                       COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Bumgardner and Felton
Argued at Salem, Virginia


DARYL LANDON CARTER
                                           MEMORANDUM OPINION * BY
v.   Record No. 2506-01-3         CHIEF JUDGE JOHANNA L. FITZPATRICK
                                              OCTOBER 29, 2002
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
                    Joseph W. Milam, Jr., Judge

          J. Patterson Rogers, 3rd, for appellant.

          Eugene Murphy, Assistant Attorney General
          (Jerry W. Kilgore, Attorney General, on
          brief), for appellee.


     Daryl Landon Carter (appellant) was convicted in a bench

trial of two counts of aggravated sexual battery in violation of

Code § 18.2-67.3, two counts of indecent liberties with a minor in

violation of Code § 18.2-370.1 and one count of forcible sodomy in

violation of Code § 18.2-67.1.   The sole issue on appeal is

whether the evidence of penetration is sufficient to sustain the

sodomy conviction.    We find the evidence was insufficient to prove

penetration, and we reverse the conviction.

     Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
therefrom.     See Juares v. Commonwealth, 26 Va. App. 154, 156,

493 S.E.2d 677, 678 (1997).    So viewed, the evidence showed that

appellant sexually molested D.W., who was ten years old at the

time of the abuse.

     D.W. testified that on at least three occasions in December

2000 appellant fondled her.    Specifically, appellant "pulled my

pants down, and then he put his hand on my private . . . he just

sort of put his hand and just rubbed up and down, and then he

put his mouth . . . in between my legs."    When asked what

appellant had done with his mouth, D.W. stated,

             he put his mouth and sort of . . . when he
             did, he . . . he sort of put his tongue on
             my mouth . . . on my private, and he sort of
             rub . . . he sort of went up and down [with]
             his tongue and his mouth.

Appellant also "put his private on my private . . . [and] [h]e

sort of rubbed up and down."    On another occasion, appellant

pulled D.W.'s pajama bottoms down, "put his private on [D.W.'s]

private and sort of took his hand and rubbed up and down with

his hand."    Afterward appellant told D.W., "Don't tell or I'll

go to jail forever."    In yet another encounter, appellant "put

his mouth and private on [her sister] and he had did the same

with me."    Appellant then forced the sister to "put her mouth on

[D.W.'s] private and made me put my mouth on [the sister's]

private."

     Appellant contends this evidence is insufficient to prove

the requisite penetration for a sodomy conviction.    Appellant

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argues that the evidence proved only that he put his mouth and

tongue on D.W.'s "private."   She never testified that appellant

licked her vagina or penetrated any portion of her genitalia.

D.W. did not display any knowledge of the structure of her

anatomy, merely referring to everything as her "private."     Even

viewed in the light most favorable to the Commonwealth, D.W.'s

testimony, without other evidence of penetration, fails to prove

a necessary element of sodomy.    We agree.

     "When the sufficiency of the evidence is challenged on

appeal, we determine whether the evidence, viewed in the light

most favorable to the prevailing party, the Commonwealth, and

the reasonable inferences fairly deducible from that evidence

support each and every element of the charged offense."     Haskins

v. Commonwealth, 31 Va. App. 145, 149-50, 521 S.E.2d 777, 779

(1999).   "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 and

all fair inferences that may be drawn therefrom."   Watkins v.

Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998).

"The judgment of a trial court sitting without a jury is

entitled to the same weight as a jury verdict and will not be

set aside unless it appears from the evidence that the judgment

is plainly wrong or without evidence to support it."   Reynolds

v. Commonwealth, 30 Va. App. 153, 163, 515 S.E.2d 808, 813

(1999).

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             An accused shall be guilty of forcible
             sodomy if he or she engages in cunnilingus,
             fellatio, anallingus, or anal intercourse
             with a complaining witness who is not his or
             her spouse, or causes a complaining witness,
             whether or not his or her spouse, to engage
             in such acts with any other person, and
             . . . [t]he complaining witness is less than
             thirteen years of age.

Code § 18.2-67.1(A).    "[P]enetration is an essential element of

the crime of sodomy."     Ryan v. Commonwealth, 219 Va. 439, 444,

247 S.E.2d 698, 702 (1978).    Nevertheless, the "penetration need

be only slight."     Jett v. Commonwealth, 29 Va. App. 190, 194,

510 S.E.2d 747, 749 (1999) (internal quotations omitted).

        Appellant was specifically charged with cunnilingus, which

"involves stimulation of the vulva or clitoris and the vulva

encompasses the outermost part of the female genitalia."       Horton

v. Commonwealth, 255 Va. 606, 613, 499 S.E.2d 258, 261 (1998).

"[P]enetration of any portion of the vulva is sufficient to

prove sodomy by cunnilingus."     Id.    "The fact that the man's

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

insufficient to establish the element of penetration."       Moore v.

Commonwealth, 254 Va. 184, 189, 491 S.E.2d 739, 741 (1997); see

also Love v. Commonwealth, 18 Va. App. 84, 441 S.E.2d 709 (1994)

(the same degree of penetration is required for both rape and

sodomy).    The analysis of Moore is dispositive of the instant

case.

        Additionally, as in Moore, "there is no indication whatever

in the record that the young victim here was aware of the

                                 - 4 -
intricate structure of her sexual organ."   Moore, 254 Va. at

190, 491 S.E.2d at 742.   Throughout her testimony D.W. referred

only to her "private," without any further description.   Compare

Horton, 255 Va. at 613, 499 S.E.2d at 262 (victim testified

defendant licked her vagina and her understanding of her anatomy

was "evidenced by the fact that she herself used the words

'vagina' and 'penis' in describing [defendant's] attempt to

insert his penis into her vagina"); Love, 18 Va. App. at 86, 441

S.E.2d at 710 (victim testified that defendant "licked her 'down

where [her] private part was,' such that his tongue went . . .

'kind of inside of [her] crack.'   She also testified that his

tongue touched her 'hole' but that she knew it did not go inside

'because [she] did not feel it go in.'").   D.W. testified that

appellant touched her in the "area" of where she "go[es] to the

bathroom," and no circumstantial evidence provided further proof

of penetration.   See Morrison v. Commonwealth, 10 Va. App. 300,

301, 391 S.E.2d 612, 612 (1990) ("in the context of a sodomy

charge, evidence of the condition, position, and proximity of

the parties . . . may afford sufficient evidence of

penetration"); Ryan, 219 Va. at 445, 247 S.E.2d at 702 (showing

an "active course of abuse" permits the fact finder to infer

that there was penetration); Moore, 254 Va. at 191, 491 S.E.2d

at 742 ("medical or forensic evidence" can be used to prove

penetration).   D.W. did not testify that appellant licked her

private.   Instead, the only evidence is that appellant "sort of

                               - 5 -
went up and down [with] his tongue and his mouth."   While this

testimony establishes contact, it does not establish

penetration.   "Here, the victim's testimony does stand alone.

Consequently, we hold there was a failure of proof of

penetration as a matter of law."   Moore, 254 Va. at 191, 491

S.E.2d at 742.   Accordingly, we reverse and dismiss the sodomy

conviction.

                                           Reversed and dismissed.




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