COURT OF APPEALS OF VIRGINIA
Present: Judges O’Brien, Ortiz and Friedman UNPUBLISHED
Argued at Fredericksburg, Virginia
DAVID VERNON BARRETT MEMORANDUM OPINION* BY v. Record No. 1061-24-4 JUDGE DANIEL E. ORTIZ SEPTEMBER 23, 2025 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF STAFFORD COUNTY Michael E. Levy, Judge
Eric Weathers, Assistant Public Defender (Virginia Indigent Defense Commission, on briefs), for appellant.
Virginia B. Theisen, Senior Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
Following a jury trial, the trial court convicted David Vernon Barrett for sexual battery and
indecent liberties with a child under the age of 15. The trial court sentenced Barrett to 5 years and
12 months of incarceration, with 3 years and 10 months suspended. On appeal, Barrett contends
that the trial court erred in allowing the Commonwealth to reopen its case to admit additional
evidence, challenges the sufficiency of the evidence to sustain his convictions, and asserts that the
trial court erred in refusing his proposed jury instruction on lascivious intent. Finding no error, we
affirm the trial court’s judgment.
* This opinion is not designated for publication. See Code § 17.1-413(A). BACKGROUND1
In 2018 and 2019, T.K. and K.L lived with their mother, Katherine Kennedy, and Barrett
at a home in Stafford County. At that time, Barrett and Kennedy were in a long-term romantic
relationship.2
On a day when Barrett’s teenage son was visiting, T.K., who was fifteen years old,
Barrett, and his son were swimming in the pool behind the house. Barrett and T.K. played a
game, as they had before, that involved him throwing her in the pool. At some point, Barrett’s
son went inside the house to change the battery in his speaker. While he was gone, Barrett and
T.K. continued with their game in the pool. With Barrett “cradling” T.K. in his arms in the
water, Barrett slid his right hand down her back and touched her buttocks. Barrett then moved
his hand toward her vagina. Barrett touching T.K. in this manner had never been a part of their
pool game, and T.K. was not “okay” with it. Uncomfortable with the way Barrett was touching
her, T.K. tried to push away from him. Barrett released T.K. when his son came back outside.
T.K. then got out of the pool and went to the adjacent deck to dry herself. After Barrett’s son
again went inside the house, Barrett swam to the edge of the pool closest to the deck. He asked
T.K. if she ever masturbated. When she said no, Barrett said she should because it would
“loosen [her] more since [she was] always so tense.” T.K. then went inside the house to her
bedroom. A few minutes after T.K. had changed her clothes, Barrett “put his head through
1 “Consistent with the standard of review when a criminal appellant challenges the sufficiency of the evidence, we recite the evidence below ‘in the “light most favorable” to the Commonwealth, the prevailing party in the trial court.’” Hammer v. Commonwealth, 74 Va. App. 225, 231 (2022) (quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). This standard “requires us to ‘discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom.’” Cady, 300 Va. at 329 (quoting Commonwealth v. Perkins, 295 Va. 323, 324 (2018)). 2 Barrett and Kennedy were in a relationship for eight years. -2- [T.K.’s] bedroom door”; Barrett was wearing only underwear. T.K. communicated with her
mother about what had happened. Afterward, Kennedy, T.K., and K.L. left the house to stay in a
hotel.3
A separate incident between Barrett and K.L. occurred between 2018 and 2019, when she
was in the seventh grade and 12 or 13 years old. Because there was only one bathroom in the
home, they followed a “house rule” of asking if anyone needed to use the bathroom before taking
a shower. During her seventh-grade year, and while home alone with Barrett, K.L. asked him if
he needed to use the bathroom before she showered. Barrett said yes, so K.L. waited in her
bedroom on her bed until he was finished. After visiting the bathroom, Barrett entered K.L.’s
room, lifted her shirt, and rubbed her stomach with a circular motion. K.L. told Barrett to stop
and pulled down her shirt, but he kept doing it anyway. Barrett eventually left the bedroom.
When Barrett returned a few minutes later, he was not wearing a shirt, his pajama pants were
unbuttoned, and “his penis was out.” Barrett stood in the door frame of the bedroom, about ten
feet from K.L. K.L. saw “the whole penis.”
While she was in the shower later, K.L. heard the sound of the doorknob moving, as if
someone were trying to open the locked bathroom door, and she also heard someone pacing
outside the bathroom door. Back in her bedroom after her shower, K.L. heard scratching sounds
outside her door. She thought it might be her dogs, but she was frightened from the earlier
events and checked “under the door.” K.L. saw two men’s shoes and a “black thing” resembling
a curtain rod extended under the bedroom door. Unnerved, K.L. called her mother. K.L. then
left the house and went to a parking lot located across the street to wait for her mother’s return.
3 T.K. testified that Barrett continued to live with her, Kennedy, and K.L. for a few years after the incident in the pool happened. -3- Kennedy confronted Barrett about K.L.’s accusation, but he denied that the incident
happened. Kennedy also asked if something could have happened between him and T.K. Barrett
said that he could not remember.
T.K. spoke to the police about the incident involving Barrett in April 2022, after he and
Kennedy had ended their relationship. Detective Nicholas Ridings attempted to contact Barrett
after Kennedy went to the police. Detective Ridings testified that he was never able to speak to
Barrett about the incidents with T.K. and K.L. He stated that he left Barrett a voicemail and
actually spoke to him on August 1, 2022. At that time, Barrett promised to call the detective
back, but he never did. Detective Ridings left voicemail messages for Barrett asking for a return
call on four days in August 2022, but Barrett did not call him. Finally, Detective Ridings spoke
to Barrett by phone on August 23, 2022, but not about the facts of the case.
A Stafford County grand jury indicted Barrett for taking indecent liberties with K.L. and
sexual battery of T.K.4 On the day of trial but before jury selection, Barrett moved in limine to
exclude Detective Ridings’s testimony about his attempts to contact Barrett years after the
incidents happened and how he had difficulty reaching Barrett, arguing that the testimony would
implicate Barrett’s constitutional right to remain silent. When the trial court asked if there would
be any attempt to criticize the police investigation, Barrett said that it was not a part of the trial
strategy. The trial court then granted Barrett’s motion, “subject to reversal of that decision in the
event that there is criticism of the investigation.”
After Barrett moved to strike at the end of the Commonwealth’s case in chief, but before
the trial court ruled on the motion, the Commonwealth moved to reopen the case to permit
Detective Ridings to testify about his efforts to contact Barrett. Citing Pulley v. Commonwealth,
4 Both victims were juveniles at the time of the charged offenses. Upon the Commonwealth’s motion, the trial court nolle prossed two other charges against Barrett involving K.L. and T.K. -4- 31 Va. App. 600 (2000), the Commonwealth argued that Detective Ridings’s testimony would
not be an improper comment on Barrett’s right to remain silent. Barrett argued that it was
improper to permit the Commonwealth to reopen its case in the midst of the motion to strike. He
further contended that the Commonwealth was seeking to avoid a conclusion by the jury that
Detective Riding had not done a thorough investigation, but that issue was not within the jury’s
purview. Barrett argued that Detective Ridings’s attempts to contact him were irrelevant to his
guilt or innocence of the offenses, and the investigation itself had not been challenged on
cross-examination of Detective Ridings. He maintained that he was not required to speak to the
police and that to imply otherwise would violate his Fifth Amendment right to remain silent.
The trial court granted the motion and ruled that the Commonwealth was permitted to recall the
detective to provide the limited testimony described above about his efforts to contact Barrett,
but not about the content of any interaction with Barrett. The court also denied Barrett’s motion
to strike.
The trial court then addressed jury instructions. The court granted the Commonwealth’s
instruction on the intent required for indecent liberties, which stated, “Lascivious means a state
of mind that is eager for sexual indulgence, desirous of inciting to lust or of inciting sexual desire
and appetite.” This instruction is identical to Virginia Criminal Model Jury Instruction 29.200.
The court also refused Barrett’s proposed jury instruction on lascivious intent, which recited
factors from McKeon v. Commonwealth, 211 Va. 24, 27 (1970).
After less than an hour of deliberation, the jury returned a guilty verdict for Barrett on
both taking indecent liberties with K.L. and sexual battery of T.K. This appeal followed.
ANALYSIS
On appeal, Barrett assigns error to the trial court’s reopening the evidence to allow
additional direct examination of Detective Ridings, the sufficiency of the evidence to sustain
-5- both of his convictions, and the court’s refusal of his proposed jury instruction on lascivious
intent. We address each in turn.
I. Reopening the Evidence
This Court has found that the “reopening of a case” to permit “the admission of
additional evidence after one or both parties have rested” is “within the discretion of the trial
court[.]” Castillo v. Loudoun Cnty. Dep’t of Fam. Servs., 68 Va. App. 547, 568 (2018) (quoting
Fink v. Higgins Gas & Oil Co., 203 Va. 86, 89 (1961)). Such an action “will not be reviewed
unless it affirmatively appears that this discretion has been abused or unless the admission of
such additional evidence works surprise or injustice to the other party.”5 Id. (quoting Fink, 203
Va. at 89).
“The abuse of discretion standard, ‘if nothing else, means that the trial judge’s ruling will
not be reversed simply because an appellate court disagrees. Only when reasonable jurists could
not differ can we say an abuse of discretion has occurred.’” Holloman v. Commonwealth, 65
Va. App. 147, 158 (2015) (quoting Tynes v. Commonwealth, 49 Va. App. 17, 21 (2006)). “This
bell-shaped curve of reasonability governing our appellate review rests on the venerable belief
that the judge closest to the contest is the judge best able to discern where the equities lie.”
Commonwealth v. Barney, 302 Va. 84, 94 (2023) (quoting Sauder v. Ferguson, 289 Va. 449, 459
(2015)).
Barrett’s assignment of error states, “The trial court erred by reopening the case to admit
evidence of the detective’s calls” to him. Barrett maintains that, “[b]ecause of the ambiguity
5 Additionally, our Supreme Court has “recognized [the] authority of a court to reconsider an erroneous or flawed decision.” Commonwealth v. McBride, 302 Va. 443, 449 (2023). “The power to reconsider is often described as an inherent power of a court.” Id. “The power to decide carries with it the power to reconsider as a necessary adjunct.” Id. at 449-50. Thus, there is no question that the trial court had the authority to reconsider its ruling on the motion in limine excluding Detective Ridings’s testimony about his attempts to contact Barrett. -6- inherent” in his silence, “the evidence introduced by the Commonwealth lacked meaningful
probative value.” He further asserts that any probative value of the detective’s testimony was
outweighed by unfair prejudice, relying on cases discussing post-Miranda-warning silence.
As an initial matter, there is no evidence in the record that Barrett was in custody when
Detective Ridings called him or had invoked his right to remain silent at any point during
Ridings’s attempts to contact him. Barrett’s reliance on caselaw discussing the prejudice
inherent in referencing a defendant’s post-Miranda silence is thus misplaced. See Watts v.
Commonwealth, 38 Va. App. 206, 214 (2002) (“‘Miranda warnings[]’ are required only when a
suspect is both in custody and subjected to interrogation . . . .” (quoting Rhode Island v. Innis,
446 U.S. 291, 300 (1980))).
Even if Barrett had somehow invoked this right, due process is not compromised by a
police officer’s “mere mention that defendant had once invoked his right to counsel.” Pulley, 31
Va. App. at 605. In Doyle v. Ohio, 426 U.S. 610, 618 (1976), the Supreme Court of the United
States found that “it would be fundamentally unfair and a deprivation of due process to allow the
arrested person’s silence to be used to impeach an explanation subsequently offered at trial.” But
“Doyle does not impose a prima facie bar against any mention whatsoever of a defendant’s right
to request counsel [or remain silent].” Pulley, 31 Va. App. at 604 (alteration in original) (quoting
Lindgren v. Lane, 925 F.2d 198, 201, 202 (7th Cir. 1991)). It merely “guards against the
exploitation of that constitutional right by the prosecutor.” Id. (quoting Lindgren, 925 F.2d at
202). Here, the Commonwealth did not ask Detective Ridings if Barrett invoked his right to
silence, and the officer did not testify as such. The limited testimony that the trial court
permitted upon reopening the Commonwealth’s case was that the detective had left several
messages asking Barrett to return the call, but he did not. We find that this testimony did not
-7- unfairly prejudice Barrett, and, accordingly, the trial court did not abuse its discretion in
permitting the Commonwealth to reopen its case.
II. Sufficiency
“When an appellate court reviews the sufficiency of the evidence underlying a criminal
conviction, its role is a limited one.” Commonwealth v. Garrick, 303 Va. 176, 182 (2024). “The
judgment of the trial court is presumed correct and will not be disturbed unless it is ‘plainly
wrong or without evidence to support it.’” Pijor v. Commonwealth, 294 Va. 502, 512 (2017)
(quoting Code § 8.01-680). “Thus, ‘it is not for this [C]ourt to say that the evidence does or does
not establish [the defendant’s] guilt beyond a reasonable doubt because as an original proposition
it might have reached a different conclusion.’” Commonwealth v. Barney, 302 Va. 84, 97 (2023)
(alterations in original) (quoting Cobb v. Commonwealth, 152 Va. 941, 953 (1929)). The only
relevant question for this Court on review is, “after reviewing the evidence in the light most
favorable to the prosecution, whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Id. (quoting Sullivan v. Commonwealth, 280
Va. 672, 676 (2010)). “If there is evidentiary support for the conviction, ‘the reviewing court is
not permitted to substitute its own judgment, even if its opinion might differ from the
conclusions reached by the finder of fact at the trial.’” McGowan v. Commonwealth, 72
Va. App. 513, 521 (2020) (quoting Chavez v. Commonwealth, 69 Va. App. 149, 161 (2018)).
In conducting our analysis, we are mindful that determining witness credibility “is within
the exclusive province of the jury, which has the unique opportunity to observe the demeanor of
the witnesses as they testify.” Dalton v. Commonwealth, 64 Va. App. 512, 525 (2015) (quoting
Lea v. Commonwealth, 16 Va. App. 300, 304 (1993)). The jury “[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). “When credibility issues have been resolved by the jury in
-8- favor of the Commonwealth, those findings will not be disturbed on appeal unless plainly
wrong.” Towler v. Commonwealth, 59 Va. App. 284, 291 (2011) (quoting Corvin v.
Commonwealth, 13 Va. App. 296, 299 (1991)).
Indecent Liberties against K.L.
To prove Barrett’s guilt of indecent liberties, the Commonwealth was required to prove
that he “knowingly and intentionally” exposed his penis to K.L. “with lascivious intent.” Code
§ 18.2-370(A)(1). Barrett maintains the evidence was insufficient to prove that he knowingly
exposed his penis to the child with lascivious intent.
On whether the evidence was sufficient to show that Barrett acted knowingly, here,
Barrett returned to K.L.’s bedroom after repeatedly touching her stomach in an unwanted and
suggestive manner. When he returned, Barrett was not wearing a shirt, his pants were undone,
and his penis was completely exposed while he stood at her bedroom door. K.L. saw Barrett’s
“whole penis,” not just a portion of it, indicating that the fly of his pants was likely not opened
inadvertently. Additionally, after this incident, K.L. went to shower and heard someone trying to
turn the doorknob to the bathroom as well as pacing outside the bathroom door. When she
returned to her bedroom, K.L. heard scratching at her door. She thought it might be her dogs,
but after checking “under the door,” she saw a pair of men’s shoes and a “black thing going
under the door [that] . . . looked kind of like a curtain rod.” K.L. and Barrett were the only
people in the home at that time. These facts and circumstances, taken in the light most favorable
to the Commonwealth, amply support the conclusion that Barrett knowingly and intentionally
exposed his penis to K.L. when he stood in her doorway.
Turning to whether the evidence was sufficient to demonstrate lascivious intent, our
Supreme Court has defined “lascivious intent” as describing “a state of mind that is eager for
sexual indulgence, desirous of inciting to lust or of inciting sexual desire and appetite.” Dietz v.
-9- Commonwealth, 294 Va. 123, 136 (2017) (quoting Viney v. Commonwealth, 269 Va. 296, 299
(2005)). “Intent is a factual determination, and a [fact-finder]’s decision on the question of intent
is accorded great deference on appeal and will not be reversed unless clearly erroneous.”
Towler, 59 Va. App. at 297. “It is permissible for the fact finder to infer that every person
intends the natural, probable consequences of his or her actions.” Ellis v. Commonwealth, 281
Va. 499, 507 (2011). “Intent may, and most often must, be proven by circumstantial evidence
and the reasonable inferences to be drawn from [it].” Summerlin v. Commonwealth, 37 Va. App.
288, 297 (2002) (quoting Fleming v. Commonwealth, 13 Va. App. 349, 353 (1991)).
Here, Barrett entered K.L.’s bedroom and touched her on her stomach, and he continued
even after she pulled down her shirt and told him to stop. When he returned and stood in her
bedroom doorway later, he was not wearing a shirt and his penis was exposed. While she was
vulnerable and naked in the shower, K.L. heard the doorknob move, as if Barrett was trying to
enter the locked bathroom. Barrett’s behavior, involving both unwanted touching and plain
exposure of his genitalia, strongly supports the inference that he exposed his penis to K.L. with
“a state of mind that [wa]s eager for sexual indulgence.” Dietz, 294 Va. at 136. Thus, the jury
did not clearly err in determining that Barrett acted with lascivious intent, and we affirm
Barrett’s conviction.
Sexual Battery
Under Code § 18.2-67.4(A)(i), a person is guilty of sexual battery if he sexually abuses
the victim “against the will of the complaining witness, by force, threat, intimidation, or
ruse . . . .” “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” includes the “buttocks.” Code
- 10 - § 18.2-67.10(2). Barrett contends that the evidence was insufficient to prove that the offensive
touching of T.K. was intentional and accomplished by force, threat, intimidation, or ruse.
First, Barrett’s words and actions, taken in the light most favorable to the
Commonwealth, support the conclusion that Barrett touched T.K.’s intimate parts intentionally.
Taking advantage of his son’s absence at the pool area, Barrett slid his hand down T.K.’s back
and touched her buttocks. Then, he moved his hand toward her vagina before T.K. was able to
push away from Barrett after his son returned. Barrett then questioned T.K. about whether she
masturbated, suggesting that his prior touching was not merely accidental but had been an
intentional touching of T.K.’s intimate parts.
Second, the Commonwealth’s theory at trial was that Barrett accomplished this sexual
abuse by “ruse,” rather than by “force, threat, [or] intimidation.” Code § 18.2-67.4(A)(i). The
Code does not define “ruse,” but this Court may consult dictionary definitions to ascertain the
term’s ordinary meaning. See Eley v. Commonwealth, 70 Va. App. 158, 165 (2019); Smith v.
Commonwealth, 72 Va. App. 523, 533-34 (2020). A ruse is defined as “a stratagem or trick
usually intended to deceive” and “a wily subterfuge.” Ruse, Webster’s Third New International
Dictionary (1981); accord Ruse, American Heritage Dictionary of the English Language (5th ed.
2011).
Here, Barrett waited until his son went inside the house to commence touching T.K, and
he did so in the midst of a game that he and T.K. had played before in which he would throw her
into the pool. When Barrett moved his hand toward T.K.’s vagina, T.K. immediately tried to
push away from Barrett, but she only succeeded after Barrett’s son returned outside. Then, after
Barrett’s son again went back inside, Barrett went up to T.K. and asked whether she
masturbated. These circumstances strongly suggest that Barrett behaved opportunistically,
waiting for him and T.K. to be alone before acting, and that he used the guise of a pool game as
- 11 - “a stratagem” to touch T.K. Thus, applying the term’s plain meaning, the evidence supported the
Commonwealth’s theory that Barrett accomplished this sexual abuse by “ruse,” and we
accordingly affirm Barrett’s conviction for sexual battery.
III. Refused Jury Instruction
“A reviewing court’s responsibility in reviewing jury instructions is ‘to see that the law
has been clearly stated and that the instructions cover all issues which the evidence fairly
raises.’” Conley v. Commonwealth, 74 Va. App. 658, 674-75 (2022) (quoting Fahringer v.
Commonwealth, 70 Va. App. 208, 211 (2019)). We review a trial court’s decisions in giving and
denying requested jury instructions for abuse of discretion. Id. at 675. But “whether a jury
instruction accurately states the relevant law is a question of law that we review de novo.”
Watson v. Commonwealth, 298 Va. 197, 207 (2019) (quoting Payne v. Commonwealth, 292 Va.
855, 869 (2016)). Additionally, “[i]f the principles set forth in a proposed instruction are fully
and fairly covered in other instructions that have been granted, a trial court does not abuse its
discretion in refusing to grant a repetitious instruction.” Fahringer, 70 Va. App. at 211 (quoting
Joseph v. Commonwealth, 249 Va. 78, 90 (1995)).
The trial court’s instruction on lascivious intent read, “Lascivious means a state of mind
that is eager for sexual indulgence, desirous of inciting to lust or of inciting sexual desire or
appetite”—a correct statement of Virginia law. Cf. Dietz, 294 Va. at 136. Barrett nonetheless
argues that the trial court erred in denying his proposed jury instruction on lascivious intent,
which expressly stated the factors articulated in McKeon v. Commonwealth, 211 Va. 24 (1970).
Those are: (1) whether the defendant was sexually aroused; (2) whether the defendant made
sexual gestures toward himself or to the child; (3) whether the defendant made improper remarks
to the child; or (4) whether the defendant asked the child to do something wrong. Id. at 27.
- 12 - In Mason v. Commonwealth, 49 Va. App. 39, 50 (2006), the trial court instructed the jury
on lascivious intent precisely as the court did here and refused an instruction detailing the four
McKeon factors. Id. at 48-49. We emphasized that “the [Supreme] Court has not held that proof
of one of the four factors is a prerequisite to a finding of lascivious intent” and found that the
trial court did not err in its instruction to the jury. Id. at 50. We further observed that “Virginia
courts have often cautioned against lifting the ‘language of a specific opinion’ for a jury
instruction given that an appellate opinion ‘is meant to provide a rationale for a decision—and
may not translate immutably into jury instructions.’” Id. at 49 (quoting Seaton v.
Commonwealth, 42 Va. App. 739, 753 (2004)).
Here, just as in Mason, we find that language from McKeon was unnecessary for the
jury’s proper instruction. Given that we have expressly held that the McKeon factors are not a
“prerequisite to a finding of lascivious intent,” Mason, 49 Va. App. at 50, the court “fully and
fairly covered” the relevant law by giving only the one, Fahringer, 70 Va. App. at 21. Thus, the
court did not abuse its discretion by rejecting an instruction “lift[ed from] ‘the language of a
specific opinion,’” Mason, 49 Va. App. at 49, and we affirm its judgment.
CONCLUSION
For the foregoing reasons, we affirm the trial court’s judgment.
Affirmed.
- 13 -