintained a blank expression. When Murray confronted appellant, he turned and exited

the store. Even though the Commonwealth may prove lascivious intent through means other

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than the four factors stated in Viney and McKeon, it is clear that something more is required than

simple exposure in a public place, which is all that transpired here. See id. Thus, upon the facts

and circumstances, a reasonable finder of fact could not conclude beyond a reasonable doubt that

appellant possessed lascivious intent.1

                                          CONCLUSION

       For the foregoing reasons, we reverse appellant’s conviction and remand to the trial court

for a new trial upon a lesser-included offense, if the Commonwealth be so advised.2 See

Breeding, 213 Va. at 345; McKeon, 211 Va. at 27.

                                                                           Reversed and remanded.




       1
          Having concluded that the Commonwealth failed to prove an essential element of the
offense and that appellant’s conviction must be reversed, we need not consider appellant’s
alternative argument that the evidence did not prove he intentionally exposed his genitals.
       2
         Under Code § 18.2-387, it is a Class 1 misdemeanor to “intentionally make[] an
obscene display or exposure of [the] person, or the private parts thereof, in any public place, or in
any place where others are present . . . .”
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