Diego Cotoc Siquina v Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Annunziata
Argued at Alexandria, Virginia
DIEGO COTOC SIQUINA OPINION BY
v. 	Record No. 2611-97-4 	JUDGE ROSEMARIE ANNUNZIATA
DECEMBER 22, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Paul F. Sheridan, Judge
Gary H. Smith for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Diego Cotoc Siquina ("appellant") was convicted of taking
indecent liberties with a child and attempted rape. 	Appellant
challenges the sufficiency of the evidence as to both
convictions. 	For the reasons that follow, we affirm.
Under familiar principles, we view the evidence in the light
most favorable to the Commonwealth, the party prevailing below,
granting to it all reasonable inferences fairly deducible
therefrom. 	Clifton v. Commonwealth, 22 Va. App. 178, 180, 468
S.E.2d 155, 156 (1996). 	We will not reverse the judgment of the
trial court unless it is plainly wrong or without evidence to
support it. 	Code § 8.01-680.
Muaricio Maradriaga and appellant went to the apartment of
M.F., a friend of Maradriaga, and suggested they dine together.
M.F. agreed to prepare food and invited them into her kitchen
while she did so. 	M.F. did not know appellant. 	Once the food

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was ready, M.F.'s guests dined in the kitchen.
After dinner, M.F. put on a video for her five-year-old
daughter, V.B., to watch in the apartment's bedroom. 	Appellant
was in the bedroom alone with V.B., when he put his hand over her
mouth, grabbed and twisted her hand, and took her into an
adjacent bathroom. 	Closing the door behind him, appellant kissed
V.B., placing his tongue in her mouth. 	Appellant then told the
child to stoop down over the toilet. 	Demonstrating what
appellant wanted her to do at trial, V.B. indicated that she bent
over the toilet with her head toward the tank and her buttocks
facing out. 	Appellant unzipped his pants, at which time V.B. saw
his underwear. 	V.B. never saw appellant's genitals.
M.F. quickly noticed that the bathroom door was closed and
that V.B. and appellant could not be found anywhere in the
apartment. 	Her suspicions raised, M.F. went to the door and
pulled it open. 	M.F. saw appellant and V.B. standing up straight
beside the toilet and facing her. 	Appellant was immediately
behind and very close to V.B., almost touching her when M.F.
first saw them. 	As she pulled V.B. out of the room, M.F. saw
that appellant's pants and underwear were pulled down to his
feet, exposing his erect penis.
I. SUFFICIENCY OF EVIDENCE AS TO TAKING INDECENT LIBERTIES
Code § 18.2-370 provides that any person who knowingly and
intentionally "expose[s] his or her sexual or genital parts to
any child" with lascivious intent is guilty of a Class 6 felony.

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Appellant contends the evidence was insufficient for the trial
court to convict him of this crime, arguing that, in order for
one to expose his sexual or genital parts, the victim must
actually have seen such parts. 	We disagree.
The origin and contemporary definition of the verb "expose"
does not require that someone actually perceive what is being
displayed. 	"Expose" originated as an adaptation of the Latin
verb "exponere," which includes the following definitions: 	1) to
put or bring out into the open, or 2) to put on show or display.
5 The Oxford English Dictionary 578 (2d ed. 1989); Oxford Latin
Dictionary 651 (1982). 	Today, the definition has remained true
to its roots. 	Webster's Third New International Dictionary 802
(1981), defines "expose" as "to lay open to view." 	In Black's
Law Dictionary 579 (6th ed. 1990), "expose" is defined as: 	"To
show publicly; to display; to offer to the public view . . . ."
Black's definition of "indecent exposure" is also instructive:
[This t]erm refers to exhibition of those
private parts which instinctive modesty,
human decency or self-respect require shall
be kept covered in [the] presence of others.
Exposure of [a] person becomes indecent when
it occurs at such time and place where [a]
reasonable person knows or should know his
act will be open to observation of others.
Id. at 768. 	As these definitions indicate, whether an object is
actually seen by its intended audience is irrelevant to whether
that object has been exposed.
Furthermore, the Supreme Court of Virginia's interpretation
of the word "expose," as applied in the context of common law and

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statutory indecent exposure prosecutions, also refutes
appellant's argument. 	Unless it is clear from express language
that the legislature intended to deviate from the common law, we
will construe a statute "'as near to the reason of common law'"
as possible. 	Wicks v. City of Charlottesville, 215 Va. 274, 276,
208 S.E.2d 752, 755 (1974) (quoting Chichester v. Vass, 5 Va. (1
Call) 83, 102 (1797)), appeal dismissed, 421 U.S. 901 (1975).
"[T]he Legislature is presumed to have known and to have had the
common law in mind in the enactment of a statute." 	Id. 	Thus,
when evaluating the meaning of the word "expose" as it is used in
Code § 18.2-370, we may appropriately employ a common law
analysis.
According to common law, indecent exposure is an offense
when it takes place "in a public place in such a manner that the
act is seen or is likely to be seen by casual observers . . . ."
Noblett v. Commonwealth, 194 Va. 241, 245, 72 S.E.2d 241, 243
(1952) (emphasis added). 	In Wicks, the Supreme Court adopted
this analysis by upholding an indecent exposure conviction under
the City Code of Charlottesville even though no one could testify
with certainty that defendant's genitals had been seen. 	Wicks,
215 Va. at 275-76 & n.1, 208 S.E.2d at 754 & n.1. 	The Court
found that the evidence clearly established the defendant's
exposure based on the fact that the arresting officer saw him
holding his hand in front of his pants and urinating on a public
street. 	Id.

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Based on the foregoing principles, we find that appellant's
construction of the word "expose" as it is used in Code
§ 18.2-370 is drawn too narrowly. 	We hold that this section
proscribes the intentional display by an adult, with lascivious
intent, of his or her genitals in the presence of a child where a
reasonable probability exists that they might be seen by that
child, regardless of the child's actual perception of such a
display.
Here, appellant surreptitiously and forcibly took a
five-year-old girl to the seclusion of a bathroom where he
removed his pants and undershorts, exposing his erect penis under
circumstances where it was likely to be seen by her. 	Given our
construction of Code § 18.2-370 and viewing the evidence in the
light most favorable to the Commonwealth, we find that the
evidence was sufficient to establish beyond a reasonable doubt
that appellant took indecent liberties with a child.
II. 	SUFFICIENCY OF EVIDENCE AS TO ATTEMPTED RAPE
Code § 18.2-61 criminalizes rape, which includes "sexual
intercourse . . . with a child under age thirteen." 	Attempted
rape consists of "the intent to engage in sexual intercourse, and
some direct, yet ineffectual, act toward its consummation."
Fortune v. Commonwealth, 14 Va. App. 225, 228, 416 S.E.2d 25, 27
(1992). 	Appellant contends the evidence at trial neither
established the requisite intent to rape nor demonstrated a
direct act done toward the commission of rape. 	We disagree.

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A. SPECIFIC INTENT
The specific intent to rape "may, like any other fact, be
shown by circumstances. 	Intent is a state of mind which can be
evidenced only by the words or conduct of the person who is
claimed to have entertained it." 	Banovitch v. Commonwealth, 196
Va. 210, 216, 83 S.E.2d 369, 373 (1954), quoted in Bell v.
Commonwealth, 11 Va. App. 530, 533, 399 S.E.2d 450, 452 (1991).
In determining intent, the fact finder is entitled to draw
inferences from proved facts, so long as the inferences are
reasonable and justified. 	Webb v. Commonwealth, 204 Va. 24, 34,
129 S.E.2d 22, 29 (1963). 	See Fortune, 14 Va. App. at 228, 416
S.E.2d at 27 ("Specific intent to commit rape may be inferred
from conduct if such intent follows naturally from the conduct
proven. 	Where the conduct of the accused . . . points with
reasonable certainty to a specific intent to commit rape, intent
is established."). 	Moreover, in criminal attempt cases, "the
fact finder is often allowed broad latitude in determining the
specific intent of the actor." 	Id. at 229, 416 S.E.2d at 27
(inferring the specific intent to rape when the defendant,
without consent, pulled down his pants in his victim's bedroom,
ordered her to lie on a bed, grabbed and struggled with her, and
repeatedly requested oral sex in exchange for money or drugs).
See Ridley v. Commonwealth, 219 Va. 834, 837, 252 S.E.2d 313, 314
(1979) (affirming a conviction of breaking and entering with the
intent to commit larceny even though defendant had no stolen

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merchandise in his possession and there was no indication that
any merchandise had been tampered with or moved when police
apprehended him in the victim's store).
Contrary to appellant's argument, the evidence need not show
that appellant touched his victim's sexual organs or removed her
clothing to reasonably infer his specific intent to commit rape.
See Ingram v. Commonwealth, 192 Va. 794, 802-03, 66 S.E.2d 846,
850-51 (1951) (finding that the circumstantial evidence as to
appellant's motive and method of attack was sufficient to infer
an intent to commit rape, although defendant said nothing during
the attack that indicated his purpose, removed none of the
victim's clothing, and did not touch any private parts of the
victim's body). 	Accord Hart v. Commonwealth, 131 Va. 726, 751,
109 S.E. 582, 590 (1921) (finding that "[t]he mode of the attack
and the manner in which the force was exerted, unaccompanied by
any explanation or indication . . . tending to show any other
motive, was sufficient to warrant the jury in finding that the
accused intended" to rape his victim).
In this case, the evidence established that appellant
surreptitiously brought a five-year-old girl into the seclusion
of a bathroom. 	Once there, appellant suggestively kissed her on
the mouth, removed his pants and underwear while he had an
erection, and directed the child to bend over in front of him.
Given these facts and circumstances, we find that the trial court
reasonably inferred that appellant possessed the specific intent

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to rape.
B. DIRECT, INEFFECTUAL ACTS
"A direct, ineffectual act, done toward commission of an
offense need not be the last proximate act toward completion, but
'it must go beyond mere preparation and be done to produce the
intended result.'" 	Fortune, 14 Va. App. at 229, 416 S.E.2d at 28
(quoting Tharrington v. Commonwealth, 2 Va. App. 491, 494, 346
S.E.2d 337, 339 (1986)). 	Although it is impossible to adopt a
bright-line rule for distinguishing acts of mere preparation from
acts that constitute an attempt, "'it may be said that
preparation consists [of] . . . arranging the means or measures
necessary for the commission of the offense and that the attempt
is the direct movement toward the commission after the
preparations are made.'" 	Granberry v. Commonwealth, 184 Va. 674,
678, 36 S.E.2d 547, 548 (1946) (quoting 14 Am. Jur. Criminal Law
§ 67 (1938)). 	Moreover, when intent has been established, "any
slight act done in furtherance of this intent will constitute an
attempt." 	Fortune, 14 Va. App. at 229, 416 S.E.2d at 28. 	See
Martin v. Commonwealth, 195 Va. 1107, 1112, 81 S.E.2d 574, 577
(1954) ("Whenever the design of a person to commit a crime is
clearly shown, slight acts done in furtherance of this design
will constitute an attempt . . . .").
In this case, appellant forcibly took a young child into a
vacant bathroom, covering her mouth so that she could not call
for her mother. 	While removing his erect penis from his pants,

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appellant directed the child to bend over in a position that
would facilitate his rape. 	This evidence was sufficient to prove
that appellant took direct, yet ineffectual, steps toward the
commission of rape.
For the reasons stated, we find the evidence sufficient
beyond a reasonable doubt to support appellant's conviction of
attempted rape in violation of Code § 18.2-67.5.
Affirmed.