Roger Lee Woodard v Commonwealth

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COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Willis and Elder
Argued at Alexandria, Virginia

ROGER LEE WOODARD
OPINION BY
Vv. Record No. 1966-97-4 JUDGE JERE M. H. WILLIS, UR.
MAY 26, 1998
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG
John W. Scott, Jr., Judge
William G. Dade for appellant.
Steven A. Witmer, Assistant Attorney General

(Mark L. Earley, Attorney General, on brief),
for appellee.

On appeal from his bench trial conviction of sexual battery
in violation of Code § 18.2-67.4, Roger Lee Woodard contends that
the evidence is insufficient to support that conviction because
(1) the complaining witness gave inconsistent statements; (2) his
alibi evidence required his acquittal; and (3) the Commonwealth
failed to prove that he sexually abused the complaining witness
against her will by intimidation. Because the Commonwealth
failed to prove that the sexual abuse was accomplished by
intimidation, we reverse the conviction and remand the case to
the trial court.

I.
On appeal, we review the evidence in the
light most favorable to the Commonwealth,
granting to it all reasonable inferences
fairly deducible therefrom. The judgment of
a trial court sitting without a jury
will not be set aside unless it appears from

the evidence that the judgment is plainly
wrong or without evidence to support it.

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Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418
(1987).
The complaining witness, herein referred to as M.S.,
testified that she arrived home from work at approximately 3:30
p.m. on January 8, 1997. 	Noticing that her front door was ajar,
she entered her apartment and went directly into the kitchen.
While in the kitchen, she heard a man's voice from the living
room say, "come sit by me," and a sound consistent with a hand
patting her sofa.
Alarmed at the presence of an intruder, but not having
telephone service, M.S. nevertheless pretended to call 911. 	The
intruder then departed through the front door. 	While she did not
see the intruder, M.S. testified that his cologne was the same
fragrance that she had smelled on Woodard on a previous occasion.
Because she was afraid, M.S. waited ten to twenty minutes
before checking her front door to make sure it was closed. 	When
she approached the partially open door, Woodard was standing in
the doorway. 	He asked M.S. to go out with him. 	She refused,
stating that she was not interested and that she had a boyfriend.
Woodard told her that "he knew all about her and knew that she
did not have a boyfriend." 	He then squeezed her breasts, grabbed
her between her legs, and departed.
On cross-examination, M.S. admitted that she had alleged in
her criminal complaint that the offense occurred on January 3,
1997, not on January 8. 	She stated that she was nervous and

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confused when she filled out the complaint, and had made a
mistake. 	She acknowledged testifying at a preliminary hearing:
(1) that Woodard was sitting in her apartment when she arrived
home and that she asked him what he was doing there; (2) that she
told Woodard that she was calling 911; and (3) that Woodard had
"touched" her breasts. 	She admitted that she had not, on that
occasion, testified that Woodard had "squeezed" her breasts, but
explained that no one had asked her then whether he had
"squeezed" them.
Steve Rollins, Woodard's work supervisor, testified that he
signed Woodard's time sheet for January 8, 1997. 	The time sheet
indicated that Woodard worked from 7:00 a.m. until 4:00 p.m. on
that day. 	Rollins conceded that he did not recall actually
seeing Woodard that day, and agreed that he could not testify
positively that Woodard had not left work early.
Woodard denied touching M.S. 	He testified that he went to
her apartment later that day and that they conversed casually.
He stated that he did not feel comfortable being in the apartment
with M.S., and told her that he just wanted to be friends. 	He
acknowledged a prior conviction for larceny.
The trial court found that the evidence proved that Woodard
had sexually abused M.S., but that the sexual abuse had not been
accomplished by force or threat. 	However, the trial court
further found that the evidence proved Woodard's presence under
circumstances that intimidated M.S. and that she was thus

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intimidated on the occasion of the sexual abuse. 	On the basis of
that intimidation, the trial court convicted Woodard of sexual
battery in violation of Code § 18.2-67.4(A).
II.
Woodard contends that the evidence was insufficient to
support his conviction because: 	(1) he testified and produced
corroborating evidence that he was at work when the incident
allegedly occurred, and (2) M.S. testified at trial
inconsistently with her criminal complaint and her prior
testimony.
The trial court observed the witnesses and their demeanor as
they testified. 	Despite minor inconsistencies in her statements,
the trial court found M.S. to be credible and Woodard not to be.
See Lea v. Commonwealth, 16 Va. App. 300, 304, 429 S.E.2d 477,
479 (1993) ("[d]etermining the credibility of witnesses who give
conflicting accounts is within the exclusive province" of the
trier of fact); Swanson v. Commonwealth, 8 Va. App. 376, 378-79,
382 S.E.2d 258, 259 (1989) (confirming the duty of the trier of
fact to decide whether inconsistent statements render a witness'
testimony unworthy of belief). 	The trial court was entitled to
disbelieve Woodard's self-serving testimony and to conclude that
he was lying to conceal his guilt. 	Price v. Commonwealth, 18 Va.
App. 760, 768, 446 S.E.2d 642, 647 (1994). 	The Commonwealth's
evidence was competent, was not inherently incredible, and was
sufficient to prove beyond a reasonable doubt that Woodard

sexually abused M.S.
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III.
Woodard contends that the Commonwealth failed to prove that
he sexually abused the complaining witness against her will by
intimidation. 	We agree.
Code § 18.2-67.4(A) provides that:
An accused shall be guilty of sexual battery
if he or she sexually abuses the complaining
witness against the will of the complaining
witness, by force, threat or intimidation, or
through the use of the complaining witness's
mental incapacity or physical helplessness.1
The record supports the finding that Woodard sexually abused
M.S against her will.2 The critical question is whether the
means by which he accomplished the sexual abuse satisfied the
requirements of the statute. 	M.S. suffered from no mental
incapacity or physical helplessness. 	The trial court found that
the sexual abuse was not accomplished by threat or force.3
Therefore, our inquiry is whether Woodard sexually abused M.S. by
intimidation.
1In 1997, the General Assembly amended Code § 18.2-67.4 to
include sexual battery accomplished by "ruse." 	1997 Va. Acts ch.
643.
2"Sexual abuse" is defined, in part, as an act committed
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" is
defined to include the "genitalia," "groin" and "breast." 	Code
§ 18.2-67.10(2).
3The "force" necessary to sustain a charge of sexual battery
is "force" beyond that necessary to accomplish the touching.
Johnson v. Commonwealth, 5 Va. App. 529, 534, 365 S.E.2d 237, 240
(1988).

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The Commonwealth argues that Woodard intimidated M.S. by
"stalking" her. 	Cf. Code § 18.2-60.3 (stalking statute). 	It
notes that he waited for her to return home, that he continued to
"lurk" outside her apartment, that he expressed knowledge of her
activities and relationships, and that she was frightened by his
presence in her apartment.
No doubt, Woodard's conduct intimidated M.S. 	Intimidation
"require[s] that a victim be put 'in fear of bodily harm by [the
assailant] exercising such domination and control of her as to
overcome her mind and overbear her will.'" 	Clark v.
Commonwealth, 12 Va. App. 1163, 1165, 408 S.E.2d 564, 566 (1991)
(citation omitted). 	See also Sutton v. Commonwealth, 228 Va.
654, 663, 324 S.E.2d 665, 670 (1985) (intimidation "may be caused
by the imposition of psychological pressure on one who, under the
circumstances, is vulnerable and susceptible to pressure").
However, Woodard did not accomplish the sexual abuse by that
intimidation.
Nothing in the record proves that Woodard overcame M.S.'s
mind and overbore her will by employing psychological pressure,
threats or fear of bodily harm. 	He simply grabbed her abruptly.
She had time neither to reflect upon his conduct, nor to submit.
While the touching was patently non-consensual and outrageously
offensive, it was accomplished by surprise, not by intimidation.
See Johnson v. Commonwealth, 5 Va. App. 529, 535, 365 S.E.2d
237, 240 (1988).

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Accordingly, we reverse the conviction and remand the case
for a new trial for assault and battery, if the Commonwealth be
so advised. 	Id.
Reversed and remanded.