                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Annunziata
Argued at Alexandria, Virginia


JOHN PHILLIP STOUDT
                                        MEMORANDUM OPINION * BY
v.   Record Nos. 2386-98-4            JUDGE ROSEMARIE ANNUNZIATA
             and 2387-98-4                FEBRUARY 15, 2000

COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF WINCHESTER
                    John E. Wetsel, Jr., Judge

           David H. N. Bean for appellant.

           Donald E. Jeffrey, III, Assistant Attorney
           General (Mark L. Earley, Attorney General,
           on brief), for appellee.


      John Phillip Stoudt appeals his conviction of forcible

sodomy in violation of Code § 18.2-67.1.     Stoudt contends that

the evidence failed to support a conviction of forcible sodomy,

that the trial court erred in denying his motion to strike the

Commonwealth's evidence, and that, upon a reversal of his

conviction, he should be granted a hearing to reinstate his

probation on prior offenses.   Finding the evidence insufficient

as a matter of law to sustain a conviction of forcible sodomy,

we reverse the decision of the trial court, and remand for a



     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
hearing on the reinstatement of Stoudt's probation for the prior

convictions.

                             BACKGROUND

     On October 2, 1997, Stoudt was working in the basement of

the Goodwill consignment store in Winchester, Virginia, stocking

and sorting clothes.   Working with him was the

seventeen-year-old complaining witness in this case, W.B.    W.B.

and Stoudt had not worked together or met previously.     No one

else was working with them in the basement.

     As they worked, Stoudt made a series of sexually explicit

and suggestive remarks to W.B., and he informed the youth that

he was homosexual.   Stoudt offered to perform oral sex on W.B.,

but W.B. declined.   Stoudt was not dissuaded from his advances,

however, and persisted in seeking W.B.'s consent to a sexual

encounter.   W.B. rebuffed Stoudt's advances, and informed Stoudt

that he was "straight" and had a girlfriend.   W.B. later went to

the restroom, and Stoudt followed him into it.    The restroom was

a small facility with a single toilet and sink.   Stoudt unzipped

his pants and produced his penis, and attempted to get W.B. to

touch it.    W.B. testified that he felt paralyzed with

apprehension, and was only able to stand motionless while Stoudt

exposed himself.   Stoudt then refastened his pants, and began to

touch W.B. on the legs, buttocks, and groin.   He reached inside

W.B.'s pants and exposed W.B.'s penis.    Stoudt began to perform


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fellatio on W.B., and kept his hands at first on W.B.'s legs,

then on his buttocks.   During the incident, Stoudt kneeled as he

performed fellatio on W.B., and W.B. stood with his back against

the wall of the restroom.    W.B. testified that he was frightened

during this incident and that it was only when Stoudt grasped

his buttocks that he felt the paralysis of fear lift

sufficiently to push Stoudt away.   W.B. left the restroom and

resumed working.   The incident in the restroom lasted

approximately two to three minutes.

     Stoudt followed W.B. back into the work area, where he

resumed fondling W.B., and kissed him on the neck.   W.B. told

Stoudt he needed to go outside and "get some air."   Upon exiting

the building, W.B. went to the upstairs level and reported to a

manager that he was unwilling to return to the basement.     W.B.

was so emotionally distraught that he was unable to explain the

nature of his complaint.    The police were ultimately summoned to

determine the nature of W.B.'s distress, and W.B. reported some

of the details of Stoudt's behavior.    Officer T.A. Rice

interviewed W.B. and Stoudt and, upon concluding his interview

with Stoudt, placed him under arrest.

     Stoudt was tried before a jury on April 7, 1998, on a

charge of forcible sodomy.   He was found guilty and sentenced to

twenty years imprisonment.   As a result, his probation on

previous criminal convictions was revoked, and he was ordered to


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serve the nine-year sentence on those charges concurrently with

his sentence for the sodomy conviction.      This appeal followed.

          SUFFICIENCY OF EVIDENCE TO PROVE FORCIBLE SODOMY

     In addressing whether the evidence is sufficient to sustain

a conviction, the Court considers the evidence "in the light

most favorable to the Commonwealth, granting to it all

reasonable inferences fairly deducible" from it.      Welch v.

Commonwealth, 15 Va. App. 518, 523, 425 S.E.2d 101, 105 (1992).

A jury's findings of fact will not be disturbed unless plainly

wrong or without evidence to support them.      See Peterson v.

Commonwealth, 5 Va. App. 389, 401, 363 S.E.2d 440, 448 (1987).

Inferences to be drawn from proven facts are solely within the

province of the fact finder.   See Stockton v. Commonwealth, 227

Va. 124, 145, 314 S.E.2d 371, 385, cert. denied, 469 U.S. 873

(1984).

     Code § 18.2-67.1 defines forcible sodomy as an act of

sodomy performed upon a victim against that person's will, by

means of force, threat, or intimidation, or through exploitation

of the victim's mental incapacity or physical helplessness.       The

Commonwealth conceded at trial that no force or threat was

exerted in this case.   The jury's verdict of guilt was based on

its finding that Stoudt intimidated W.B. 1


     1
       The jury was not instructed on mental incapacity or
physical helplessness as possible grounds for finding Stoudt


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     In order to prove that a defendant intimidated a victim

into submitting to a sex act, the evidence must show 1) that the

defendant caused his victim to fear some bodily harm if he or

she failed to comply with the defendant, or 2) that, under the

circumstances, the defendant imposed such a degree of

psychological or emotional pressure on a vulnerable and

susceptible victim, as to cause that person to submit to the

defendant's advances.   See Clark v. Commonwealth, 30 Va. App.

406, 410, 517 S.E.2d 260, 262 (1999) (citing Sutton v.

Commonwealth, 228 Va. 654, 663, 324 S.E.2d 665, 670 (1985)); see

also Woodard v. Commonwealth, 27 Va. App. 405, 410, 499 S.E.2d

557, 559 (1998); Clark v. Commonwealth, 12 Va. App. 1163,

1165-66, 408 S.E.2d 564, 566 (1991).

     Under either prong of the test for intimidation, the

evidence in Stoudt's case failed to support his conviction.

Applying the first prong, we note W.B. testified only that

Stoudt had made a number of sexually suggestive statements to

him and that Stoudt followed him around the work area as W.B.

did his job.   Although W.B. repeatedly rebuffed Stoudt's

advances, W.B. expressed no fear of Stoudt prior to the incident

in the restroom.   Even then, W.B. stated that he felt fearful



guilty. Rather, the court instructed it on "force, threat, or
intimidation," and during the instructions the court eliminated
force as a possibility, informing the jury that their decision
must be based on intimidation or threat.


                               - 5 -
only as the sexual contact was occurring, and he described his

fear as a feeling that he "wasn't really going to be able to

tell anybody about it."    There is no evidence that the incident

was the result of fearing bodily injury if he refused to comply.

     The record also fails to support a finding that Stoudt

applied psychological or emotional pressure to a victim who,

under the circumstances of the case, was particularly vulnerable

to psychological domination.   W.B. testified that he was

sexually experienced and that he was confident in his sexual

orientation.   He had not met Stoudt until the day the incident

occurred, and during the course of the incident he evidenced the

ability to refuse Stoudt's advances by pushing Stoudt away and

leaving the restroom and, subsequently, by leaving the basement

and reporting his distress to his supervisor.   On this record we

cannot conclude that W.B.'s will was overborne by psychological

or emotional domination.

     We accordingly find that the trial court's denial of

Stoudt's motion to strike the evidence was error, and we reverse

Stoudt's conviction for forcible sodomy and remand to the trial

court for further proceedings if the Commonwealth be so advised.

       REHEARING FOR REINSTATEMENT OF PROBATIONARY STATUS

     Having found as a matter of law that the evidence offered

against Stoudt failed to support his conviction for forcible

sodomy, we remand the case for a rehearing on the issue of


                                - 6 -
Stoudt's probationary status.    See Patterson v. Commonwealth, 12

Va. App. 1046, 1049-1050, 407 S.E.2d 43, 45 (1991).

                                Record No. 2386-98-4, reversed
                                 and remanded.
                                Record No. 2387-98-4, reversed
                                 and remanded.




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