Present: Hassell, C.J., Lacy, Koontz, Kinser, and Lemons, JJ.,
and Carrico and Russell, S.JJ.

MICHAEL JAMAL DAVIS
                                              OPINION BY
v.   Record No. 052272             SENIOR JUSTICE HARRY L. CARRICO
                                         September 15, 2006
COMMONWEALTH OF VIRGINIA

               FROM THE COURT OF APPEALS OF VIRGINIA

      The defendant, Michael Jamal Davis, appeals from the

judgment of the Court of Appeals of Virginia denying his

petition for appeal from his conviction in a bench trial for

object sexual penetration.    Code § 18.2-67.2(A).   The trial

court sentenced the defendant to a term of three years in the

penitentiary with two years suspended.    We awarded him an

appeal, and his sole contention is that the evidence was

insufficient to establish the necessary element of penetration.

      The defendant was originally arrested by Virginia Beach

Officer Christopher Moran for drunkenness in public and refusal

to identify himself.     Placed in a patrol car, he became violent

and tried to kick out the car’s window.    He was taken to the

police station and placed in the lockup, where he threatened

other prisoners with sexual assault.    When Officer Moran

attempted to take him before a magistrate, he made a similar

threat to the officer, prompting a decision that he would be

placed in a single cell rather than the “bullpen.”
        Officer Christine Caleo assisted Officer Moran in

transferring the defendant to a single cell.    Upon reaching the

cell, Officer Moran started to take the handcuffs off the

defendant and had removed the left one when the defendant spun

around and started to raise his hands.    Officer Moran tried to

grab the defendant’s right arm to keep him from using the

handcuff as a weapon, but the defendant continued to resist.

Officer Caleo also attempted to gain control of the defendant.

Officer Moran succeeded in pinning the defendant against the

wall, where the defendant began kicking Officer Moran’s lower

legs.    When Officer Moran finally got the defendant’s right arm

behind his back, Officer Moran looked down and saw that the

defendant had “his left hand in between Officer Caleo’s legs.”

        Officer Caleo had her right arm around the defendant’s head

“trying to get him down on the ground” when he “brought his left

[arm] around and came straight between [her] legs and grabbed

[her] vaginal area, cupped it, and put his finger inside the

front area of [the] lips of [her] vagina.”    Other officers

arrived on the scene and helped get the defendant “down on the

ground [and] cuffed.”

        The defendant testified in his own behalf at trial.    He

said he was “pretty intoxicated” at the time of the incident in

question and did not “know if he did or [he] didn’t” do what

Officer Caleo said he did.


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        At the time of her struggle with the defendant, Officer

Caleo was dressed in “regular issue . . . polyester pants” and

“undergarments as well,” and the defendant focuses on this fact

in much of his argument on appeal.     He correctly points out that

Code § 18.2-67.2(A) requires penetration of the victim’s labia

majora, which is the outermost part of the female genitalia.

See Moore v. Commonwealth, 254 Va. 184, 190, 491 S.E.2d 739, 742

(1997).    Then, citing one dictionary definition equating

“penetration” with “insertion” and another likening

“penetration” to “pass through,” he maintains that “[his]

fingers were not inserted into and did not pass through the

labia majora.”    Rather, he says, “[his] fingers touched the

clothing of the officer that covered the labia majora” and

“[h]er trousers and undergarments were between his fingers and

the opening to the sexual organ.”

        Furthermore, the defendant asserts, the testimony of

Officer Caleo was “imprecise.”    He says that at one point she

testified he put his finger “inside” the front area of the lips

of her vagina but she later testified his finger “hit” the front

area.

        The defendant claims this testimony is similar to testimony

found insufficient in Moore to support a finding of penetration

in a rape case.    There, the victim was a child under the age of

thirteen.    We observed that the victim was not aware of the


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intricate structure of her sexual organ, and it was clear that

when she referred to her vagina she was describing the external

part of her anatomy.   She testified at one point during the

Commonwealth’s case-in-chief that the accused placed his penis

“in” her vagina and at another point that he placed his penis

“on” her vagina.   We said the Commonwealth’s evidence thus was

in a state of equipoise on an essential element of the crime,

id. at 189, 491 S.E.2d at 741, and we held there was a failure

of proof of penetration as a matter of law, id. at 191, 491

S.E.2d at 742.

     Here, however, unlike the child victim in Moore, Officer

Caleo was aware of the intricate structure of her genitalia, and

she testified explicitly that the defendant put his finger

“inside” the front area of the lips of her vagina.   Her later

statement that the defendant’s finger “hit” the front area does

not detract in any way from her earlier testimony or cause the

evidence to be in a state of equipoise.    Indeed, the second

statement fortifies the first.   She said on the second occasion

that it was when the defendant’s finger “hit the front area”

that she “felt the sensation of pain.”

     Code § l8.2-67.2(A) only requires slight penetration.      See

Horton v. Commonwealth, 255 Va. 606, 612, 499 S.E.2d 258, 261

(1998).   Nothing in that section specifies that such penetration

be accomplished by skin-to-skin contact.    And the fact that the


                                 4
victim is clothed does not change the outcome when, as here, the

victim testifies explicitly that penetration has occurred

despite the existence of clothing and the testimony is

uncontradicted.

     As the Tenth Circuit Court of Appeals observed in reviewing

18 U.S.C. § 2246(2)(C)(1994), a federal statute defining “sexual

act” in a case involving a charge of object sexual penetration

of a child wearing blue jeans and underwear:

     The statute applies without qualification to
     “penetration, however slight,” with the required
     intent. The statute gives no indication Congress
     intended to treat penetration through an intervening
     material differently from direct penetration, and we
     can think of no valid reason for such a difference in
     treatment. The two acts are comparably invasive.

          Unquestionably, some penetration could occur
     through pliable clothing, like underwear. The
     existence of intervening material, such as clothing,
     may raise an issue of fact regarding whether
     penetration occurred, and a trier of fact may
     reasonably infer the likelihood of penetration is
     inversely proportional to the amount (or non-pliable
     nature) of the intervening material. Existence of
     such material does not, however, protect defendants
     from prosecution under the statute.

United States v. Norman T., 129 F.3d 1099, 1103 (10th Cir.

1997), cert. denied, 523 U.S. 1031 (1998).

     For these reasons, we will affirm the judgment of the Court

of Appeals of Virginia denying the defendant’s petition for

appeal.

                                                         Affirmed.



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