                   COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Elder and Lemons
Argued by teleconference


MICHAEL SCOTT SANDERSON
                                          MEMORANDUM OPINION * BY
v.   Record No. 1555-98-1                 JUDGE DONALD W. LEMONS
                                             JANUARY 11, 2000
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                       Robert W. Curran, Judge

           William P. Robinson, Jr. (Robinson and
           Anderson, on brief), for appellant.

           Eugene Murphy, Assistant Attorney General
           (Mark L. Earley, Attorney General, on brief),
           for appellee.


     On appeal from his conviction for aggravated sexual battery

in violation of Code § 18.2-67.3, Michael Scott Sanderson

contends that the evidence was insufficient to sustain the

conviction.   We disagree and affirm the judgment of the trial

court.

     Where the sufficiency of the evidence is an issue on

appeal, an appellate court must view the evidence and all

reasonable inferences fairly deducible therefrom in the light

most favorable to the Commonwealth.   See Cheng v. Commonwealth,

240 Va. 26, 42, 393 S.E.2d 599, 608 (1990) (citations omitted).


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
     On May 9, 1997 the eleven-year-old victim (referred to

herein as "EP"), spent the night at the home of her neighbor,

Michael Scott Sanderson.    At one point in the evening, Sanderson

emerged nude from the bathroom and asked EP to give him a towel.

Later, clad in a nightgown, EP was watching television with

Sanderson, his wife, EP's brother and Sanderson's son when

Sanderson told EP to get into his bed.    EP awakened later to

find Sanderson and his wife in bed with her.       At one point

Sanderson and his wife argued over whether they would "make

love."    According to EP, Sanderson rejected his wife's

suggestion saying, "no, there's too may 'youngens' in the

house."   Sanderson's wife angrily left the residence but

returned after "four or five minutes."

     After her return, Sanderson and his wife removed their

clothing.   Sanderson moved closer to EP and took her hand and

placed it on his bare left thigh.    She jerked her hand away.

Then Sanderson slowly pulled up her nightgown and moved it up to

her lower chest.    EP stated that "every time I was kind of

pulling it down and he kept -- kept pulling it up" and further

testified as follows:

            Q. And when he got the nightgown to the
            highest point on your body, the highest
            point up, it was, like, on your upper
            stomach, wasn't it?

            A.   It was, like on my lower chest.

            Q. Lower chest. Was it -- it wasn't
            actually touching your breasts, was it?

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          A.   No.

          Q.   It was just below your breasts?

          A. Yes. And then he had his hand on, like,
          the border of my -- well, part of his hand
          was on my chest and -- but the nightgown
          wasn't, it was just below it, and part of
          his hand was on my stomach.

     Thereafter, the trial judge asked EP to demonstrate where

Sanderson's hand had been located on her body.   The transcript

of the trial reveals that EP illustrated her testimony by

"indicating" where Sanderson's hand had been.    The trial judge

stated that EP had demonstrated that Sanderson's hand had been

"at a point where her shirt has pockets, and it's -- what would

be the breast pockets is where she's putting her hand."

     EP also testified that Sanderson touched her lower stomach,

though not "right on [her] private part."   She pulled down her

nightgown and moved further from Sanderson, but Sanderson

"scooted" closer to her again.    EP left the bed and slept on the

couch in the living room for the remainder of the night.

     At the conclusion of all the evidence, the trial judge

stated,

          It was very important for us to go through
          the steps with the witness in terms of
          determining exactly where it was that this
          lady was touched. And that's why the Court
          asked her to stand up several times, to try
          to put together where it was that the
          conduct took place on the lady's body.

     A person who sexually abuses a victim less than thirteen

years of age is guilty of aggravated sexual battery.    See Code


                                 - 3 -
§ 18.2-67.3(A).   "Sexual abuse is defined as "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).   The term

"intimate parts" means "the genitalia, anus, groin, breast, or

buttocks of any person."   Code § 18.2-67.10(2).

     Sanderson does not challenge his conviction based upon lack

of intent; rather, the only question before us on appeal is

whether he touched an "intimate part or material directly

covering an intimate part."   When asked to demonstrate where

Sanderson touched her, EP stood up and placed her hand "at a

point where her shirt had breast pockets."   By doing so, the

evidence proved that Sanderson had placed his hands either on

her breasts or on material directly covering them.   As we have

previously stated, the meaning of a victim's gestures is a

factual matter which is to be resolved by the factfinder.     See

Kehinde v. Commonwealth, 1 Va. App. 342, 347, 338 S.E.2d 356,

359 (1986).

     For the first time on appeal, Sanderson suggests that "the

record in this case is silent on whether [EP] was sufficiently

developed to have breasts."   This claim was not raised in the

trial court and is barred from consideration on appeal.     See

Rule 5A:18; Buck v. Commonwealth, 247 Va. 449, 452-53, 443

S.E.2d 414, 416 (1994).

                                 - 4 -
     Both Sanderson and his wife were nude in bed with EP.

After Sanderson and his wife argued over whether they would

"make love," Sanderson touched EP's breasts or the material

directly covering her breasts as he was trying to pull up her

nightgown.   He had appeared nude before the child earlier that

evening.   He had placed her hand on his bare thigh.   He touched

her lower stomach with his hands.   He "scooted" after her when

she pulled away from him.   We cannot say that the trial court

was plainly wrong or without evidence to support Sanderson's

conviction of aggravated sexual battery.

     The conviction is affirmed.

                                                          Affirmed.




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