Michael Scott Sanderson v Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Fitzpatrick, Judges Elder and Lemons
Argued by teleconference
MICHAEL SCOTT SANDERSON
MEMORANDUM OPINION* BY
v. 	Record No. 1555-98-1 	JUDGE DONALD W. LEMONS
JANUARY 11, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Robert W. Curran, Judge
William P. Robinson, Jr. (Robinson and
Anderson, on brief), for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
On appeal from his conviction for aggravated sexual battery
in violation of Code § 18.2-67.3, Michael Scott Sanderson
contends that the evidence was insufficient to sustain the
conviction. 	We disagree and affirm the judgment of the trial
court.
Where the sufficiency of the evidence is an issue on
appeal, an appellate court must view the evidence and all
reasonable inferences fairly deducible therefrom in the light
most favorable to the Commonwealth. 	See Cheng v. Commonwealth,
240 Va. 26, 42, 393 S.E.2d 599, 608 (1990) (citations omitted).

On May 9, 1997 the eleven-year-old victim (referred to
herein as "EP"), spent the night at the home of her neighbor,
Michael Scott Sanderson. 	At one point in the evening, Sanderson
emerged nude from the bathroom and asked EP to give him a towel.
Later, clad in a nightgown, EP was watching television with
Sanderson, his wife, EP's brother and Sanderson's son when
Sanderson told EP to get into his bed. 	EP awakened later to
find Sanderson and his wife in bed with her. 	At one point
Sanderson and his wife argued over whether they would "make
love." 	According to EP, Sanderson rejected his wife's
suggestion saying, "no, there's too may 'youngens' in the
house." 	Sanderson's wife angrily left the residence but
returned after "four or five minutes."
After her return, Sanderson and his wife removed their
clothing. 	Sanderson moved closer to EP and took her hand and
placed it on his bare left thigh. 	She jerked her hand away.
Then Sanderson slowly pulled up her nightgown and moved it up to
her lower chest. 	EP stated that "every time I was kind of
pulling it down and he kept -- kept pulling it up" and further
testified as follows:
Q. 	And when he got the nightgown to the
highest point on your body, the highest
point up, it was, like, on your upper
stomach, wasn't it?
A. 	It was, like on my lower chest.
Q. 	Lower chest. 	Was it -- it wasn't
actually touching your breasts, was it?
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A. 	No.
Q. 	It was just below your breasts?
A. 	Yes. 	And then he had his hand on, like,
the border of my -- well, part of his hand
was on my chest and -- but the nightgown
wasn't, it was just below it, and part of
his hand was on my stomach.
Thereafter, the trial judge asked EP to demonstrate where
Sanderson's hand had been located on her body. 	The transcript
of the trial reveals that EP illustrated her testimony by
"indicating" where Sanderson's hand had been. 	The trial judge
stated that EP had demonstrated that Sanderson's hand had been
"at a point where her shirt has pockets, and it's -- what would
be the breast pockets is where she's putting her hand."
EP also testified that Sanderson touched her lower stomach,
though not "right on [her] private part." 	She pulled down her
nightgown and moved further from Sanderson, but Sanderson
"scooted" closer to her again. 	EP left the bed and slept on the
couch in the living room for the remainder of the night.
At the conclusion of all the evidence, the trial judge
stated,
It was very important for us to go through
the steps with the witness in terms of
determining exactly where it was that this
lady was touched. 	And that's why the Court
asked her to stand up several times, to try
to put together where it was that the
conduct took place on the lady's body.
A person who sexually abuses a victim less than thirteen
years of age is guilty of aggravated sexual battery. 	See Code
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§ 18.2-67.3(A). 	"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." 	Code § 18.2-67.10(6). 	The term
"intimate parts" means "the genitalia, anus, groin, breast, or
buttocks of any person." 	Code § 18.2-67.10(2).
Sanderson does not challenge his conviction based upon lack
of intent; rather, the only question before us on appeal is
whether he touched an "intimate part or material directly
covering an intimate part." 	When asked to demonstrate where
Sanderson touched her, EP stood up and placed her hand "at a
point where her shirt had breast pockets." 	By doing so, the
evidence proved that Sanderson had placed his hands either on
her breasts or on material directly covering them. 	As we have
previously stated, the meaning of a victim's gestures is a
factual matter which is to be resolved by the factfinder. 	See
Kehinde v. Commonwealth, 1 Va. App. 342, 347, 338 S.E.2d 356,
359 (1986).
For the first time on appeal, Sanderson suggests that "the
record in this case is silent on whether [EP] was sufficiently
developed to have breasts." 	This claim was not raised in the
trial court and is barred from consideration on appeal. 	See
Rule 5A:18; Buck v. Commonwealth, 247 Va. 449, 452-53, 443
S.E.2d 414, 416 (1994).
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Both Sanderson and his wife were nude in bed with EP.
After Sanderson and his wife argued over whether they would
"make love," Sanderson touched EP's breasts or the material
directly covering her breasts as he was trying to pull up her
nightgown. 	He had appeared nude before the child earlier that
evening. 	He had placed her hand on his bare thigh. 	He touched
her lower stomach with his hands. 	He "scooted" after her when
she pulled away from him. 	We cannot say that the trial court
was plainly wrong or without evidence to support Sanderson's
conviction of aggravated sexual battery.
The conviction is affirmed.
Affirmed.
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