                     COURT OF APPEALS OF VIRGINIA

Present:   Chief Judge Moon, Senior Judges Cole and Duff


CHARLES W. SIMMONS

v.       Record No. 0460-94-3             MEMORANDUM OPINION * BY
                                        CHIEF JUDGE NORMAN K. MOON
COMMONWEALTH OF VIRGINIA                     AUGUST 29, 1995


             FROM THE CIRCUIT COURT OF THE CITY OF SALEM
                         G. O. Clemens, Judge

            Barry M. Tatel (Neil E. McNally; Key and Tatel, P.C.,
            on brief), for appellant.
            Monica S. McElyea, Assistant Attorney General
            (James S. Gilmore, III, Attorney General,
            on brief), for appellee.



     Charles W. Simmons appeals his conviction for sodomy by or

with the mouth in violation of Code § 18.2-361.     On appeal,

Simmons contends that the Commonwealth's evidence was

insufficient to convict him for oral sodomy and that the trial

court erred when it gave jury instruction number seven.     We hold

that jury instruction number seven was improper because it

singled out for emphasis a part of the evidence tending to

establish a pivotal fact in the jury's determination of Simmons's

guilt or innocence.    The instruction was also a misstatement of

the law.
     When a trial judge instructs the jury in the law, he or
     she may not "single out for emphasis a part of the
     evidence tending to establish a particular fact." . . .
     The danger of such emphasis is that it gives undue
     prominence by the trial judge to the highlighted
     evidence and may mislead the jury.

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Terry v. Commonwealth, 5 Va. App. 167, 170, 360 S.E.2d 880, 882

(1987) (citations omitted); also see Woods v. Commonwealth, 171

Va. 543, 199 S.E. 465 (1938) (reversible error for a trial judge

to single out for emphasis a part of the evidence tending to

establish a particular fact).   Furthermore, "[a] statement made

in the course of a judicial decision is not necessarily proper

language for a jury instruction."       Snyder v. Commonwealth, 220

Va. 792, 797, 263 S.E.2d 55, 58 (1980); see also Yeager v.
Commonwealth, 16 Va. App, 761, 766, 433 S.E.2d 248, 251 (1993).

       In this case, instruction number seven commented on a piece

of circumstantial evidence tending to establish a key element of

the offense charged against Simmons.      The instruction was taken

in part from the Model Jury Instructions, but was further based

on language found in Ryan v. Commonwealth, 219 Va. 439, 444-45,

247 S.E.2d 698, 702 (1978).   The instruction gave undue

prominence to the duration of the alleged sexual act which was

but one of many pieces of circumstantial evidence the jury could

have considered in reaching a verdict.      Thus, there existed a

danger that the jury would be misled because instruction seven

permitted the jury to base its decision on an inference or

presumption that duration alone was sufficient to prove

penetration.

       In holding as we do, we note that instruction number seven

was not taken verbatim from the text of Ryan, but more closely

reflects one of the case's headnotes.       Id. at 439, 247 S.E.2d at

698.    Ryan never established that duration alone could, as a

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matter of law, prove penetration.   Rather, the Court's comment

emphasized "the victim's account of Ryan's protracted assault,"

id. at 444-45, 247 S.E.2d at 702 (emphasis added), from which the

jury could reasonably infer that penetration occurred.   The Court

noted that, among other pieces of circumstantial evidence, "the

condition, position, and proximity of the parties . . . may

afford sufficient evidence of penetration to support a charge of

sodomy by cunnilingus."   Id. (citation omitted).
     Thus, for purposes of considering the sufficiency of the

evidence to support penetration the language quoted from Ryan is

instructive in what legal effect to give to the evidence of the

duration of the encounter.   However, it is not proper for the

jury to be instructed that duration alone is sufficient to prove

penetration.

     Therefore, we reverse Simmons's conviction and remand his

case for a new trial.

                                         Reversed and remanded.




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