VIRGINIA:
           In the Court of Appeals of Virginia on Tuesday           the 12th day of February, 2019.


Johnathan Reeves Robinson,                                                                           Appellant,

against             Record No. 1679-17-2
                    Circuit Court No. CR17000069-00

Commonwealth of Virginia,                                                                            Appellee.


                                     Upon a Petition for Rehearing En Banc


                         Before Chief Judge Decker, Judges Humphreys, Petty, Beales,
                             Huff, Chafin, O’Brien, Russell, AtLee and Malveaux


       On January 29, 2019 came the appellee, by the Attorney General of Virginia, and filed a petition

requesting that the Court set aside the judgment rendered herein on January 15, 2019, and grant a rehearing en

banc on the issue(s) raised in the petition.

       On consideration whereof and pursuant to Rule 5A:35 of the Rules of the Supreme Court of Virginia,

the petition for rehearing en banc is granted and the appeal of those issues is reinstated on the docket of this

Court. The mandate previously entered herein is stayed pending the decision of the Court en banc.

       The parties shall file briefs in compliance with the schedule set forth in Rule 5A:35(b). The appellant

shall attach as an addendum to the opening brief upon rehearing en banc a copy of the opinion previously

rendered by the Court in this matter. An electronic version of each brief shall be filed with the Court and

served on opposing counsel. In addition, four printed copies of each brief shall be filed.
It is further ordered that the appellee shall file an electronic version and four additional copies of the appendix

previously filed in this case.1

                                           A Copy,

                                                  Teste:

                                                                        Cynthia L. McCoy, Clerk

                                                           original order signed by a deputy clerk of the
                                                  By:      Court of Appeals of Virginia at the direction
                                                           of the Court

                                                                        Deputy Clerk




        1
       The guidelines for filing electronic briefs and appendices can be found at
www.courts.state.va.us/online/vaces/resources/guidelines.pdf.
                                                    -2-
                                              COURT OF APPEALS OF VIRGINIA


              Present: Judges Beales, O’Brien and Malveaux
              Argued at Richmond, Virginia
UNPUBLISHED




              JOHNATHAN REEVES ROBINSON
                                                                              MEMORANDUM OPINION* BY
              v.     Record No. 1679-17-2                                    JUDGE MARY GRACE O’BRIEN
                                                                                   JANUARY 15, 2019
              COMMONWEALTH OF VIRGINIA


                                     FROM THE CIRCUIT COURT OF AMELIA COUNTY
                                                  Paul W. Cella, Judge

                               Timothy A. Hennigan (The Nguyen Law Firm, PLC, on brief), for
                               appellant.

                               Donald E. Jeffrey, III, Senior Assistant Attorney General (Mark R.
                               Herring, Attorney General, on brief), for appellee.


                     Johnathan Reeves Robinson (“appellant”) was convicted in a bench trial of sexual battery by

              force, in violation of Code § 18.2-67.4(A)(i). On appeal, he argues the evidence failed to establish

              “that the alleged touching was accomplished by the use of force sufficient to overcome the victim’s

              will.” We agree and reverse appellant’s conviction.

                                                         BACKGROUND

                     In April and May of 2017, R.W.1 and her husband resided with appellant. R.W. testified

              that on May 23, 2017, she and her sister returned to the residence and knocked on the front door,

              which was locked. Appellant answered and told R.W. that she woke him up. R.W. apologized, and

              as she entered the residence, appellant stood in front of her and “grabbed [her] breasts right behind




                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                         We refer to the complaining witness by her initials to maintain her privacy.
[her] nipples and twisted as hard as he could.” R.W. stated that she “smacked his hands away” and

appellant then “smacked [her] bottom.”

       R.W.’s sister testified that she observed appellant’s action and “couldn’t believe it

happened.” She stated that when appellant grabbed her sister’s breasts, R.W. told “him to get off of

her,” and he did so “about maybe a minute later.”

       R.W. testified that appellant also touched her without consent on several other occasions

during her stay at the residence. Shortly after the May 23 incident, R.W. and her husband moved

out, and she filed a criminal complaint against appellant.

       The court denied appellant’s motion to strike and found sufficient evidence of sexual battery

based on the May 23 incident. The court stated that “because of the manner in which [R.W.] said

that [appellant] grabbed and held and twisted her breasts, the requirement of force [had been] met,”

and convicted appellant of sexual battery.

                                             DISCUSSION

       When reviewing a challenge to the sufficiency of the evidence, this Court views the

evidence in the light most favorable to the Commonwealth, the prevailing party at trial. Riner v.

Commonwealth, 268 Va. 296, 330 (2004). We will not set aside the court’s judgment unless the

decision is plainly wrong or without evidence to support it. Commonwealth v. Anderson, 278 Va.

419, 425 (2009).

       Code § 18.2-67.4(A)(i) provides that “[a]n accused is guilty of sexual battery if he sexually

abuses . . . the complaining witness against the will of the complaining witness, by force, threat,

intimidation, or ruse.” “Sexual abuse” is defined, in part, as when “[t]he accused intentionally

touches the complaining witness’s intimate parts or material directly covering such intimate parts.”

Code § 18.2-67.10(6)(a). “Intimate parts” include the breast. Code § 18.2-67.10(2).




                                                 -2-
       It is undisputed that appellant sexually abused R.W. as that term is defined in Code

§ 18.2-67.10. However, appellant asserts that the Commonwealth failed to prove that the sexual

abuse was accomplished by “force” as required by Code § 18.2-67.4(A)(i). The Commonwealth

responds that the testimony that appellant “twisted [her breasts] as hard as he could” for “about

maybe a minute” was sufficient to establish that element of the offense.

       We addressed the degree of force necessary to support a sexual battery conviction in

Johnson v. Commonwealth, 5 Va. App. 529 (1988). We stated that “[s]ome force other than merely

that force required to accomplish the unlawful touching” is required. Id. at 534. “[U]nless some

force is used to overcome the will of the complaining witness, the unlawful touching constitutes

common law assault and battery.” Id. (emphasis added). See Haynes v. Commonwealth,

No. 1778-98-3, at *2 (Va. Ct. App. Oct. 5, 1999) (defendant conceded the evidence was sufficient

to prove force where he held victim’s hands behind her back while touching her vagina).2

       Evidence that appellant acted without warning or provocation cannot satisfy the “force”

element of sexual battery. See Woodard v. Commonwealth, 27 Va. App. 405 (1998). In Woodard,

the victim entered her apartment and found the defendant inside, uninvited. Id. at 407. After the

victim told Woodard that she did not want to date him, he “squeezed her breasts, grabbed her

between her legs, and departed.” Id. The court found that although the battery was not

accomplished by force or threat, the defendant’s presence in the apartment intimidated the victim to

the extent necessary to convict him of sexual battery. Id. at 408.

       We reversed the conviction because when the defendant “simply grabbed her abruptly,” that

action did not constitute intimidation, which requires “fear of bodily harm.” Id. at 410 (citing Clark

v. Commonwealth, 12 Va. App. 1163, 1165 (1991)). Noting that the victim “had time neither to


       2
          “Although not binding precedent, unpublished opinions can be cited and considered for
their persuasive value.” Otey v. Commonwealth, 61 Va. App. 346, 350 n.3 (2012). See also Rule
5A:1(f).
                                               -3-
reflect upon [the defendant’s] conduct, nor to submit,” we held that “[w]hile the touching was

patently non-consensual and outrageously offensive, it was accomplished by surprise, not by

intimidation.” Id.

       Although the issue in the case before us is “force” as opposed to “intimidation,” a similar

analysis applies; sexual battery, under Code § 18.2-67.4(A)(i), whether achieved by force or

intimidation, requires the defendant to overcome the victim’s will. Here, while the evidence

demonstrated that appellant accomplished the battery “by surprise,” it was insufficient to prove he

committed sexual abuse by force. The restraint employed by appellant was inherent in the act itself;

it was not used to overcome her will to accomplish the non-consensual touching.

       The Commonwealth asserts that the element of force can be established by the violent

nature of the act and the fact that appellant did not release R.W. for “about maybe a minute,” citing

Clark v. Commonwealth, 30 Va. App. 406 (1999), and Kanczuzewski v. Commonwealth,

No. 2153-07-2 (Va. Ct. App. Mar. 10, 2009). Both cases addressed sexual offenses requiring proof

that a defendant’s act is “accomplished against the will of the complaining witness, by force, threat

or intimidation.” Clark, 30 Va. App. at 409 (aggravated sexual battery, in violation of Code

§ 18.2-67.3); Kanczuzewski, No. 2153-07-2, at *3 (object sexual penetration, in violation of Code

§ 18.2-67.2).

       However, the Commonwealth’s reliance on those cases is misplaced. In both, we affirmed

convictions based on evidence that the defendants’ conduct consisted of an act of force separately

identifiable from the unlawful touching. In Clark, the defendant’s act of lying on top of a victim

was more force than required to accomplish the unlawful act of touching her intimate parts. 30

Va. App. at 410. Similarly, in Kanczuzewski, the defendant’s act of “grabbing” the victim prior to a

sexual assault was “more than the force required to accomplish the unlawful touching.” No.

2153-07-2, at *4. We acknowledged that the defendant “proceeded on” groping his victim “for

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about one or two minutes” after she told him it hurt and asked him to stop, which “reinforce[d] the

trial court’s finding that force was used.” Id. at *1, *4. Here, however, any durational evidence

served only to demonstrate the non-consensual touching occurred. See id. at *4. Therefore, even if

we consider the evidence and inferences in the light most favorable to the Commonwealth, the

totality of facts cannot establish the force necessary to sustain appellant’s conviction for sexual

battery.

           Accordingly, we reverse the conviction and remand the case for further proceedings, if the

Commonwealth be so advised.

                                                                               Reversed and remanded.




                                                   -5-
Beales, J., dissenting.

        The majority, relying primarily on Johnson v. Commonwealth, 5 Va. App. 529 (1988), and

Woodard v. Commonwealth, 27 Va. App. 405 (1998), holds that “the totality of facts cannot

establish the force necessary to sustain appellant’s conviction for sexual battery.” I respectfully

disagree.

        “Viewing the evidence in the light most favorable to the Commonwealth, as we must since

it was the prevailing party in the trial court,” Riner v. Commonwealth, 268 Va. 296, 330 (2004), the

evidence shows that, as R.W. was entering the house where she and her husband lived with

appellant Robinson, appellant stood in front of her at the doorway and “grabbed [her] breasts right

behind [her] nipples and twisted as hard as he could.”3 The victim, R.W., stated that she “smacked

his hands away” and appellant then “smacked [her] bottom.” R.W.’s sister testified that she

observed appellant’s action and that, when appellant grabbed her sister’s breasts, R.W. told “him to

get off of her.” Her sister testified that appellant did not do so, however, until “about maybe a

minute later.”

        Considering the totality of the circumstances, and giving the trial judge, as the finder of fact,

the deference required, the evidence shows that appellant used more force than “merely that force

required to accomplish the unlawful touching . . . .” Johnson, 5 Va. App. at 534. In Johnson, the

evidence showed that Johnson positioned himself behind the victim, who was lying in a bed, and

“touched” the victim’s genitalia and buttocks. This Court reversed Johnson’s conviction, finding

“[s]ome force other than merely that force required to accomplish the unlawful touching” is

required. Id. In the case currently before us, however, the evidence shows the action was more than

a mere touching – because appellant “grabbed [her] breasts behind [her] nipples and twisted as hard


        3
          Testimony at trial shows that R.W. and her husband lived with appellant and his girlfriend
in a house belonging to appellant’s girlfriend. The evidence also shows that the incident at issue in
this case is not the first time that appellant touched R.W. without her consent.
                                                    -6-
as he could.” (Emphasis added.) The victim then smacked appellant’s hands sufficiently to finally

get them off of her breasts.

        Johnson also states that “[w]here the complaining witness is at least thirteen years old,

unless some force is used to overcome the will of the complaining witness, the unlawful touching

constitutes common law assault and battery.” Johnson, 5 Va. App. at 534. This requirement for the

necessary force is met in the facts of this case. The victim, by smacking away appellant’s hands and

telling him to “get off of her” not only demonstrated her lack of consent, which was not in dispute,

but also conveyed that he was using such force that she could not immediately break away and that

her will was overcome. The fact that appellant “grabbed [her] breasts right behind [her] nipples and

twisted as hard as he could” and then finally let go “about maybe a minute later” is enough for a

rational fact finder to conclude that he used force beyond that simply necessary to touch her breasts.

Indeed, the trial court found that, “because of the manner in which she said that he grabbed and held

and twisted her breasts, the requirement of force is met.” (Emphasis added.)

        The majority discusses Woodard and notes that, in that case, the trial court found the

defendant’s actions did not constitute force or threat, but instead constituted intimidation under

Code § 18.2-67.4(A). Thus, on appeal, this Court’s inquiry in Woodard, where this Court reversed

the conviction, was limited to “whether Woodard sexually abused [the victim] by intimidation.”

Woodard, 27 Va. App. at 409. In contrast to the situation in Woodard, the trial court in this case

found appellant guilty because he used the necessary force – as opposed to intimidation – to

accomplish the sexual abuse. Therefore, this Court’s decision in Woodard does not control the

outcome of this case.

        Considering the totality of the circumstances, I would hold that a rational fact finder could

conclude that appellant used more force than that necessary merely to accomplish the touching

because not only did he touch or grab the victim’s breasts but he also “twisted as hard as he could” –

                                                 -7-
and held on to her in that manner for about a minute, according to the victim’s sister, who was

standing stunned next to her. In short, given the totality of the circumstances, I simply cannot say

that no rational fact finder would have found the appellant guilty of sexual battery beyond a

reasonable doubt.

       Consequently, I would affirm the circuit court. For these reasons, I respectfully dissent.




                                                 -8-
