Patrick Cullen Adsit v Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Willis and Lemons
Argued at Richmond, Virginia
PATRICK CULLEN ADSIT MEMORANDUM OPINION* BY
v. 	Record No. 0882-98-2 	JUDGE DONALD W. LEMONS
FEBRUARY 9, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Joseph F. Spinella, Judge Designate
N. Russell Scohy (Russell and Associates,
P.C., on brief), for appellant.
Kathleen B. Martin, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Patrick Cullen Adsit was convicted of animate object sexual
penetration, in violation of Code § 18.2-67.2, and sentenced to
fifteen years in prison with seven years suspended. 	On appeal he
contends that the evidence fails to support his conviction. 	We
agree and reverse the judgment of the trial court.
On the evening of January 15, 1996, the victim, a
fourteen-year-old girl, was spending the night at the home of her
friend. 	Patrick Cullen Adsit, appellant, aged twenty-five at
that time, was living in that home. 	Adsit's "bed" was a couch in
the living room where a television was located. 	At 2:00 a.m. the
victim and her friend joined Adsit on his "bed" and watched
horror movies on television. 	Adsit lay on the couch while the
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.

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victim sat in front of him. 	The victim's friend sat at the other
end of the couch.
Adsit began rubbing the victim's left leg and then her
breasts without resistance or complaint from the victim. 	He then
placed his hand inside her underpants and inserted his fingers
into her vagina. 	During this encounter, which lasted between ten
and fifteen minutes, the friend exited the room, went to the
bathroom, and returned to the couch. 	There was another adult in
the house at the time.
The greater portion of the evidence at trial was testimony
from the victim. 	The following statements by the victim are the
only evidence in the record concerning intimidation and force:
"Then he put his hand in my panties and
started to rub my vagina".
"Then he stuck his fingers in my vagina."
"I started to move away from him."
"The way he had his hand underneath my leg, I
couldn't shut my legs."
On cross-examination the following exchange took place:
Q: 	Did he ever use any force or threat or
weapon against you to force you to stay
there?
A. 	No, except that I couldn't move my legs.
After ten to fifteen minutes had elapsed, the incident ended
when Adsit said, "What are we doing?" and she replied, "I have no
idea what you're doing," and she got up off the couch without any
difficulty and without restraint. 	She went into the bathroom and

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then returned to the couch where Adsit was still present and her
friend was sleeping. 	The next day she told her friend and the
friend told the friend's mother. 	The incident was reported to
the police.
Code § 18.2-67.2 provides in part:
Object sexual penetration; penalty. --
A. 	An accused shall be guilty of inanimate
or animate object sexual penetration if he or
she penetrates the labia majora or anus of a
complaining witness who is not his or her
spouse with any object, other than for a bona
fide medical purpose, or causes such
complaining witness to so penetrate his or
her own body with an object or causes a
complaining witness, whether or not his or
her spouse, to engage in such acts with any
other person or to penetrate, or to be
penetrated by, an animal, and
1. 	The complaining witness is less than
thirteen years of age, or
2. 	The act is accomplished against the will
of the complaining witness, by force, threat
or intimidation of or against the complaining
witness or another person, or through the use
of the complaining witness's mental
incapacity or physical helplessness.
There being no evidence of threat, the only issue presented
in this case is whether the act was accomplished against the will
of the victim by force or intimidation.
In Bivins v. Commonwealth, 19 Va. App. 750, 752-53, 454
S.E.2d 741, 742 (1995), we gave a definition to "intimidation,"
noting that
[i]ntimidation results when the words or
conduct of the accused exercise such
domination and control over the victim as to
overcome the victim's mind and overbear the

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victim's will, placing the victim in fear of
bodily harm. 	Intimidation differs from
threat in that it occurs without an express
threat by the accused to do bodily harm.
(Citations omitted).
Previously, in Harris v. Commonwealth, 3 Va. App. 519, 351
S.E.2d 356 (1986), we noted that the "fear of bodily harm,
however, must result from the words or conduct of the accused
rather than the temperamental timidity of the victim." 	Id. at
521, 351 S.E.2d at 357. 	See also Sutton v. Commonwealth, 228 Va.
654, 663-64, 324 S.E.2d 665, 669-70 (1985).
There is no evidence in this record to support the
conclusion that Adsit by words or conduct exercised "such
domination and control" over the victim as to overcome her will
or place her in fear of bodily harm. 	When the victim decided to
get up from the couch nothing prevented her from doing so. 	After
a brief visit to the bathroom, the victim returned to the couch.
Having determined that intimidation was not present in this
incident, the remaining question is whether the act was
accomplished by the use of force. 	Previously, in a case
interpreting the word "force" as it is used in Code § 18.2-67.3
(aggravated sexual battery), we stated in Johnson v.
Commonwealth, 5 Va. App. 529, 534, 365 S.E.2d 237, 240 (1988),
[t]he issue is whether, on the facts of this
case a mere nonconsensual touching of the
intimate parts of the complaining witness
comes within the statutorily defined criminal
act or whether some additional force is
required. . . . [W]e conclude from the
language of the statutes that the legislature
intended some force other than merely that

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force required to accomplish the unlawful
touching to be included within the
statutorily defined criminal acts of either
sexual battery or aggravated sexual battery.
We adopt the same definition of "force" for the purposes of Code
§ 18.2-67.2.
Considering the victim's testimony that "the way he had his
hand underneath my leg, I couldn't shut my legs" and her
acknowledgment that except for her inability to shut her legs, no
"force or threat or weapon" was used to "force [her] to stay
there," we must speculate whether the force utilized was greater
than that required to accomplish the act. 	Because Adsit's
fingers are necessarily connected to his hand, if the victim's
inability to close her legs was the result of the presence of his
hand and nothing more, the additional force necessary to convict
Adsit of the felony of object sexual penetration is not present.
If "the way he had his hand underneath [her] leg" involved more
force than necessary to accomplish the act, the evidence would
support the conviction. 	The dissent suggests that force was
applied "by using his hand to spread the victim's legs." 	If the
record supported such an observation, we would affirm the
conviction. 	Simply stated, the burden of proof is upon the
Commonwealth, and a failure of proof cannot be cured by appellate
speculation.
We are mindful that twenty-five-year-old Adsit's conduct
with a fourteen-year-old-girl was reprehensible. 	We are also
mindful that he was convicted of misdemeanor battery as a result

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of this incident. 	However, the issue before us is whether, on
this record, Adsit is also guilty of the felony of object sexual
penetration. 	Given the record of this case and the law of the
Commonwealth, we must conclude that he is not, and we reverse his
conviction.
Reversed and dismissed.

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Willis, J., dissenting.
By using his hand to spread the victim's legs, Adsit
accomplished the insertion of his finger into her vagina.
However, the force applied by Adsit to spread the victim's legs
went beyond the force specifically required to accomplish the
insertion itself. 	In my view, the evidence of that circumstance
supports a finding that the insertion was accomplished by force.
I would affirm the judgment of the trial court.