                  COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Willis and Elder
Argued at Richmond, Virginia


JESSE WILSON
                                      MEMORANDUM OPINION * BY
v.        Record No. 2636-96-2      JUDGE JERE M. H. WILLIS, JR.
                                         NOVEMBER 4, 1997
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY
                    William L. Wellons, Judge
          Joseph M. Teefey, Jr., Assistant Public
          Defender (Office of the Public Defender, on
          brief), for appellant.

          Leah A. Darron, Assistant Attorney General
          (Richard Cullen, Attorney General, on brief),
          for appellee.



     On appeal of his conviction for sexual battery in violation

of Code § 18.2-67.4, Jesse Wilson contends that the evidence was

insufficient to prove that he committed sexual abuse against the

will of the complaining witness through the use of force.   We

agree and reverse the judgment of the trial court.
          On appeal, we review the evidence in the
          light most favorable to the Commonwealth,
          granting to it all reasonable inferences
          fairly deducible therefrom. 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.

Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
(1987).

       G.W., the complaining witness, testified that during a

scheduled work break, she went to the employee cafeteria to

purchase a soda.    Upon entering the room, she went directly to

the soda machine.    She did not speak to Wilson.    While standing

in front of the soda machine, she felt someone grab and squeeze

her buttocks.   She turned and saw Wilson standing behind her.

She told him angrily, "Don't ever do that again."     He responded,

"It looked so tempting, I just had to do it."      G.W. stated that

Wilson grabbed her with such force that she had to step forward

to maintain her balance.   At trial, she demonstrated how he

grabbed her buttocks with an open hand and squeezed.     Wilson

admitted being in the cafeteria with G.W., but denied touching

her.
       Code § 18.2-67.4 provides, in part, that:    "An accused shall

be guilty of sexual battery if he or she sexually abuses the

complaining witness against the will of the complaining witness,

by force . . . . "   "Sexual abuse" is defined, in part, as an act

committed when "[t]he accused intentionally touches the

complaining witness' intimate parts or material directly covering

such intimate parts."   Code § 18.2-67.10(6)(a).     "Intimate parts"

includes the "buttocks."   Code § 18.2-67.10(2).

       The Commonwealth argues that Wilson is barred from raising

the issue of force for the first time on appeal. 1    Except for
       1
      While the trial transcript indicated that Wilson raised the
issue of force in his motion to strike the evidence, the



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"good cause shown" or to "attain the ends of justice," Rule 5A:18

prohibits the consideration on appeal of questions not presented

first to the trial court.   In deciding whether to apply the "ends

of justice" exception, we have noted that:

            "[T]he 'ends of justice' provision may be
            used when the record affirmatively shows that
            a miscarriage of justice has occurred, not
            when it merely shows that a miscarriage might
            have occurred." Obviously, the applicability
            of this exception cannot be determined on the
            mere assertion of the general rule, but
            necessarily requires our review of the
            record.

Johnson v. Commonwealth, 5 Va. App. 529, 532, 365 S.E.2d 237, 239

(1988) (emphasis in original) (quoting Mounce v. Commonwealth, 4

Va. App. 433, 436, 357 S.E.2d 742, 744 (1987)).   For the reasons

that follow, we invoke the "ends of justice" exception and

consider the merits of Wilson's appeal.    See Johnson, 5 Va. App.

at 532-35, 365 S.E.2d at 239-40 (evidence showed that "force," an

element of the offense of aggravated sexual battery, was not

present).

     Wilson touched G.W. in an intimate area against her will.

transcript was never properly made a part of the record on
appeal. See Rules 5A:7(a)(7), 5A:8. In the written statement of
facts, Wilson's motion to the trial court stated that:
          [T]he Commonwealth failed to prove that the
          Defendant sexually abused the complaining
          witness pursuant to Va. Code § 18.2-67.4.
          The Defendant further argued that . . . the
          Commonwealth bears the burden of proof that
          the defendant performed the act with the
          intent to sexually molest, arouse or gratify
          any person.




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To constitute sexual battery, the force employed by Wilson to

overcome G.W.'s will requires "some force other than merely that

force required to accomplish the unlawful touching . . . ."     Id.

at 534, 365 S.E.2d at 240.   G.W. had her back to Wilson and was

unaware that he was behind her.   Wilson employed no force beyond

that necessary to squeeze G.W.'s buttocks.   While the unlawful

touching was patently nonconsensual, it was accomplished by

surprise, not by force.   See id. at 535, 365 S.E.2d at 240

(defendant got into bed with complainant and touched his

genitalia).   Convicting Wilson for a sexual offense that the

evidence proves he did not commit constituted a miscarriage of

justice.   Despite Wilson's harassing and reprehensible conduct,

the evidence in this case is insufficient to sustain a conviction

under Code § 18.2-67.4.
     Accordingly, we reverse the conviction and remand the case

for further proceedings, if the Commonwealth be so advised.

                                         Reversed and remanded.




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