                                         COURT OF APPEALS OF VIRGINIA


            Present: Chief Judge Decker, Judges Humphreys, Petty, Beales, Alston,* Huff, Chafin, O’Brien,
                      Russell, and Malveaux
            Argued at Richmond, Virginia
PUBLISHED




            JOHNATHAN REEVES ROBINSON
                                                                                OPINION BY
            v.     Record No. 1679-17-2                                  JUDGE RANDOLPH A. BEALES
                                                                                JUNE 18, 2019
            COMMONWEALTH OF VIRGINIA


                                            UPON A REHEARING EN BANC

                                 FROM THE CIRCUIT COURT OF AMELIA COUNTY
                                              Paul W. Cella, Judge

                           Timothy A. Hennigan (The Nguyen Law Firm, PLC, on brief), for
                           appellant.

                           Victoria Johnson, Assistant Attorney General (Mark R. Herring,
                           Attorney General, on brief) for appellee.


                   This appeal raises the question of what constitutes force in the crime of sexual battery.

                   At the conclusion of a bench trial, appellant Johnathan Reeves Robinson was convicted

            of sexual battery in violation of Code § 18.2-67.4 by the Circuit Court of Amelia County. On

            appeal, Robinson challenged the sufficiency of the evidence, and a divided panel of this Court

            reversed the conviction. Robinson v. Commonwealth, Record No. 1679-17-2 (Va. Ct. App. Jan.

            15, 2019). The Commonwealth petitioned this Court for a rehearing en banc. We granted the

            Commonwealth’s petition for rehearing en banc, stayed the mandate of the panel decision, and

            reinstated the appeal on the docket of this Court. Upon a rehearing en banc, we find that the trial

            court did not err and affirm appellant’s conviction.


                   *
                     Judge Alston participated in the hearing and decision of this case prior to the effective
            date of his retirement on June 14, 2019.
                                           I. BACKGROUND

        We “view[] the evidence in the light most favorable to the Commonwealth, as we must

since it was the prevailing party in the trial court.” Riner v. Commonwealth, 268 Va. 296, 330

(2004). So viewed, the victim, R.W.,1 testified that in April and May of 2017, she and her husband

were residing with Robinson and his girlfriend in a house belonging to Robinson’s girlfriend. R.W.

testified that, in the afternoon of May 23, 2017, she returned to the house with her sister after an

outing. Because the door was latched, she knocked on the door to enter the house. Robinson

opened the door and told her, “[Y]ou just woke me up.” She stated that she apologized and stepped

into the house. She testified, “[H]e grabbed my breasts right behind my nipples and twisted as hard

as he could.” She stated, “I smacked his hands away” and that then “[h]e smacked my bottom.”

        R.W.’s sister testified that she was standing next to R.W. during the incident and that she

saw Robinson “put his hands on my sister’s breasts and twist[].” She further testified that R.W. then

told “him to get off of her” and that he finally removed his hands from her breasts “[a]bout maybe a

minute later.”

        R.W. testified that there were other occasions, including at least one prior to the incident on

May 23, 2017, in which Robinson had touched her in a sexual way and that she had expressed to

him on multiple occasions that she did not want him to touch her. She also testified that Robinson

had told her that “if [she] said something” about his actions, she and her husband would have to

move out of the house. She added that, at the time, she and her husband had nowhere else to go.

During her testimony, R.W. also stated that Robinson “cupped the front of me and told me he can

have it if he wanted it,” although it is somewhat unclear from her testimony when that action

occurred.



        1
            We refer to the complaining witness by her initials in an attempt to maintain her
privacy.
                                                  -2-
        The trial judge denied Robinson’s motion to strike and found Robinson guilty of sexual

battery based on the May 23, 2017 incident. Specifically, the trial judge found that “because of the

manner in which [R.W.] said that [Robinson] grabbed and held and twisted her breasts, the

requirement of force is met.” The judge concluded that “the evidence indicates that the requisite

degree of force was applied.”

        On appeal, Robinson’s sole assignment of error states, “The trial court erred in finding

evidence sufficient to convict based on use of force when there was no evidence that the alleged

touching was accomplished by the use of force sufficient to overcome the victim’s will.”

                                             II. ANALYSIS

        When considering the sufficiency of the evidence on appeal, “a reviewing court does not

‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable

doubt.’” Crowder v. Commonwealth, 41 Va. App. 658, 663 (2003) (quoting Jackson v. Virginia,

443 U.S. 307, 318-19 (1979)). “Viewing the evidence in the light most favorable to the

Commonwealth, as we must since it was the prevailing party in the trial court,” Riner v.

Commonwealth, 268 Va. 296, 330 (2004), “[w]e must instead ask whether ‘any rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt,’” Crowder,

41 Va. App. at 663 (quoting Kelly v. Commonwealth, 41 Va. App. 250, 257 (2003) (en banc)).

“This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve

conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic

facts to ultimate facts.” Jackson, 443 U.S. at 319.

        Resolution of Robinson’s assignment of error also requires statutory interpretation, which

we conduct de novo. Commonwealth v. Amos, 287 Va. 301, 305-06 (2014); Hodges v.

Commonwealth, 45 Va. App. 118, 123 (2005) (en banc).




                                                  -3-
       Code § 18.2-67.4(A)(i) states, “An accused is guilty of sexual battery if he sexually

abuses, as defined in § 18.2-67.10, . . . the complaining witness against the will of the

complaining witness, by force, threat, intimidation, or ruse.” The definition for “sexual abuse”

includes “an act committed with the intent to sexually molest, arouse, or gratify any person,

where . . . [t]he accused intentionally touches the complaining witness’s intimate parts or

material directly covering such intimate parts.” Code § 18.2-67.10(6)(a). “Intimate parts” is

defined as the “genitalia, anus, groin, breast, or buttocks of any person.” Code § 18.2-67.10(2).

       The only issue here is whether the force requirement has been met, since Robinson

concedes the trial court’s factual finding of the sexual abuse and that the touching was performed

against the will of the complaining witness. When reviewing convictions of sexual battery done

“by force,” we consider the totality of the circumstances. Jones v. Commonwealth, 219 Va. 983,

986 (1979); Bondi v. Commonwealth, 70 Va. App. 79, 88-89 (2019); Wactor v. Commonwealth,

38 Va. App. 375, 382-83 (2002).

       The trial court made a finding of fact that the sexual battery occurred by force, stating

that “because of the manner in which [R.W.] said that [Robinson] grabbed and held and twisted

her breasts, the requirement of force is met” and stating that “the evidence indicates that the

requisite degree of force was applied.” Considering the totality of the circumstances, and giving

the trial judge, as the finder of fact, the deference required on appeal, the evidence shows that

Robinson touched R.W.’s breasts by using force as required by the statute. Robinson “grabbed

[R.W.’s] breasts right behind [her] nipples and twisted as hard as he could.” (Emphasis added.)

He also held on to R.W.’s breasts in that manner for “[a]bout maybe a minute” until R.W.

smacked his hands sufficiently to finally get him to release her breasts.




                                                -4-
       Robinson relies upon this Court’s decisions in Woodard v. Commonwealth, 27 Va. App.

405 (1998), and Johnson v. Commonwealth, 5 Va. App. 529 (1988), in arguing that his

conviction should be reversed.

       In Woodard, the victim found Woodard standing in the doorway of her home. Woodard,

27 Va. App. at 407. Woodard asked the victim to go out with him, and after she refused, he

“squeezed her breasts, grabbed her between her legs, and departed.” Id. The trial court found

that the sexual abuse had been accomplished by intimidation – not by force or threat. Id. at 408.

The trial court then convicted Woodard of sexual battery in violation of Code § 18.2-67.4. On

appeal, this Court’s analysis was confined to whether the sexual abuse had occurred by

intimidation because this Court was bound by the trial court’s explicit factual finding that

Woodard had not used force to commit the sexual battery. The Court reversed the conviction,

finding that the touching “was accomplished by surprise, not by intimidation.” Id. at 410. In

contrast to the situation in Woodard, the trial court in the case now before us found Robinson

guilty because he used force to accomplish the sexual abuse. Therefore, this Court’s decision in

Woodard is not persuasive regarding the outcome of this case.

       In Johnson, the evidence showed that Johnson positioned himself on a bed behind the

victim, a fourteen-year-old boy, who was already lying in the bed. Johnson then put his arm

around the victim to hold him very close to him and touched and fondled the victim’s genitalia

and buttocks.2 Johnson, 5 Va. App. at 531. When the victim attempted to get up, Johnson

“pushed [him] back down.” Id. The victim then got up again, this time evading Johnson’s




       2
         The record in Johnson shows that the victim testified that Johnson “stuck his hand
down” inside the victim’s pants when Johnson touched him. The victim also testified that during
the three- to five-minute period that Johnson was holding him, Johnson thrust his hips against the
victim’s body “close to ten” times.
                                               -5-
attempt to grab him, went to the bathroom, and quickly left the house. Id. In that case, as in the

one currently before us, the issue was whether the touching occurred “by force.”3

          While the facts in Johnson are distinguishable from the facts in this case (as noted in the

panel dissent in Robinson), the Court now sits en banc and, unlike the panel majority or dissent,

is able to reconsider the holding in Johnson. Code § 17.1-402. “When the language of a statute

is plain and unambiguous, we are bound by the plain meaning of that statutory language.” Jones

v. Commonwealth, 296 Va. 412, 415 (2018) (quoting Alston v. Commonwealth, 274 Va. 759,

769 (2007)). It is clear to us, in considering the plain language of the statute (and the facts of

Johnson, as noted in the Court’s opinion), that Johnson was wrongly decided. Now sitting en

banc, we overrule it. The elements of the statute were clearly met in that case. First, Johnson

had touched the genitalia and buttocks of the victim to sexually arouse or gratify himself,

satisfying the requirement in Code § 18.2-67.3 for sexual abuse, as defined in Code § 18.2-67.10.

Second, the facts make clear that the touching was accomplished against the will of the

complaining witness as the victim twice got up to try to get away from Johnson. Finally, the

element of force was met. The evidence showed that Johnson positioned himself on the bed

behind the victim, and the victim testified that “[Johnson] woke me up and was holding me real

close to him” as Johnson fondled the boy’s genitals. Johnson, 5 Va. App. at 531 (emphasis

added).




          3
          Johnson was convicted of aggravated sexual battery (as opposed to sexual battery)
under Code § 18.2-67.3 because of the victim’s young age. (Code § 18.2-67.3 has since been
amended, but not in a way that affects our analysis.) In addition, the relevant part of the statute
dealing with force under which Johnson was convicted is essentially the same as the relevant part
of the statute dealing with force under which Robinson was convicted. Both statutes provide that
the sexual abuse be performed “against the will of the complaining witness, by force . . . .”
Therefore, the “force” requirement in Johnson is the same as the “force” requirement contained
in Code § 18.2-67.4 and at issue in this appeal.
                                                -6-
       Considering the totality of the circumstances, including Johnson’s lying down by the

victim on the bed and pulling the victim “real close to him” at the time of the touching of the

victim’s genitals, we conclude that the sexual abuse performed against the will of the

complaining witness was accomplished by force. While we are rightly hesitant to overturn

previous decisions of this Court, there are occasions where a wrongly decided case providing

erroneous precedent must be overturned. The opinion of this Court in Johnson misinterpreted

the plain language of the statute, failed to apply the appropriate appellate standard of review

giving due deference to the fact finder, and incorrectly found on appeal a lack of force despite

the very facts showing force cited in the Court’s opinion.

       Similarly, considering the facts of the case now before us in light of the statutory element

of force in Code § 18.2-67.4, and given the totality of the circumstances here – including

Robinson’s twisting of the breasts “as hard as he could” and the duration of it – we certainly

cannot conclude that no rational fact finder could have found Robinson guilty of sexual battery.

                                         III. CONCLUSION

       We hold that a rational fact finder could conclude that Robinson accomplished the

touching “by force” because not only did he touch or grab the victim’s breasts but he also

“twisted as hard as he could” – and held on to her in that manner for about a minute, according to

the victim’s sister, who was standing stunned next to her. Furthermore, it is undisputed on

appeal that this battery occurred against the will of the victim – and that the touching satisfied

the statutory requirement of sexual abuse, as defined in Code § 18.2-67.10. In short, considering

the totality of the circumstances, we simply cannot say that no rational fact finder could have

found Robinson guilty of sexual battery beyond a reasonable doubt. For all of these reasons, we

affirm Robinson’s conviction for sexual battery in violation of Code § 18.2-67.4.

                                                                                           Affirmed.

                                                -7-
O’Brien, J. with whom Humphreys and Malveaux, JJ., join, dissenting.

       I agree with the majority that the sole issue in this appeal is whether the evidence established

that the act was committed “by force” as required by Code § 18.2-67.4(A)(i). There is no question

that appellant “intentionally touch[ed]” clothing covering the complaining witness’ “intimate parts,”

her breasts, “with the intent to sexually molest, arouse, or gratify.” Code § 18.2-67.10(2);

18.2-67.10(6)(a). These actions constitute “sexual abuse.” Id. There is also no question that

appellant committed sexual abuse “against the will of the complaining witness.” Code

§ 18.2-67.4(A)(i). However, for non-consensual touching to be elevated from assault and battery to

sexual battery, the sexual abuse must be accomplished “by force, threat, intimidation, or ruse.” Id.

Because I cannot find that appellant’s actions, although reprehensible and offensive, demonstrated

that he accomplished the sexual abuse by force, I respectfully dissent.

       This Court initially addressed the degree of force necessary to support a sexual battery

conviction in Johnson v. Commonwealth, 5 Va. App. 529 (1988). We stated that “[s]ome force

other than merely that force required to accomplish the unlawful touching” is required. Id. at 534.

“[U]nless some force is used to overcome the will of the complaining witness, the unlawful touching

constitutes common law assault and battery.” Id. (emphasis added). In reversing Johnson, the

majority does not repudiate the requirement that the sexual abuse must be accomplished by force or

that a defendant must employ some force beyond that required to accomplish the unlawful touching.

Rather, it finds that evidence of the teenage victim waking to find the defendant “holding [the

victim] real close to him” as the defendant fondled the victim’s genitals was sufficient to establish

the necessary force. Id. at 531.4


       4
         Overruling Johnson to find the facts sufficient to establish that the crime was committed
“by force” reduces the word “force” as used in the statute to redundant surplusage. Taken to its
logical extension, therefore, any non-consensual touching of an intimate body part would
automatically constitute sufficient force to overcome a victim’s will. If the General Assembly
intended that every act of sexual abuse would establish a sexual battery, it would not have
                                                -8-
        Here, however, the restraint employed by appellant was inherent in the act itself; it was not

used to overcome the will of the complaining witness to accomplish the non-consensual touching.

The majority finds that testimony from the complaining witness’ sister that appellant “twisted [the

complaining witness’ breasts] as hard as he could” for “about maybe a minute” was sufficient to

prove that he used force to accomplish the sexual abuse.5 However, there was no evidence that

appellant overcame her will besides the unlawful act of grabbing and twisting her breasts. For

example, appellant did not hold the complaining witness so that he could accomplish the touching,

as in Johnson. The duration and intensity of appellant’s sexual abuse under Code § 18.2-67.10(6)(a)

is not evidence that he first used force to overcome her will to accomplish the act as required by

Code § 18.2-67.4(A)(i). Clearly, appellant’s actions were aggressive and non-consensual; the

complaining witness testified that she “smacked” his hands away. However, the inherent violence

of the act does not, of itself, establish that it was committed “by force.”

        Evidence that appellant acted without warning or provocation cannot satisfy the “force”

element of sexual battery. See Woodard v. Commonwealth, 27 Va. App. 405, 410 (1998). In

Woodard, the victim entered her apartment and found the defendant inside, uninvited. Id. at 407.

After the victim told Woodard that she did not want to date him, he “squeezed her breasts, grabbed

her between her legs, and departed.” Id. On these facts, the trial court found that the sexual abuse




required the additional element of “by force, threat, intimidation, or ruse.” Code
§ 18.2-67.4(A)(i). We decided Johnson thirty-one years ago. Had the General Assembly
disagreed with our interpretation of its legislative intent regarding Code § 18.2-67.4(A)(i), it
certainly had the opportunity to correct us. See Barson v. Commonwealth, 284 Va. 67, 74
(2012) (stating that the General Assembly is presumed to be aware of appellate decisions and
“[i]ts acquiescence is deemed to be approval”).
        5
         We note that the complaining witness did not testify concerning the length of the
incident, saying only that she “smacked [appellant’s] hands away” and he then “smacked her
bottom.” Likewise, the testimony about appellant’s prior non-consensual touching and
statements he made to the complaining witness are irrelevant to the issue of whether he
accomplished the May 23 sexual abuse by force.
                                              -9-
was not accomplished by force or threat. Id. at 408. However, it did find that the defendant’s

presence in the apartment intimidated the victim to the extent necessary to establish sexual battery.

Id.

        In Woodard, we reversed the conviction because when the defendant “simply grabbed her

abruptly,” that action did not constitute intimidation. Id. at 410. Intimidation requires that a victim

be put in “fear of bodily harm by [the assailant] exercising such domination and control of her as to

overcome her mind and overbear her will.” Id. (quoting Clark v. Commonwealth, 12 Va. App.

1163, 1165 (1991)). Noting that the victim “had time neither to reflect upon [the defendant’s]

conduct, nor to submit,” we held that “[w]hile the touching was patently non-consensual and

outrageously offensive, it was accomplished by surprise, not by intimidation.” Id.

        Although the issue in the case before us is “force” as opposed to “intimidation,” a similar

analysis applies. Sexual battery under Code § 18.2-67.4(A)(i), whether achieved by force or

intimidation, requires the defendant to overcome the victim’s will through conduct that is more than

mere surprise. See Woodard, 27 Va. App. at 410. Here, although the evidence demonstrated that

appellant accomplished the battery “by surprise,” it was insufficient to prove he committed sexual

abuse by force. See Wilson v. Commonwealth, No. 2636-96-2, at *1 (Va. Ct. App. Nov. 4, 1997)

(finding insufficient evidence of force where the defendant came up behind the victim and grabbed

her buttocks “with such force that she had to step forward to maintain her balance” because the act

was accomplished by surprise).6

        For these reasons, the evidence and inferences even considered in the light most favorable to

the Commonwealth are insufficient to prove that appellant accomplished the sexual abuse by force.




        6
          Although not binding precedent, unpublished opinions can be cited and considered for
their persuasive value. Rule 5A:1(f). See Otey v. Commonwealth, 61 Va. App. 346, 350 n.3
(2012).
                                             - 10 -
Therefore, I must respectfully dissent and would remand the case for a trial on assault and battery, if

the Commonwealth is so advised.




                                                - 11 -
VIRGINIA:
           In the Court of Appeals of Virginia on Tuesday           the 12th day of February, 2019.


Johnathan Reeves Robinson,                                                                           Appellant,

against             Record No. 1679-17-2
                    Circuit Court No. CR17000069-00

Commonwealth of Virginia,                                                                            Appellee.


                                     Upon a Petition for Rehearing En Banc


                         Before Chief Judge Decker, Judges Humphreys, Petty, Beales,
                             Huff, Chafin, O’Brien, Russell, AtLee and Malveaux


       On January 29, 2019 came the appellee, by the Attorney General of Virginia, and filed a petition

requesting that the Court set aside the judgment rendered herein on January 15, 2019, and grant a rehearing en

banc on the issue(s) raised in the petition.

       On consideration whereof and pursuant to Rule 5A:35 of the Rules of the Supreme Court of Virginia,

the petition for rehearing en banc is granted and the appeal of those issues is reinstated on the docket of this

Court. The mandate previously entered herein is stayed pending the decision of the Court en banc.

       The parties shall file briefs in compliance with the schedule set forth in Rule 5A:35(b). The appellant

shall attach as an addendum to the opening brief upon rehearing en banc a copy of the opinion previously

rendered by the Court in this matter. An electronic version of each brief shall be filed with the Court and

served on opposing counsel. In addition, four printed copies of each brief shall be filed.
It is further ordered that the appellee shall file an electronic version and four additional copies of the appendix

previously filed in this case.1

                                           A Copy,

                                                  Teste:

                                                                        Cynthia L. McCoy, Clerk

                                                           original order signed by a deputy clerk of the
                                                  By:      Court of Appeals of Virginia at the direction
                                                           of the Court

                                                                        Deputy Clerk




        1
       The guidelines for filing electronic briefs and appendices can be found at
www.courts.state.va.us/online/vaces/resources/guidelines.pdf.
                                                    -2-
                                              COURT OF APPEALS OF VIRGINIA


              Present: Judges Beales, O’Brien and Malveaux
              Argued at Richmond, Virginia
UNPUBLISHED




              JOHNATHAN REEVES ROBINSON
                                                                              MEMORANDUM OPINION* BY
              v.     Record No. 1679-17-2                                    JUDGE MARY GRACE O’BRIEN
                                                                                   JANUARY 15, 2019
              COMMONWEALTH OF VIRGINIA


                                     FROM THE CIRCUIT COURT OF AMELIA COUNTY
                                                  Paul W. Cella, Judge

                               Timothy A. Hennigan (The Nguyen Law Firm, PLC, on brief), for
                               appellant.

                               Donald E. Jeffrey, III, Senior Assistant Attorney General (Mark R.
                               Herring, Attorney General, on brief), for appellee.


                     Johnathan Reeves Robinson (“appellant”) was convicted in a bench trial of sexual battery by

              force, in violation of Code § 18.2-67.4(A)(i). On appeal, he argues the evidence failed to establish

              “that the alleged touching was accomplished by the use of force sufficient to overcome the victim’s

              will.” We agree and reverse appellant’s conviction.

                                                         BACKGROUND

                     In April and May of 2017, R.W.1 and her husband resided with appellant. R.W. testified

              that on May 23, 2017, she and her sister returned to the residence and knocked on the front door,

              which was locked. Appellant answered and told R.W. that she woke him up. R.W. apologized, and

              as she entered the residence, appellant stood in front of her and “grabbed [her] breasts right behind




                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                         We refer to the complaining witness by her initials to maintain her privacy.
[her] nipples and twisted as hard as he could.” R.W. stated that she “smacked his hands away” and

appellant then “smacked [her] bottom.”

       R.W.’s sister testified that she observed appellant’s action and “couldn’t believe it

happened.” She stated that when appellant grabbed her sister’s breasts, R.W. told “him to get off of

her,” and he did so “about maybe a minute later.”

       R.W. testified that appellant also touched her without consent on several other occasions

during her stay at the residence. Shortly after the May 23 incident, R.W. and her husband moved

out, and she filed a criminal complaint against appellant.

       The court denied appellant’s motion to strike and found sufficient evidence of sexual battery

based on the May 23 incident. The court stated that “because of the manner in which [R.W.] said

that [appellant] grabbed and held and twisted her breasts, the requirement of force [had been] met,”

and convicted appellant of sexual battery.

                                             DISCUSSION

       When reviewing a challenge to the sufficiency of the evidence, this Court views the

evidence in the light most favorable to the Commonwealth, the prevailing party at trial. Riner v.

Commonwealth, 268 Va. 296, 330 (2004). We will not set aside the court’s judgment unless the

decision is plainly wrong or without evidence to support it. Commonwealth v. Anderson, 278 Va.

419, 425 (2009).

       Code § 18.2-67.4(A)(i) provides that “[a]n accused is guilty of sexual battery if he sexually

abuses . . . the complaining witness against the will of the complaining witness, by force, threat,

intimidation, or ruse.” “Sexual abuse” is defined, in part, as when “[t]he accused intentionally

touches the complaining witness’s intimate parts or material directly covering such intimate parts.”

Code § 18.2-67.10(6)(a). “Intimate parts” include the breast. Code § 18.2-67.10(2).




                                                 -2-
       It is undisputed that appellant sexually abused R.W. as that term is defined in Code

§ 18.2-67.10. However, appellant asserts that the Commonwealth failed to prove that the sexual

abuse was accomplished by “force” as required by Code § 18.2-67.4(A)(i). The Commonwealth

responds that the testimony that appellant “twisted [her breasts] as hard as he could” for “about

maybe a minute” was sufficient to establish that element of the offense.

       We addressed the degree of force necessary to support a sexual battery conviction in

Johnson v. Commonwealth, 5 Va. App. 529 (1988). We stated that “[s]ome force other than merely

that force required to accomplish the unlawful touching” is required. Id. at 534. “[U]nless some

force is used to overcome the will of the complaining witness, the unlawful touching constitutes

common law assault and battery.” Id. (emphasis added). See Haynes v. Commonwealth,

No. 1778-98-3, at *2 (Va. Ct. App. Oct. 5, 1999) (defendant conceded the evidence was sufficient

to prove force where he held victim’s hands behind her back while touching her vagina).2

       Evidence that appellant acted without warning or provocation cannot satisfy the “force”

element of sexual battery. See Woodard v. Commonwealth, 27 Va. App. 405 (1998). In Woodard,

the victim entered her apartment and found the defendant inside, uninvited. Id. at 407. After the

victim told Woodard that she did not want to date him, he “squeezed her breasts, grabbed her

between her legs, and departed.” Id. The court found that although the battery was not

accomplished by force or threat, the defendant’s presence in the apartment intimidated the victim to

the extent necessary to convict him of sexual battery. Id. at 408.

       We reversed the conviction because when the defendant “simply grabbed her abruptly,” that

action did not constitute intimidation, which requires “fear of bodily harm.” Id. at 410 (citing Clark

v. Commonwealth, 12 Va. App. 1163, 1165 (1991)). Noting that the victim “had time neither to


       2
          “Although not binding precedent, unpublished opinions can be cited and considered for
their persuasive value.” Otey v. Commonwealth, 61 Va. App. 346, 350 n.3 (2012). See also Rule
5A:1(f).
                                               -3-
reflect upon [the defendant’s] conduct, nor to submit,” we held that “[w]hile the touching was

patently non-consensual and outrageously offensive, it was accomplished by surprise, not by

intimidation.” Id.

       Although the issue in the case before us is “force” as opposed to “intimidation,” a similar

analysis applies; sexual battery, under Code § 18.2-67.4(A)(i), whether achieved by force or

intimidation, requires the defendant to overcome the victim’s will. Here, while the evidence

demonstrated that appellant accomplished the battery “by surprise,” it was insufficient to prove he

committed sexual abuse by force. The restraint employed by appellant was inherent in the act itself;

it was not used to overcome her will to accomplish the non-consensual touching.

       The Commonwealth asserts that the element of force can be established by the violent

nature of the act and the fact that appellant did not release R.W. for “about maybe a minute,” citing

Clark v. Commonwealth, 30 Va. App. 406 (1999), and Kanczuzewski v. Commonwealth,

No. 2153-07-2 (Va. Ct. App. Mar. 10, 2009). Both cases addressed sexual offenses requiring proof

that a defendant’s act is “accomplished against the will of the complaining witness, by force, threat

or intimidation.” Clark, 30 Va. App. at 409 (aggravated sexual battery, in violation of Code

§ 18.2-67.3); Kanczuzewski, No. 2153-07-2, at *3 (object sexual penetration, in violation of Code

§ 18.2-67.2).

       However, the Commonwealth’s reliance on those cases is misplaced. In both, we affirmed

convictions based on evidence that the defendants’ conduct consisted of an act of force separately

identifiable from the unlawful touching. In Clark, the defendant’s act of lying on top of a victim

was more force than required to accomplish the unlawful act of touching her intimate parts. 30

Va. App. at 410. Similarly, in Kanczuzewski, the defendant’s act of “grabbing” the victim prior to a

sexual assault was “more than the force required to accomplish the unlawful touching.” No.

2153-07-2, at *4. We acknowledged that the defendant “proceeded on” groping his victim “for

                                                 -4-
about one or two minutes” after she told him it hurt and asked him to stop, which “reinforce[d] the

trial court’s finding that force was used.” Id. at *1, *4. Here, however, any durational evidence

served only to demonstrate the non-consensual touching occurred. See id. at *4. Therefore, even if

we consider the evidence and inferences in the light most favorable to the Commonwealth, the

totality of facts cannot establish the force necessary to sustain appellant’s conviction for sexual

battery.

           Accordingly, we reverse the conviction and remand the case for further proceedings, if the

Commonwealth be so advised.

                                                                               Reversed and remanded.




                                                   -5-
Beales, J., dissenting.

        The majority, relying primarily on Johnson v. Commonwealth, 5 Va. App. 529 (1988), and

Woodard v. Commonwealth, 27 Va. App. 405 (1998), holds that “the totality of facts cannot

establish the force necessary to sustain appellant’s conviction for sexual battery.” I respectfully

disagree.

        “Viewing the evidence in the light most favorable to the Commonwealth, as we must since

it was the prevailing party in the trial court,” Riner v. Commonwealth, 268 Va. 296, 330 (2004), the

evidence shows that, as R.W. was entering the house where she and her husband lived with

appellant Robinson, appellant stood in front of her at the doorway and “grabbed [her] breasts right

behind [her] nipples and twisted as hard as he could.”3 The victim, R.W., stated that she “smacked

his hands away” and appellant then “smacked [her] bottom.” R.W.’s sister testified that she

observed appellant’s action and that, when appellant grabbed her sister’s breasts, R.W. told “him to

get off of her.” Her sister testified that appellant did not do so, however, until “about maybe a

minute later.”

        Considering the totality of the circumstances, and giving the trial judge, as the finder of fact,

the deference required, the evidence shows that appellant used more force than “merely that force

required to accomplish the unlawful touching . . . .” Johnson, 5 Va. App. at 534. In Johnson, the

evidence showed that Johnson positioned himself behind the victim, who was lying in a bed, and

“touched” the victim’s genitalia and buttocks. This Court reversed Johnson’s conviction, finding

“[s]ome force other than merely that force required to accomplish the unlawful touching” is

required. Id. In the case currently before us, however, the evidence shows the action was more than

a mere touching – because appellant “grabbed [her] breasts behind [her] nipples and twisted as hard


        3
          Testimony at trial shows that R.W. and her husband lived with appellant and his girlfriend
in a house belonging to appellant’s girlfriend. The evidence also shows that the incident at issue in
this case is not the first time that appellant touched R.W. without her consent.
                                                    -6-
as he could.” (Emphasis added.) The victim then smacked appellant’s hands sufficiently to finally

get them off of her breasts.

        Johnson also states that “[w]here the complaining witness is at least thirteen years old,

unless some force is used to overcome the will of the complaining witness, the unlawful touching

constitutes common law assault and battery.” Johnson, 5 Va. App. at 534. This requirement for the

necessary force is met in the facts of this case. The victim, by smacking away appellant’s hands and

telling him to “get off of her” not only demonstrated her lack of consent, which was not in dispute,

but also conveyed that he was using such force that she could not immediately break away and that

her will was overcome. The fact that appellant “grabbed [her] breasts right behind [her] nipples and

twisted as hard as he could” and then finally let go “about maybe a minute later” is enough for a

rational fact finder to conclude that he used force beyond that simply necessary to touch her breasts.

Indeed, the trial court found that, “because of the manner in which she said that he grabbed and held

and twisted her breasts, the requirement of force is met.” (Emphasis added.)

        The majority discusses Woodard and notes that, in that case, the trial court found the

defendant’s actions did not constitute force or threat, but instead constituted intimidation under

Code § 18.2-67.4(A). Thus, on appeal, this Court’s inquiry in Woodard, where this Court reversed

the conviction, was limited to “whether Woodard sexually abused [the victim] by intimidation.”

Woodard, 27 Va. App. at 409. In contrast to the situation in Woodard, the trial court in this case

found appellant guilty because he used the necessary force – as opposed to intimidation – to

accomplish the sexual abuse. Therefore, this Court’s decision in Woodard does not control the

outcome of this case.

        Considering the totality of the circumstances, I would hold that a rational fact finder could

conclude that appellant used more force than that necessary merely to accomplish the touching

because not only did he touch or grab the victim’s breasts but he also “twisted as hard as he could” –

                                                 -7-
and held on to her in that manner for about a minute, according to the victim’s sister, who was

standing stunned next to her. In short, given the totality of the circumstances, I simply cannot say

that no rational fact finder would have found the appellant guilty of sexual battery beyond a

reasonable doubt.

       Consequently, I would affirm the circuit court. For these reasons, I respectfully dissent.




                                                 -8-
