                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bray and Frank
Argued at Chesapeake, Virginia


PATRICK TIMOTHY JEFFERS
                                              MEMORANDUM OPINION * BY
v.   Record No. 1350-00-1                      JUDGE ROBERT P. FRANK
                                                   MARCH 6, 2001
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY
                   William H. Shaw, III, Judge

          B. Elliott Bondurant (Hudson and Bondurant,
          P.C., on brief), for appellant.

          Thomas M. McKenna, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     Patrick Timothy Jeffers (appellant) was convicted in a bench

trial of solicitation to commit a felony in violation of Code

§ 18.2-29 and contributing to the delinquency of a minor in

violation of Code § 18.2-371.    On appeal, he contends the trial

court erred in finding the evidence sufficient to convict him of

both offenses.   Finding no error, we affirm the convictions.

                            I.   BACKGROUND

     "Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth, the

prevailing party below, granting to it all reasonable inferences


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
fairly deducible therefrom."   Green v. Commonwealth, 32 Va. App.

438, 442, 528 S.E.2d 187, 189 (2000) (citing Juares v.

Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997)).

     So viewed, the evidence established that on October 18, 1999,

fourteen-year-old Kimberly, whose last name we choose not to

reveal, was walking on Bray Road in Gloucester County near her

home when appellant approached her in his car.     He initially

passed by her, but then turned around and came back towards her.

He stopped and told her, "If you sit on my face, I'll lick your

clit."    She responded, "What?"    He repeated the statement.   She

told him to go away and turned to begin walking toward her house.

Appellant again drove up to her and asked, "Are you sure?"       He

also asked if she wanted a ride.      She told him to "leave her

alone."    Appellant drove off again.

     Appellant drove down the street, turned around, and

approached Kimberly a third time.      In a demanding tone of voice,

he ordered her to get in the car.      Kimberly testified she was

"scared" that he might try to make her get in the car.     When she

again rebuffed him and continued to walk on, appellant turned

around and again approached her.      He said, "Are you sure you don't

want a ride?"   By then Kimberly had reached her house.    She put

her hands up and told him to leave her alone.     When her mother

came out of the house, appellant left.




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        At no time did appellant reach out for Kimberly, nor did he

make any gestures toward her.      After the initial encounter,

Kimberly did not run to her house but "walk[ed] fast."

        Appellant admitted to a deputy sheriff that he was present at

the location described by Kimberly and asked her if she wanted a

ride.    Appellant indicated he was on the dead-end road looking for

a friend who "might be working in a construction site in that

area."    Deputy Sheriff Guire testified there was no construction

in that area.

        Kimberly's mother testified she saw a car next to her

daughter.    Kimberly was coming toward her and "became hysterical."

The driver of the car looked at the mother and "took off."

        Appellant denied that he made any sexual comment to Kimberly,

although he did comment that "she had a pretty face" and indicated

he would give her a ride to "any place she wanted to go."       On

cross-examination, appellant admitted he approached Kimberly four

times while in his car, but he denied telling her to get into the

car.

        Appellant moved to strike the evidence at the conclusion of

the Commonwealth's case and at the conclusion of his own evidence.

The trial court overruled both motions finding the evidence

sufficient to support the convictions.

                             II.    ANALYSIS

                   In reviewing the sufficiency of the
             evidence, we consider the record "'in the
             light most favorable to the Commonwealth,

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          giving it all reasonable inferences fairly
          deducible therefrom. In so doing, we must
          discard the evidence of the accused in
          conflict with that of the Commonwealth, and
          regard as true all the credible evidence
          favorable to the Commonwealth . . . .'"
          Watkins v. Commonwealth, 26 Va. App. 335,
          348, 494 S.E.2d 859, 866 (1998) (citation
          omitted). The credibility of the witnesses,
          the weight accorded testimony, and the
          inferences to be drawn from proven facts are
          matters to be determined by the fact finder.
          See Long v. Commonwealth, 8 Va. App. 194,
          199, 379 S.E.2d 473, 476 (1989). "When
          weighing the evidence, the fact finder is not
          required to accept entirely the
          Commonwealth's or defendant's account of the
          facts," but "may reject that which it finds
          implausible, [and] accept other parts which
          it finds to be believable." Pugliese v.
          Commonwealth, 16 Va. App. 82, 92, 428 S.E.2d
          16, 24 (1993). The judgment of the trial
          court, finding guilt beyond a reasonable
          doubt, will not be set aside unless plainly
          wrong or unsupported by the evidence. See
          Code § 8.01-680.

DeAmicis v. Commonwealth, 31 Va. App. 437, 440, 524 S.E.2d 151,

152 (2000) (en banc).

     Code § 18.2-29 states:

               Any person who commands, entreats, or
          otherwise attempts to persuade another person
          to commit a felony, shall be guilty of a
          Class 6 felony. Any person age eighteen or
          older who commands, entreats, or otherwise
          attempts to persuade another person under age
          eighteen to commit a felony, shall be guilty
          of a Class 5 felony.

     Thus, "[c]riminal solicitation involves the attempt of the

accused to incite another to commit a criminal offense."   Branche

v. Commonwealth, 25 Va. App. 480, 490, 489 S.E.2d 692, 697 (1997).

"'It is immaterial whether the solicitation is of any effect and

                              - 4 -
whether the crime solicited is in fact committed . . . . The gist

of [the] offense is incitement.'"      Id. (quoting Huffman v.

Commonwealth, 222 Va. 823, 827, 284 S.E.2d 837, 840 (1981)).

"[T]he act of solicitation may be completed before any attempt is

made to commit the solicited crime . . . ."     Ford v. Commonwealth,

10 Va. App. 224, 226, 391 S.E.2d 603, 604 (1990) (citing Pedersen

v. Richmond, 219 Va. 1061, 1067-68, 254 S.E.2d 95, 99 (1979)).

     In Pederson, the Supreme Court of Virginia wrote,

"Solicitation may comprise a course of conduct, intended to induce

another to act, that continues over an extended period.     All the

evidence bearing upon [the accused's] intent is relevant to a

determination of his [or her] guilt or innocence."     Pedersen, 219

Va. at 1067, 254 S.E.2d at 99.

     In order to determine if appellant's words and conduct

commanded, entreated or attempted to persuade Kimberly to commit a

felony, we examine appellant's total course of conduct.

     First, it is reasonable to infer that appellant referred to

an act of sodomy in violation of Code § 18.2-361(A) 1 when he said,

"If you sit on my face, I'll lick your clit."     The trial court



     1
         Section 18.2-361(A) states:

                 If any person carnally knows in any
            manner any brute animal, or carnally knows
            any male or female person by the anus or by
            or with the mouth, or voluntarily submits to
            such carnal knowledge, he or she shall be
            guilty of a Class 6 felony, except as
            provided in subsection B.

                                 - 5 -
could have found beyond a reasonable doubt that appellant's words

and conduct did in fact encourage or incite Kimberly to commit a

felony.

        Appellant contends our holding in Ford controls.    In Ford,

two female students from Randolph-Macon College were waiting at

the drive-through at a McDonald's restaurant.      Ford, 10 Va. App.

at 225, 391 S.E.2d at 603-04.     Ford, a McDonald's employee, walked

toward their car.    Id. at 225, 391 S.E.2d at 604.   He leaned

against the driver's side of the car and asked the women if they

attended Randolph-Macon.    Id.   They answered affirmatively and

resumed their conversation.    Id.    Then, Ford mumbled something.

Id.   One of the women asked Ford what he wanted.     Id.   Ford stated

he wanted sex and said, "'I want to lick your pussy.'"      Id.   The

women rolled up their windows until a woman returned with their

food.    Id.   They asked the woman at the drive-through window for

Ford's name.     Id. at 226, 391 S.E.2d at 604.   Ford volunteered his

name, and the women drove to the front of McDonald's, went inside

and spoke with the manager.    Id.

        This Court reversed Ford's conviction, finding that Ford's

statements were nothing but an expression of his desire and did

not constitute a command, entreaty or attempt to persuade either

woman to engage in oral sodomy.      Id. at 228, 391 S.E.2d at 605.

We wrote, "During both of the exchanges between Ford and the

women, Ford made no movement toward the car after initially



                                  - 6 -
walking up to it, nor did he offer the women money or ask them to

get out of the car."    Id. at 226, 391 S.E.2d at 604.

     Unlike Ford, appellant's words and actions were more than an

expression of his desire for oral sex.     The trial court could have

properly concluded that appellant expressed both a desire and

entreaty to induce Kimberly to allow him to sodomize her.       Once

rebuffed, he asked, "Are you sure?"      This question belies

appellant's contention that he only expressed a desire.     By asking

this question, appellant was challenging Kimberly's negative

response to his request for oral sex.     Clearly, a statement of

desire does not elicit a response that would be challenged by

appellant.    Further, appellant, in a demanding tone of voice,

ordered her to get in his car.      To accomplish his incitement to

commit sodomy appellant needed Kimberly to enter his vehicle.       The

facts in this case are similar to those in Pedersen.     Appellant's

entire course of conduct underscored his desire for Kimberly to

act upon his entreaty.

     Appellant further contends because he did not solicit

Kimberly to commit a felony, he cannot be convicted pursuant to

Code § 18.2-371 of contributing to the delinquency of a minor. 2


     2
         Section 18.2-371 states:

                  Any person eighteen years of age or
             older, including the parent of any child,
             who (i) willfully contributes to,
             encourages, or causes any act, omission, or
             condition which renders a child delinquent,
             in need of services, in need of supervision,

                                 - 7 -
Based on our view that appellant did solicit Kimberly, we find no

merit in his contention.   By soliciting Kimberly to commit a

felony, he encouraged an act which would render a child

delinquent.

     We hold that the evidence was sufficient to prove beyond a

reasonable doubt all elements of both offenses.   We, therefore,

affirm appellant's convictions for violating Code § 18.2-29 and

Code § 18.2-371.

                                                          Affirmed.




          or abused or neglected as defined in
          § 16.1-228, or (ii) engages in consensual
          sexual intercourse with a child fifteen or
          older not his spouse, child, or grandchild,
          shall be guilty of a Class 1 misdemeanor.
          This section shall not be construed as
          repealing, modifying, or in any way
          affecting §§ 18.2-18, 18.2-19, 18.2-61,
          18.2-63, 18.2-66, and 18.2-347.

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