                                             COURT OF APPEALS OF VIRGINIA


              Present: Chief Judge Decker, Judge Alston and Senior Judge Frank
              Argued at Norfolk, Virginia
UNPUBLISHED




              TIMOTHY MICHAEL BUSH
                                                                              MEMORANDUM OPINION* BY
              v.     Record No. 0409-18-1                                      JUDGE ROBERT P. FRANK
                                                                                   APRIL 16, 2019
              COMMONWEALTH OF VIRGINIA


                               FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
                                          Frederick B. Lowe, Judge Designate

                               Kristin Paulding (7 Cities Law, on brief), for appellant.

                               Rosemary V. Bourne, Senior Assistant Attorney General (Mark R.
                               Herring, Attorney General, on brief), for appellee.


                     Appellant, Timothy M. Bush, was convicted in a bench trial of aggravated sexual battery

              of his stepdaughter, M.M., and sexual battery of his niece, A.S. He contends on appeal that the

              evidence was not sufficient to sustain the convictions.

                                                         BACKGROUND

                     We view the evidence in the light most favorable to the Commonwealth, as it was the

              prevailing party in the trial court. See, e.g., Riner v. Commonwealth, 268 Va. 296, 330 (2004).

                     When M.M. was fifteen years old, she awakened to find appellant rubbing her vagina.

              Appellant had been her stepfather since she was a young child. At the time of the offense,

              appellant, M.M., and her mother and two sisters lived in a home in Chesapeake. M.M.’s

              bedroom was in a converted attic where it was often hot, so she sometimes slept at the foot of her

              parents’ king-sized bed, which was more comfortable. Sometime during the summer of 2015,



                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
M.M. was sleeping on the foot of her parents’ bed when she woke up at “around 5:00 a.m. to

[appellant] touching [her]” on her vagina. M.M. was wearing pants, and appellant touched her

over her clothing. M.M. had been dreaming “a sexual dream” in which her boyfriend had his

hands in her “private area.” While she was “half-asleep,” and still thinking of her boyfriend,

M.M. said, “don’t stop,” when she felt the hand pull away. The hand returned. M.M. fully

awoke when she “went to put [her] hands on his hands,” and felt “hairy knuckles like a

forty-year-old man’s hands.” She realized it was not a “kid’s hand” but an older man’s hand.

She pushed the hand away, but “then his hand was there again.” M.M. climbed out of the bed

and slept on the floor, but she did not tell anyone then because she was “scared” and “wanted to

pretend it never really happened.” Appellant moved out of the house several months later, and

M.M. told her mother about the incident in January 2016.

       Before the touching incident, appellant had frequently talked to M.M. about her older

sister D.M., saying that M.M. didn’t “show off her body like [D.M.] does. How come you

don’t?” He told M.M. that she had “pretty cleavage” and once sent her a message, “show me

your boobs.” On other occasions when M.M. was sleeping on her parents’ bed during the day,

she woke up to appellant moving the blankets and a “bright light in her face.” M.M. pretended

to be asleep and noticed appellant moving his cell phone across the blankets.

       In June 2016, appellant texted M.M., writing “I miss. All most [sic] nude but I miss u

nude even though I didn’t see u a lot. I go back and look at pic’s. I no [sic] I sound like a perv

but it’s the truth.” A screenshot of this message was introduced into evidence as

Commonwealth’s Exhibit 1. M.M. testified that the text message “kind of scared” her because

she had never shared nude pictures of herself with appellant.

       A.S., M.M.’s sixteen-year-old cousin, sometimes visited appellant’s residence. On one

such occasion during the day in 2015, A.S. went into her aunt’s bedroom to sleep because it was

                                                -2-
cooler than the attic bedroom. A.S. awoke to feel a body behind her; appellant had one of his

hands in her shorts touching her vaginal area and his other hand under her shirt touching her

chest. A.S. left the room. She testified that appellant had asked her and M.M. if they had

“made-out” before, suggested that they do so, and asked them “whose boobs were bigger and

whose nipples were lighter.” Appellant also asked A.S. to watch pornography with him.

       When interviewed by the police in November 2016, appellant denied touching M.M. and

A.S. inappropriately. He initially admitted sending the text message, but said that it had been

intended for M.M.’s mother, and he later denied sending the message. He also said M.M.’s

mother had threatened to have him arrested as a ploy to force him to pay more spousal support.

       In finding appellant guilty of one count of aggravated sexual battery against M.M. and

one count of sexual battery against A.S., the trial court based its decision on credibility of the

witnesses.1 This appeal follows.

                                            ANALYSIS

                                   I. Aggravated Sexual Battery

       In challenging the sufficiency of the evidence to prove aggravated sexual battery,

appellant argues that he did not have the requisite intent to commit the offense because he was

asleep and there was no evidence that he was awake when the touching took place.

       When an appellant challenges the sufficiency of the evidence supporting a conviction,

“the judgment of the trial court shall not be set aside unless it appears from the evidence that

such judgment is plainly wrong or without evidence to support it.” Code § 8.01-680. When

reviewing the sufficiency of evidence, this Court “must . . . ask whether ‘any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.’” Kin Yiu



       1
          The trial court found appellant not guilty of one count of sexual battery of A.S. and not
guilty of indecent liberties.
                                                -3-
Cheung v. Commonwealth, 63 Va. App. 1, 8 (2014) (quoting Crowder v. Commonwealth, 41

Va. App. 658, 663 (2003)). “If there is evidence to support the conviction, an appellate court is

not permitted to substitute its own judgment for that of the finder of fact, even if the appellate

court might have reached a different conclusion.” Id. (quoting Conrad v. Commonwealth, 31

Va. App. 113, 123 (1999) (en banc)). “This deferential standard of review ‘applies not only to

the historical facts themselves, but [also to] the inferences from those facts.’” Bennett v.

Commonwealth, 69 Va. App. 475, 492 (2018) (quoting Crowder, 41 Va. App. at 663 n.2).

       The sole responsibility to determine the credibility of the witnesses, the weight to be

given to their testimony, and the inferences to be drawn from proven facts lies with the fact

finder. Commonwealth v. McNeal, 282 Va. 16, 22 (2011); Parham v. Commonwealth, 64

Va. App. 560, 565 (2015). “Potential inconsistencies in testimony are resolved by the fact

finder. We do not revisit such conflicts on appeal ‘unless the evidence is such that reasonable

[persons], after weighing the evidence and drawing all just inferences therefrom, could reach but

one conclusion.’” Towler v. Commonwealth, 59 Va. App. 284, 292 (2011) (quoting Molina v.

Commonwealth, 47 Va. App. 338, 369, aff’d, 272 Va. 666 (2006)). The fact finder “[i]s free to

believe or disbelieve, in part or in whole, the testimony of any witness.” Bazemore v.

Commonwealth, 42 Va. App. 203, 213 (2004) (en banc) (citing Rollston v. Commonwealth, 11

Va. App. 535, 547 (1991)).

       Code § 18.2-67.3 states in part:

               A. An accused shall be guilty of aggravated sexual battery if he or
               she sexually abuses the complaining witness, and

                  ....

               3. The offense is committed by a parent, step-parent, grandparent,
               or step-grandparent and the complaining witness is at least 13 but
               less than 18 years of age . . . .



                                                -4-
“Sexual abuse” is defined 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[.]”2 Code § 18.2-67.10(6)(a).

       Appellant does not contest that he was the stepparent of M.M., nor that she was at least

thirteen but less than eighteen years of age. His contention is that he did not touch her, but even

if there was touching, it was not intentional, nor did he have any intent to sexually abuse M.M.

His argument is premised on his claim that he was asleep when the touching occurred.

       The trial court accepted M.M.’s testimony that appellant touched her vagina over her

clothing. If believed, M.M.’s testimony was sufficient to prove the offense, as a conviction for a

sexual offense may be sustained solely upon the uncorroborated testimony of the victim. See

Nobrega v. Commonwealth, 271 Va. 508, 519 (2006); Le v. Commonwealth, 65 Va. App. 66, 77

(2015). The fact that M.M. delayed in telling anyone about the offense does not make her

testimony incredible; rather, it was up to the court, sitting as the fact finder, “to determine what

effect, if any, the delay in reporting the incident had on the credibility of the child’s testimony.”

Love v. Commonwealth, 18 Va. App. 84, 90 (1994).

       M.M.’s testimony proved that appellant was awake during the touching. M.M. initially

thought, in her dream, that her boyfriend was touching her. When appellant withdrew his hand,

she said, “Don’t stop,” and appellant again placed his hand on her vagina. This evidence clearly

indicates that appellant was awake and aware and responded to M.M.’s statement.

       “Intent is the purpose formed in a person’s mind and may be, and frequently is, shown by

the circumstances. It is a state of mind which may be proved by a person’s conduct or by his

statements.” Mason v. Commonwealth, 49 Va. App. 39, 45 (2006) (quoting Haywood v.



       2
        “‘Intimate parts’ means the genitalia, anus, groin, breast, or buttocks of any person.”
Code § 18.2-67.10(2).
                                               -5-
Commonwealth, 20 Va. App. 562, 565 (1995)). “Whether the required intent exists is generally

a question for the trier of fact.” Id. (quoting Crawley v. Commonwealth, 25 Va. App. 768, 773

(1997)).

       Appellant’s intent to sexually abuse M.M. appears not only on the date of the touching

but also is manifested in a course of conduct indicating he had a sexual attraction to M.M. He

had made numerous sexual comments about their breasts to M.M. and A.S. It also may be

reasonably inferred that appellant had taken nude photos of M.M. while she was asleep. On one

occasion, M.M. was awakened to find appellant moving his cell phone under the blankets and a

“bright light in her face.” Appellant sent her a text message that he missed seeing her nude.

       The evidence was sufficient to prove appellant guilty of aggravated sexual battery, and

we affirm that conviction.

                                         II. Sexual Battery

       A conviction for sexual battery requires proof that the accused sexually abused, as

defined in Code § 18.2-67.10, “the complaining witness against the will of the complaining

witness, by force, threat, intimidation, or ruse . . . .”3 Code § 18.2-67.4(A)(i).

       Appellant contends that the evidence was insufficient to prove sexual battery because the

evidence failed to show that he sexually abused A.S. by force, threat, intimidation, or ruse. The

Commonwealth concedes that the evidence was insufficient to sustain appellant’s conviction.

               Such concessions embody the ethical duties expected of a legal
               advocate for the Commonwealth and are held in high esteem.
               Concessions of legal error, however, do not relieve the appellate
               court of its responsibility to perform its judicial function. While
               such concessions are entitled to great weight, they do not remove
               the Court’s obligation to conduct its own review.

Joseph v. Commonwealth, 64 Va. App. 332, 336 n.2 (2015) (citations omitted).


       3
         It should be noted that mental capacity and a physical helplessness are not elements of
the offense.
                                               -6-
       A.S. testified that she had been sleeping when she felt a person behind her, putting his

hand in her shorts, touching her “private area.” He also put his hand under her shirt, touching

her chest. When she woke up and realized what had happened, she left the room and ran

downstairs, leaving appellant on the bed. By her own testimony, the sexual battery was not

accomplished by force, threats, intimidation, or ruse.

       However, the Commonwealth contends that appellant is guilty of assault and battery, a

lesser-included offense of sexual battery.4 See Gnadt v. Commonwealth, 27 Va. App. 148, 151

(1998) (assault and battery is a lesser-included offense of sexual battery). A battery is an

unlawful touching of another. Id. at 152. “[T]he slightest touching of another . . . if done in a

rude, insolent, or angry manner, constitutes a battery for which the law affords redress.”

Crosswhite v. Barnes, 139 Va. 471, 477 (1924). Clearly, the evidence is sufficient to prove

appellant committed an assault and battery on A.S. by touching her “private area” and chest,

although the evidence is insufficient to prove sexual battery.

       The Commonwealth suggests remanding the sexual battery conviction for resentencing

on the lesser offense of assault and battery. This Court has two options in this case. This Court

can remand for sentencing for the lesser-included offense if both parties consent. See

Commonwealth v. South, 272 Va. 1, 1 (2006) (holding that, in cases where the evidence is

insufficient to support conviction of a greater offense, remand for sentencing on a lesser offense

is appropriate if the parties consent); Salazaar v. Commonwealth, 66 Va. App. 569, 575 n.3

(2016). Without such consent, we must remand for a new trial on the lesser-included offense, if

the Commonwealth be so advised. See Britt v. Commonwealth, 276 Va. 569, 576 (2008);




       4
          The crime of assault and the crime of battery are independent criminal acts, although
they are linked in Code § 18.2-57.
                                                -7-
Frango v. Commonwealth, 66 Va. App. 34, 46 (2016). Appellant stated at oral argument that he

does not agree to remanding the case for resentencing.

                                         CONCLUSION

       We affirm appellant’s conviction for aggravated sexual battery of M.M. We reverse his

conviction for sexual battery of A.S. and remand the case for a new trial on assault and battery.

                                                 Affirmed in part; reversed and remanded in part.




                                               -8-
