                    COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Benton, Coleman,
     Willis, Elder, Bray, Annunziata, Overton, Bumgardner
          and Lemons
Argued at Richmond, Virginia


CLIFTON MASON, S/K/A
 CLIFTON B. MASON
                                          MEMORANDUM OPINION * BY
v.        Record No. 0309-97-2           JUDGE SAM W. COLEMAN III
                                            NOVEMBER 10, 1998
COMMONWEALTH OF VIRGINIA

                       UPON A REHEARING EN BANC

         FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
                   Oliver A. Pollard, Jr., Judge

          Neil Kuchinsky (Neil Kuchinsky & Associates,
          on brief), for appellant.

          Kathleen B. Martin, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.



     In a bench trial, appellant, Clifton Mason, was convicted of

four counts of taking indecent liberties with a minor in

violation of Code § 18.2-370.    On appeal, he contends the

evidence was insufficient to support the convictions.      A divided

panel of this Court found the evidence insufficient as to all

four counts.    We granted a petition to rehear en banc two of
those counts.   Upon rehearing en banc, we find that the evidence

was sufficient to prove that Mason exposed himself to A.W. and

T.B. within the meaning of Code § 18.2-370.       For this reason, we

affirm those convictions.
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
                              BACKGROUND

     "On appeal, we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom."     Martin v. Commonwealth,

4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).

     Appellant was convicted of taking indecent liberties with

A.W. and T.B. in violation of Code § 18.2-370.    At the time of

the alleged incidents, both victims were under the age of

thirteen.
     At trial, T.B. testified that appellant touched her breasts

and vagina with his hands, pulled down her underpants, and rubbed

his penis on her vagina.   She further testified that appellant

also tried to insert his penis into her vagina, but he did not

succeed because she moved away from him.    The incident happened

at night in an unlighted room.

     A.W. testified that appellant touched her breasts with his

hands, pulled down her underwear to her knees, and touched her

between her legs with his "private part."    A.W. further testified

that appellant tried to insert his "private part" into her

"private part."   Eventually, appellant stopped trying to

penetrate her and left the room.    This incident also occurred at

night in an unlighted room.

     At the conclusion of all the evidence, appellant argued that

his conduct did not constitute taking indecent liberties as

defined by Code § 18.2-370.    The sole issue is whether the



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evidence is sufficient to show that defendant exposed himself

within the meaning of Code § 18.2-370. 1

                             ANALYSIS

     When the sufficiency of evidence is challenged on appeal, an

appellate court must review the evidence that tends to support

the conviction and must uphold the conviction unless it is

plainly wrong or lacks evidentiary support.    See Code § 8.01-680;

Commonwealth v. Jenkins, 255 Va. 516, 520, 499 S.E.2d 263, 265

(1998).   "If there is evidence to support the convictions, the

reviewing court is not permitted to substitute its own judgment,

even if its opinion might differ from the conclusions reached by

the finder of fact at the trial."      Id.

     T.B. testified that Mason pulled down her underpants and

"rubbed his penis on her vagina."   Although T.B. did not testify

that she visually observed Mason's penis, she testified that

Mason "rubbed" his penis on her.    Similarly, A.W. testified that

Mason "touched her between her legs with his `private part.'"

The inference which the fact finder was entitled to draw from

A.W.'s testimony was that Mason touched her between her legs with

his penis.   See e.g., Fisher v. Commonwealth, 228 Va. 296, 298,

321 S.E.2d 202, 203 (1984) (drawing the inference that "private
     1
      The Commonwealth contends on brief and at oral argument
that the appellant is procedurally barred by Rule 5A:18 from
raising a separate sufficiency claim as to these two counts.
However, we granted the Commonwealth's petition to reconsider the
merits of the trial court's convictions. The panel
satisfactorily addressed the procedural bar issue, and we decline
to reconsider those arguments.




                               - 3 -
parts" in a girl's testimony described her vagina); Crump v.

Commonwealth, 20 Va. App. 609, 611-12, 460 S.E.2d 238, 239 (1995)

(drawing inference that "private parts" in child's testimony

referred to genitalia).   The Commonwealth offered no evidence

that A.W. or T.B. visually observed Mason's genitalia.

     Any person at least eighteen years old who, "with lascivious

intent, . . . knowingly and intentionally:    (1) Expose[s] his or

her sexual or genital parts to any child under the age of

fourteen years to whom such person is not legally married"

commits the crime of taking indecent liberties with children.

Code § 18.2-370.
     Mason argues that "expose" requires proof of visual

perception.   Although the victims felt Mason's penis touching

them, he contends that because the victims did not visually

observe the penis, he did not "expose" himself.     As defined in

the Webster's Third New International Dictionary 802 (1991),

"expose" means "to lay open to view:    lay bare:   make known:   set

forth:   exhibit, display."   Common usage of the word "expose"

also encompasses more than "lay open to view."      For example, a

person is exposed to a toxin even though the person may have no

visual perception of the substance.     "Exposure" means not only to

"lay open to view" but also to "lay open to feel or to touch."

     The Virginia Supreme Court has interpreted the word "expose"

in the context of a Charlottesville city ordinance.      See Wicks v.
Charlottesville, 215 Va. 274, 276, 208 S.E.2d 752, 754-55 (1974)




                                - 4 -
(upholding conviction under indecent exposure ordinance where

witness saw defendant holding his hand in front of his pants and

urinating on public street but could not actually see organ being

held by hand).   In that case, the Supreme Court declined to adopt

an interpretation that would restrict indecent exposure to

incidents where the offending exposure was actually observed by

one or more persons.   See id.   Similarly, we decline to adopt the

more restrictive definition of "exposure" as suggested by Mason

in the context of Code § 18.2-370.
     The evidence proved that Mason physically touched the

victims' genitals with his bare penis, and this conduct was

sufficient to support the trial court's finding that Mason

"knowingly and intentionally . . . expose[d] . . . his genital

parts" in violation of Code § 18.2-370.   Accordingly, we affirm

the trial court's conviction with respect to these offenses.

                                                         Affirmed.




                                 - 5 -
Benton, J., dissenting.

     In accord with well established principles of statutory

construction, "penal statutes must be strictly construed against

the Commonwealth and applied only to those cases clearly falling

within the language of the statute."    Branch v. Commonwealth, 14

Va. App. 836, 839, 419 S.E.2d 422, 424 (1992).   When applying

this principle, we must adhere to the equally "important

principle . . . that '[w]ords in a statute are to be construed

according to their ordinary meaning, given the context in which

they are used.'"   City of Virginia Beach v. Board of Supervisors

of Mecklenburg Co., 246 Va. 233, 236, 435 S.E.2d 382, 384 (1993)

(quoting Grant v. Commonwealth, 223 Va. 680, 684, 292 S.E.2d 348,

350 (1982)).   Thus, the act that is charged "must be within both

the letter and the spirit of the statute; and . . . [the accused]

is entitled to the benefit of any reasonable doubt in the

construction of the statute."    Price v. Commonwealth, 209 Va.

383, 385, 164 S.E.2d 676, 678 (1968).

     In pertinent part, Code § 18.2-370 provides:
          Any person eighteen years of age or over,
          who, with lascivious intent, shall knowingly
          and intentionally: (1) Expose his or her
          sexual or genital parts to any child under
          the age of fourteen years to whom such person
          is not legally married or propose that any
          such child expose his or her sexual or
          genital parts to such person or (2)
          [Repealed.] (3) Propose that any such child
          feel or fondle the sexual or genital parts of
          such person or propose that such person feel
          or fondle the sexual or genital parts of any
          such child; or (4) Propose to such child the
          performance of an act of sexual intercourse
          or any act constituting an offense under


                                - 6 -
           § 18.2-361 . . . shall be guilty of a Class 6
           felony.


     For purposes of this appeal, the relevant conduct proscribed

in Code § 18.2-370(1) is "[e]xpose . . . sexual or genital

parts."   Thus, by its plain and unambiguous terms, Code

§ 18.2-370 speaks only to the exposure of an accused's sexual or

genital parts to a child or propositioning a child to expose his

or her sexual or genital parts to the accused.    Code § 18.2-370

does not encompass cases where the accused touches the child or

the child is caused to touch the accused.   The word "expose"

ordinarily means to lay open to view.    See Webster's Third New

International Dictionary 802 (1991).    I find no authority for the

proposition that "expose" means "to lay open to feel or touch."

     The evidence did not prove that the children saw or had the

opportunity to see appellant's genitals during the sexual

incidents they described.   None of the children testified that

appellant exposed his genitals to their sight.    One child

testified that appellant attempted to put his penis in her

vagina, and the second child testified that appellant touched her

between her legs with his "private part."   At all times relevant

to these incidents, however, the room was dark.    No evidence

proved the children saw or could have seen appellant's genitals.

The other two children testified that the appellant touched or

fondled their breasts and vaginas with his hand.   Thus, the

evidence failed to establish that appellant exposed his genitals

to any of the four children.   Consequently, I would hold that


                               - 7 -
appellant's actions, as related by the children, did not fall

within the conduct prohibited by Code § 18.2-370.

     The Commonwealth argues that it is irrelevant whether the

children "visually . . . observed his penis."    The Commonwealth

contends that by touching the child with his penis, appellant

violated the statutory proscription.     To prevail on that theory,

however, the Commonwealth "must show that the words of the

[statute] distinctly cover the case.     No conviction can be had if

the words [of the statute] are merely equally capable of a

construction that would, and one that would not, inflict the

penalty."     McKay v. Commonwealth, 137 Va. 826, 830, 120 S.E. 138,

139 (1923).

     When we consider the ordinary meaning of the word "expose"

within the context of Code § 18.2-370, we must examine both the

1981 amendment to Code § 18.2-370 and the statutes enacted in

lieu of the language deleted from Code § 18.2-370.    In 1981, the

General Assembly amended Code § 18.2-370 to eliminate subsection

(2), which read:    "In any manner fondle or feel, or attempt to

fondle or feel, the sexual or genital part of any such child, or

the breast of any such female child."    The proscriptions formerly

contained in subsection (2) are now found in other statutes.

Code § 18.2-67.3(A), which the General Assembly enacted in 1981

in its revision of the sexual abuse statutes, reads as follows:

"An accused shall be guilty of aggravated sexual battery if he or

she sexually abuses the complaining witness, and . . . [t]he



                                 - 8 -
complaining witness is less than thirteen years of age."    Code

§ 18.2-67.10(6) defines "sexual abuse" 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."   I believe the General Assembly would not have

transferred prohibition against such conduct from Code § 18.2-370

to Code § 18.2-67.3 if it had intended to continue such

prohibition under subsection (1) of Code § 18.2-370.    See Roger

D. Groot, Criminal Offenses and Defenses in Virginia 387 (3rd ed.

1994) ("Section 18.2-370 formerly criminalized fondling; that

portion has been repealed and is found in § 18.2-67.3.").

     Although the Commonwealth and the majority cite Wicks v.

Charlottesville, 215 Va. 274, 208 S.E.2d 752 (1974), as support

for an expanded definition of the word "expose," that case does

not lend comfort to the Commonwealth's argument in this case.

Wicks was prosecuted because he "urinated on a public street in

the presence of others."   Id. at 275, 208 S.E.2d at 754.   On

appeal from his conviction, the Supreme Court interpreted a

Charlottesville ordinance that codified the common law offense of

indecent exposure in a public place.   Id.   See also Noblett v.

Commonwealth, 194 Va. 241, 244-45, 72 S.E.2d 241, 243 (1952).

The Court noted that "indecent exposure" means "'[e]xposure to

sight of the private parts of the body in a lewd or indecent

manner in a public place.'"   Wicks, 215 Va. at 276, 208 S.E.2d at




                               - 9 -
754 (citation omitted) (emphasis added).   Based in significant

part on this definition, the Court "construe[d] the first six

words of the Charlottesville . . . Code [, 'No person shall

indecently expose himself,'] as contemplating an intentional and

indecent exposure in a public place where it is likely to be

seen, whether actually seen by one or several persons."     Id. at

276, 208 S.E.2d at 755 (emphasis added).

     The statute at issue in this case, Code § 18.2-370, is not a

codification of a common law rule and does not parallel the

ordinance addressed in Wicks.    If Wicks has any bearing on this

case, it is because the Supreme Court in applying the common law

principle of indecent exposure recognized the necessity of a

visual connotation to "exposure" by requiring "'that the act is

seen or is likely to be seen by casual observers.'"     215 Va. at

275, 208 S.E.2d at 754 (emphasis added) (quoting Noblett, 194 Va.

at 245, 72 S.E.2d at 243).

     The evidence in this case, unlike in Wicks and Noblett, did

not prove that the acts occurred under circumstances where the

appellant's genitals were seen or even likely to have been seen

by the children.   No authority suggests that by proving the

appellant touched the children with his genitals, the

Commonwealth is thereby relieved of its burden of proving beyond

a reasonable doubt that appellant exposed his genitals.    His

genitals were neither seen, as required by the ordinary meaning

of Code § 18.2-370, nor "likely to be seen," if we are required



                                - 10 -
to use the Wicks common law definition of indecent exposure in a

public place.   215 Va. at 276, 208 S.E.2d at 755 (emphasis

added).

     Simply put, the Commonwealth brought this prosecution under

the wrong statute.   The Commonwealth proceeded in disregard of

the General Assembly's repeal of subsection (2) from Code

§ 18.2-370.    Thus, for these reasons and for the reasons stated

in the panel opinion issued May 5, 1998, I would reverse the

convictions.




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