PRESENT: All the Justices
SAMIR ALLEN FARHOUMAND OPINION BY v. Record No. 140012 JUSTICE DONALD W. LEMONS October 31, 2014 COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether the term "expose," as
used in Code § 18.2-370, includes tactile contact or is
limited to situations where "sexual or genital parts" are
"exposed" to sight. We also consider whether the evidence is
sufficient to prove beyond a reasonable doubt that Samir Allen
Farhoumand ("Farhoumand") exposed his genitalia in violation
of Code § 18.2-370(A)(1).
I. Proceedings Below
In January 2012, S.F., a minor child, told his family he
had been sexually abused over the course of several years by
his older cousin, Samir Farhoumand. On May 21, 2012,
Farhoumand was indicted in the Circuit Court of Fairfax County
("trial court") on four counts of "expos[ing] his sexual or
genital parts" to a child under fifteen years of age in
violation of Code § 18.2-370(A)(1). The indictments covered a
period of two years, divided into four consecutive time periods, with a single act of exposure charged in each
indictment. 1
A trial commenced on August 27, 2012, before the
Honorable Randy I. Bellows, Circuit Judge for Fairfax County,
without a jury. At the close of the Commonwealth's evidence,
the defense moved to strike all four indictments. The trial
court dismissed the first indictment, but found there was
sufficient evidence to support the remaining three
indictments, and denied the motion to strike as to those
counts.
After presenting its evidence, the defense moved to
strike the remaining three indictments. The trial court
denied the second motion to strike, and found Farhoumand
guilty of the remaining three counts of "expos[ing] his . . .
sexual or genital parts" to a minor child in violation of Code
§ 18.2-370(A)(1). The trial court relied, in part, upon the
unpublished decision of the Court of Appeals of Virginia in
Mason v. Commonwealth, Record No. 0309-97-2, slip op. at 4
(November 10, 1998)(en banc), which held: "[e]xposure means
not only to 'lay open to view' but also to 'lay open to feel
or to touch.'"
1 Indictment 1 –"on or between" Sept. 3, 2009 and Dec. 31, 2009; Indictment 2 – "on or between" Jan. 1, 2010 and Sept. 3, 2010; Indictment 3 – "on or between" Sept. 4, 2010 and Dec. 31, 2010; Indictment 4 – "on or between" Jan. 1, 2011 and Sept. 3, 2011.
2 On November 15, 2012, Farhoumand argued two motions to
set aside the verdict, claiming that the trial court had
applied an improper definition of the term "expose," and that
the evidence failed to establish with requisite specificity
whether any particular act of exposure occurred within the
time frames of the individual indictments. The trial court
denied both motions. The trial court sentenced Farhoumand to
concurrent terms of 10 years imprisonment with 6 years
suspended on each of the three counts, with active probation
for ten years from the date of the defendant's release from
prison.
Farhoumand appealed his convictions to the Court of
Appeals, which affirmed the trial court's judgment. In an
unpublished opinion, the Court of Appeals held that there is
no compelling reason to conclude that the display of nudity must be limited to a visual display. Indeed, if exposure is defined as "make known" or "lay bare," such a definition encompasses a tactile exposure as well as visual.
. . . .
We find the reasoning in Mason persuasive, in that "expose" means not only to lay bare to view, but to feel or touch. . . . We conclude that because appellant "made known" his bare penis to the victim's touch, he physically and tactilely exposed his penis to the victim.
3 Farhoumand v. Commonwealth, Record No. 2087-12-4, 2013 Va.
App. LEXIS 353, at *6-7 (Dec. 3, 2013).
Farhoumand appealed the judgment of the Court of Appeals
to this Court, and we awarded an appeal on the following
assignments of error:
1. The Court of Appeals erred in holding that "exposure" is proven where genitalia is felt but not seen and in failing to dismiss the indictments where the evidence did not prove that his genitalia was "exposed" to sight.
2. The Court of Appeals erred in holding that the evidence was sufficient to sustain the defendant's convictions whether "exposure" is proven where genitalia is seen or felt.
II. Meaning of "Expose" in Code § 18.2-370
Whether the term "expose," as used in Code § 18.2-370, is
limited to visual exposure, or includes tactile exposure, is a
question of statutory interpretation reviewed de novo. David
v. David, 287 Va. 231, 237, 754 S.E.2d 285, 289 (2014).
Code § 18.2-370(A)(1) provides, in relevant part, that:
Any person 18 years of age or over, who, with lascivious intent, knowingly and intentionally . . . [e]xpose[s] his or her sexual or genital parts to any child [under the age of 15 years] to whom such person is not legally married or propose[s] that any such child expose his or her sexual or genital parts to such person [is guilty of a Class 5 felony.]
A. Plain Meaning
4 We construe statutes to "ascertain and give effect to the
intention" of the General Assembly. Rutter v. Oakwood Living
Ctrs. of Va., Inc., 282 Va. 4, 9, 710 S.E.2d 460, 462 (2011)
(internal quotation marks omitted). Because the General
Assembly's intent "is usually self-evident from the statutory
language," we apply the plain meaning of the words used in the
statute. Id. (citation and internal quotation marks omitted);
see also Boynton v. Kilgore, 271 Va. 220, 227, 623 S.E.2d 922,
925-26 (2006).
Webster's Third New International Dictionary 802 (1993)
defines expose as "to lay open to view" or "lay bare." It
also offers the definitions to "make known" or "set forth,"
with the qualifying example: "[E]ach had started exposing his
views." The Webster's New College Dictionary 252 (3d ed.
2008), defines "expose" as "to lay bare or uncover." Merriam-
Webster's Collegiate Dictionary 441 (11th ed. 2003), defines
"expose" as "caus[ing] to be visible or open to view." In
The American Heritage Dictionary of the English Language 625
(5th ed. 2011), "expose" is defined simply as "to make
visible." Each of these definitions supports our conclusion
that, in the context of Code § 18.2-370, "expose"
unambiguously means revealing one's genitalia to sight.
B. Legislative History
5 The legislative history of Code § 18.2-370 further
supports our conclusion that the General Assembly intended
exposure to be limited to instances of visual display.
Subsection 2 of Code § 18.2-370(A) previously criminalized
fondling. It read:
Any person eighteen years of age or over, who, with lascivious intent, shall knowingly and intentionally . . . . [i]n any manner fondle or feel, or attempt to fondle or feel, the sexual or genital part of any child, or the breast of any such female child . . . . shall be guilty of a Class 6 felony.
Former Code § 18.2-370(A)(Cum. Supp. 1980). However, in 1981,
the General Assembly repealed Subsection 2 and re-codified its
provisions in two closely related statutes: Code §§ 18.2-67.3
and 18.2-67.4. 1981 Acts ch. 397.
Subsection (A)(4)(a) of Code § 18.2-67.3, Virginia's
aggravated sexual battery statute, prohibits "sexually
abus[ing] the complaining witness [if] . . . [t]he act is
accomplished against the will of the complaining witness by
force, threat or intimidation, and [t]he complaining witness
is at least 13 but less than 15 years of age." Code § 18.2-
67.4(A) provides: "An accused is guilty of sexual battery if
he sexually abuses, as defined in § 18.2-67.10, (i) the
complaining witness against the will of the complaining
witness, by force, threat, intimidation, or ruse . . . ." In
6 turn, Code § 18.2-67.10 defines "sexual abuse," in pertinent
part, as:
an act committed with the intent to sexually molest, arouse, or gratify any person, where: a. The accused intentionally touches the complaining witness's intimate parts or material directly covering such intimate parts; [or] b. The accused forces the complaining witness to touch the accused's, the witness's own, or another person's intimate parts or material directly covering such intimate parts.
(Emphasis added.) Additionally, in 2007, the General Assembly
enacted Code § 18.2-67.4:2, which provides that an accused is
guilty of sexual abuse of a child under 15 if he "with
lascivious intent, commits an act of sexual abuse, as defined
in § 18.2-67.10, with any child 13 years of age or older but
under 15 years of age." 2007 Acts ch. 463.
Because the General Assembly specifically removed
Subsection 2 from Code § 18.2-370(A) and re-codified it as
Code §§ 18.2-67.3, 18.2-67.4 and 18.2-67.10, and as recently
as 2007 enacted Code § 18.2-67.4:2, we conclude that the
General Assembly did not intend for Code § 18.2-370(A) to
continue to criminalize fondling, or situations where the
accused forces the complaining witness to touch the accused's
genitalia. The interpretation given by the Court of Appeals
renders at least one of these statutes superfluous and ignores
7 the General Assembly's specific act of segregating the crime
of fondling/molestation from the crime of taking indecent
liberties with minors. Therefore, the Court of Appeals erred
by holding that Code § 18.2-370(A) proscribes the same conduct
as Code §§ 18.2-67.3, 18.2-67.4, 18.2-67.4:2 and 18.2-67.10.
C. Precedent
In Noblett v. Commonwealth, 194 Va. 241, 247, 72 S.E.2d
241, 244 (1952), we held that, under the common law, indecent
exposure required proof that the defendant's private parts
were "likely to have been seen by persons using the street."
Similarly, in Wicks v. City of Charlottesville, 215 Va. 274,
276, 208 S.E.2d 752, 755 (1974), we construed a
Charlottesville City Code provision making it illegal to
indecently "expose" oneself as proscribing "an intentional and
indecent exposure in a public place where it is likely to be
seen, whether actually seen by one or several persons."
However, we have never specifically addressed whether the
meaning of the word "expose," within the context of Code §
18.2-370(A)(1), requires the possibility of a visual sighting.
The Court of Appeals has discussed the meaning of
"expose" in several recent published cases. In Siquina v.
Commonwealth, 28 Va. App. 694, 697-99, 508 S.E.2d 350, 352-53
(1998), the Court of Appeals held that "[Code § 18.2-370]
proscribes the intentional display by an adult, with
8 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." In affirming the defendant's
conviction in that case, the Court of Appeals concluded that
the victim had a reasonable probability of seeing the
defendant's genitalia when the two were in a bathroom together
and the defendant's "pants and underwear were pulled down to
his feet." Id.
In Moses v. Commonwealth, 45 Va. App. 357, 611 S.E.2d 607
(2005), the Court of Appeals, sitting en banc, addressed the
difference between "display" and "expose" as used in Code §
18.2-387. 2 It held that:
Unless the word "display" is superfluous, it must mean something different from "exposure." If "exposure" can only mean some degree of nudity, then "display" necessarily means something different. And so it does. Among the definitions of "display" in ordinary speech (particularly where, as here, it is used as a noun rather than a verb) is the "demonstration or manifestation of something." It is just that definition we
2 Code § 18.2-387, Virginia's indecent exposure statute, provides: "Every person who intentionally makes an obscene display or exposure of his person, or the private parts thereof, in any public place, or in any place where others are present, or procures another to so expose himself, shall be guilty of a Class 1 misdemeanor. No person shall be deemed to be in violation of this section for breastfeeding a child in any public place or any place where others are present."
9 give to the word "display" when used in other provisions of the Code.
Properly understood, every visible exposure of one's genitals necessarily involves a display of one's genitals. But that does not prove the reverse: that every display necessarily includes an exposure. Hence, a robber can still display a handgun in his pocket while not exposing it to sight. So too a man masturbating in public can still display his "person" or "private parts" while not exposing his penis to sight. We thus reject Moses's claim that the display-or- exposure formulation in Code § 18.2-387 codifies a mere semantic redundancy, a pairing of interchangeable synonyms.
Moses, 45 Va. App. at 363-64, 611 S.E.2d at 610 (citation
omitted). In affirming Moses' conviction under Code § 18.2-
387, the Court of Appeals determined that he had "displayed"
his genitalia by "exercising his penis" underneath "his
pants." Id. at 359, 611 S.E.2d at 608.
The Court of Appeals diverged from its reasoning in
Siquina and Moses in several unpublished decisions – including
its opinion in this case. In Mason, Record No. 0309-97-2,
slip op. at 4 (Nov. 10, 1998), the Court of Appeals held that:
"[e]xposure means not only to 'lay open to view' but also to
'lay open to feel or to touch.'" The Court of Appeals cited
no authority for this proposition, noting only that the
"[c]ommon usage of the word 'expose'" encompasses more than
10 visual exposure, such as when "a person is exposed to a toxin
even though the person may have no visual perception of the
substance." Id.
In this case, the Court of Appeals found:
the reasoning in Mason persuasive, in that "expose" means not only to lay bare to view, but to feel or touch. This conclusion is consistent with the dictionary definition of "expose." Further, to limit exposure to visual observation unduly limits the behavior that the statute intends to prevent. Children should not be subjected in any sensory capacity to the sexual or genital parts of an adult who harbors lascivious intent.
Farhoumand, 2013 Va. App. LEXIS 353, at *7. These conclusions
conflict with the published decisions of the Court of Appeals
in Siquina, 28 Va. App. at 697-99, 508 S.E.2d at 352-53, and
Moses, 45 Va. App. at 363-64, 611 S.E.2d at 610, which state,
respectively, that proof of "exposure" requires "a reasonable
probability . . . that [the defendant's genitals] might be
seen by that child" and that "'exposure' can only mean some
degree of nudity."
The panel of the Court of Appeals erred in this case by
applying Mason, an unpublished decision, in place of its
earlier published opinions. We hold that the word "expose,"
as it is used in Code § 18.2-370, requires a visual display
where the genitalia are seen, or where there is a possibility
11 that they could be seen. Accordingly, exposure does not
include situations where the genitalia are felt but are
otherwise covered or obscured from view.
III. Sufficiency of the Evidence
Having found that the Court of Appeals erred in applying
a tactile definition of exposure to the facts of this case, we
must now review the all of the relevant evidence supporting
Farhoumand's conviction under each indictment. Then, applying
the correct definition, we must determine whether the evidence
offered under each indictment was sufficient to prove that
Farhoumand "expose[d]" his "genital or sexual parts" in
violation of Code § 18.2-370(A)(1).
A. Relevant Facts
At trial, S.F. testified that all of the abuse occurred
while Farhoumand was staying with S.F.'s family during
Farhoumand's school breaks. The abuse allegedly began shortly
before Farhoumand graduated from the University of Virginia
and continued while he was attending dental school at the
University of California, Los Angeles. While S.F. testified
that the first incident of sexual abuse occurred during the
winter of 2009, during his seventh grade year, the time
periods covered by the indictments only encompassed S.F.'s
eighth and ninth grade years.
12 S.F. testified that the first incident of abuse
occurred in the middle of the night. S.F. stated that he
"woke up" and saw Farhoumand "fondling [him]." He testified
that the second incident of abuse occurred days later and
involved the "same thing."
Indictment No. 2: Jan. 1, 2010 - Sept. 3, 2010 3
Indictment No. 2 covered the spring of S.F.'s eighth
grade year and the following summer. S.F. testified that in
"the beginning, and throughout eighth grade" there were
incidents where "[Farhoumand] would take [S.F.'s] hand, put it
on [Farhoumand's] penis" and "masturbate himself" with it.
When Farhoumand placed S.F.'s hand on Farhoumand's penis, S.F.
would "sometimes . . . [be] turn[ed] to his side . . . [a]way
from [Farhoumand]." During these acts, S.F. stated that
Farhoumand's underwear "was not fully down, sometimes it
wasn't at all. Very rarely was it fully down." However, S.F.
testified that "occasionally [Farhoumand's penis] was exposed,
but most of the time it was inside [his underwear]." S.F.
described these acts with clarity, but could not remember
precisely when they occurred:
3 Indictment 1, which covered September 3, 2009 through December 31, 2009, the fall and early winter of S.F.’s eighth grade year, was dismissed at trial. The evidence under this indictment was almost entirely duplicative of the evidence offered under Indictment No. 2; therefore, we will move directly to reciting the facts offered at trial that support Indictment No. 2.
13 Q When you say, "over time," do you know how long afterwards that occurred?
A Unh-huh.
Q Do you remember what grade you were in when that occurred?
A No.
Q Did you ever see your cousin's penis?
A Yes, I did.
Q And how often did that happen?
A I'm not certain – rarely.
When asked again to specify when the defendant first began
placing S.F.'s hand on the defendant's penis, S.F. testified:
THE WITNESS: It – I can be for sure that it happened, like, before ninth grade began, was the first incident. So all throughout ninth grade, but the first incident basically must have been, I can pretty much assure the Court, that it was before ninth grade.
THE COURT: You're saying the first incident occurred before ninth grade?
THE WITNESS: Yes.
THE COURT: And then after that – you mean, where he took your hand and put it on his penis?
During the defense's case-in-chief, Farhoumand testified
on his own behalf and was cross-examined by the Commonwealth.
He explained that he that graduated from the University of
Virginia in December of 2009 and lived "the majority of the
14 time" at S.F.'s house from January 1, 2010 to March 30, 2010.
Farhoumand took several trips that spring and summer but the
evidence shows that he was back in Virginia: May 2, 2010 to
May 21, 2010; May 24, 2010 to June 2, 2010; June 8, 2010 to
July 26, 2010; August 2, 2010 to August 22, 2010; and August
25, 2010 to September 4, 2010.
During these periods, Farhoumand admitted to being a
frequent house guest at S.F.'s home, sometimes sleeping in the
same bed with S.F., and that between March 2010 and August
2010 Farhoumand "may have touched [S.F.] [o]n eight
occasions." On cross examination, he acknowledged admitting 4 to "fondling" S.F., "four to eight times." However,
Farhoumand denied ever forcing S.F. to touch his penis, and he
also disavowed ever visually exposing his genitalia to S.F.
Indictment No. 3: Sept. 4, 2010 – Dec. 31, 2010
Indictment No. 3 covers the fall and early winter of
S.F.'s ninth grade year. As described above, S.F. testified
that the incidents when S.F. was made to touch Farhoumand's
penis continued to occur "[d]uring the course of ninth grade."
However, S.F. said that the abuse that happened "during ninth
grade" was "probably the most traumatic." S.F. stated:
4 Two Los Angeles police officers, Kenneth Gutierrez and Tony Im, testified during the Commonwealth’s case-in-chief that Farhoumand had confessed to them that he had touched his cousin’s penis "four times."
15 "[Farhoumand] would essentially turn me over to face him, and
essentially place his penis touching mine, and masturbate it
or put my hand on it and masturbate it." S.F. provided the
following details about these incidents:
Q And how were your cousin's clothes?
A They were pulled down, or again through the fly. I didn't really look, so I wasn't sure.
Q And did you ever see his penis during those –
A Once, because I didn't – I wasn't sure what was happening, but once I figured it out, I wouldn't look.
Q And were you able to feel his penis?
A Yeah. That was strange.
S.F. also testified that he could see Farhoumand's face during
the abuse that involved penis-to-penis contact.
During the time frame covered by Indictment No. 3,
Farhoumand's testimony supports that he was in Virginia
September 4 to September 11 and December 11 to December 31,
2010. While Farhoumand testified that S.F. went out of the
country from December 22 through the remainder of the
indictment period, at least 17 days remain where he was in
Virginia and had access to the victim.
Indictment No. 4: Jan. 1, 2011 - Sept. 3, 2011
Indictment No. 4 covers the late winter and early spring
of S.F.'s ninth grade year and the following summer.
Farhoumand testified that he was only in Virginia from June 12
16 to June 24 and September 1 through September 3, 2011 during
this time period.
As mentioned under Indictment No. 3, S.F. testified that
he saw Farhoumand's penis "once" during the ninth grade. He
also testified, as described above, that he was made to touch
Farhoumand's penis "during the course of ninth grade" and that
Farhoumand had placed his uncovered penis against S.F.'s penis
"in ninth grade."
S.F. claimed that the last incident of abuse occurred on
September 2, 2013, "right before tenth grade began, a day
before [S.F.'s fifteenth] birthday." S.F. testified that on
this occasion he also had a friend sleeping over in his room.
S.F. slept on the floor and S.F.'s friend slept on the bed.
S.F. stated that Farhoumand came next to him on the floor and
"proceeded to fondle" him. S.F. explained that this incident
was "actually less severe than other times."
On cross-examination, when asked whether Farhoumand had
placed S.F.'s hand on Farhoumand's penis during that
encounter, S.F. replied, "to be quite honest, it's difficult
to remember but if I had to say . . . today for the court
officially, I would say yes." There was no evidence offered
as to whether Farhoumand's penis was ever uncovered during
this incident.
B. Analysis
17 We review the sufficiency of the evidence in the light
most favorable to the Commonwealth, and only reverse the
judgment of the circuit court when its decision is plainly
wrong or without evidence to support it. Maldonado-Mejia v.
Commonwealth, 287 Va. 49, 54, 752 S.E.2d 833, 835 (2014).
Farhoumand argues that each of his convictions must be
reversed because "[t]he Commonwealth . . . failed to prove
beyond a reasonable doubt that the defendant's penis was
exposed to sight during any one of the time periods covered by
the three indictments." The Commonwealth responds that an
indictment is not invalid if omits or misstates the time at
which an offense occurs when time is not an element of an
offense. The Commonwealth further argues that there was
sufficient evidence to support the convictions under each
indictment.
Code § 19.2-226 provides that "no indictment or other
accusation shall be quashed or deemed invalid . . . [f]or
omitting to state, or stating imperfectly, the time at which
the offense was committed when time is not the essence of the
offense." In Harris v. Commonwealth, 185 Va. 26, 37 S.E.2d
868 (1946), we reaffirmed the longstanding principle that,
"[i]n a felony case the Commonwealth may prove the commission
of a crime charged on a date different from that alleged in
18 the indictment." Id. at 33, 37 S.E.2d at 871 (citing Puckett
v. Commonwealth, 134 Va. 574, 585, 113 S.E. 853, 856 (1922)).
Several federal circuits agree, holding that "[t]ime is
not a material element of a criminal offense unless made so by
the statute creating the offense." United States v. Stuckey,
220 F.3d 976, 982 (8th Cir. 2000)(citing Ledbetter v. United
States, 170 U.S. 606, 612 (1898)(stating that it is not
"necessary to prove that the offence was committed on the day
alleged, unless a particular day be made material by the
statute creating the offence"). See also Real v. Shannon, 600
F.3d 302, 308 (3rd Cir. 2010); United States v. Creamer, 721
F.2d 342, 343 (11th Cir. 1983)("reject[ing] the contention
that time becomes a material element of a criminal offense
merely because the defense of alibi is advanced."); United
States v. King, 703 F.2d 119, 123-24 (5th Cir. 1983).
While an indictment is not invalid if it omits or
misstates the time at which an offense occurs when time is not
an element of the offense, each indictment must meet due
process requirements:
These criteria are, first, whether the indictment "contains the elements of the offense intended to be charged, 'and sufficiently apprises the defendant of what he must be prepared to meet,'" and, secondly, "'in case any other proceedings are taken against him for a similar offence, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.
19 Russell v. United States, 369 U.S. 749, 763-64
(1962)(collecting cases).
In Clinebell v. Commonwealth, 235 Va. 319, 321, 368
S.E.2d 263, 264 (1988), the defendant was convicted of five
counts of sexual assault against his daughter. On appeal, he
argued that the indictments were fatally defective because
they failed to specify the precise dates of the offenses for
which he was convicted. Id. We concluded that the
indictments were legally sufficient and adopted the holding
and rationale of the Court of Appeals. 5 Id. In that
referenced opinion, the Court of Appeals observed:
In most criminal cases, there is no doubt that a crime occurred; the only issue is who committed the crime. An alibi-based defense is offered in such cases to prove that it was impossible for the defendant to have committed the offense because he was not at the scene of the crime during its commission. The question in most parent-child sexual abuse cases, however, is not who committed the crime, but whether a crime was ever committed.
Clinebell v. Commonwealth, 3 Va. App. 362, 367, 349 S.E.2d
676, 679 (1986).
The evidence shows that Farhoumand was a frequent house
guest in S.F.'s family home during the time periods alleged in
5 In Clinebell, we did not review the rationale supporting our holding, but rather directly adopted the rationale of the Court of Appeals in that case: "We conclude that the indictments are legally sufficient, and on this issue, we affirm the holding and rationale of the Court of Appeals. See Clinebell, 3 Va. App. at 364-67, 349 S.E.2d at 677-79." 235 Va. at 321, 368 S.E.2d at 264.
20 the indictments. By his own admission, Farhoumand was alone
with, and fondled, S.F. on at least four to eight separate
occasions. The question here, like the question presented in
Clinebell, is not who committed the crime, but whether the
crime charged in each of the indictments was committed.
Indictment No. 2: Jan. 1, 2010 - Sept. 3, 2010
S.F. testified that the first time Farhoumand placed
S.F.'s hand on Farhoumand's penis and "masturbated himself"
with it was "before ninth grade began." S.F. stated that when
Farhoumand placed S.F.'s hand on Farhoumand's penis, that the
defendant's underwear "was not fully down, sometimes it wasn't
at all. Very rarely was it fully down." However, S.F.
testified that Farhoumand's penis was "occasionally" exposed.
Farhoumand acknowledged that during the time frame covered by
Indictment No. 2, he lived "the majority of the time" at
S.F.'s house, except for a few trips that he took during the
summer of 2010. He also admitted that he had at least eight
opportunities to molest S.F., and that he fondled S.F. four to
eight times between March and August of 2010. Viewing this
evidence in the light most favorable to the Commonwealth, we
cannot conclude that the trial court's judgment convicting
Farhoumand on this count is plainly wrong or without evidence
to support it; therefore we will affirm the conviction as to
Indictment No. 2.
21 Indictment No. 3: Sept. 4, 2010 – Dec. 31, 2010
S.F.'s testimony that he saw Farhoumand's penis "once"
during ninth grade and that Farhoumand touched his uncovered
penis to S.F.'s penis "during ninth grade," combined with
Farhoumand's access to S.F. for at least 17 days during the
indictment period and evidence of contact with S.F. during
that time, support the trial court's judgment convicting the
defendant. Therefore, under Indictment No. 3, we find that
the evidence was sufficient to prove that Farhoumand visually
exposed his penis in violation of Code § 18.2-370(A)(1).
Indictment No. 4: Jan. 1, 2011 - Sept. 3, 2011 6
S.F. testified that he saw Farhoumand's penis "once"
during the ninth grade. He also testified, as described
above, that he was made to touch Farhoumand's penis "during
the course of ninth grade" and that Farhoumand had placed his
uncovered penis against S.F.'s penis "in ninth grade."
However, this is the same evidence used to support the
6 September 3, 2011, S.F's fifteenth birthday, was included within the time frame alleged in Indictment No. 4. There was conflicting evidence at trial as to whether the final act of abuse occurred on September 2, 2011, which would have made any conduct constituting an act of exposure a felony, or September 3, which would have made the same conduct a misdemeanor. However, we need not address this issue, because we find that the evidence offered with respect to the final incident of abuse was insufficient to support the allegation that the defendant visually exposed his "sexual or genital parts."
22 conviction under Indictment No. 3 and cannot be used to
support a second conviction under Indictment No. 4.
The only other specific evidence of abuse offered under
Indictment No. 4 was the final incident on September 2, 2013.
No evidence was offered as to whether Farhoumand's penis was
ever uncovered during this incident. Therefore, we conclude
that the evidence in the record was insufficient to sustain a
conviction under Indictment No. 4.
IV. Conclusion
Accordingly, we will reverse and vacate Farhoumand's
conviction under Indictment No. 4 (FE-2012-707) because the
evidence was insufficient to prove that a distinguishable act
of visual exposure occurred during the time period stated in
the indictment. 7 To the extent that the trial court relied on
a tactile definition of exposure in convicting Farhoumand
under Indictment No. 2 and Indictment No. 3, we hold that such
reliance was error. Nevertheless, after reviewing the
evidence, we will affirm Farhoumand's convictions under
Indictment No. 2 (FE-2012-705) and Indictment No. 3 (FE-2012-
706) because there was sufficient evidence to prove that the
defendant visually "expose[d]" his penis to S.F., a minor
7 Because Farhoumand received a sentence of 10 years with 6 years suspended on each charge, and those sentences were ordered to be served concurrently, we do not need to remand the case for resentencing.
23 child, in violation of Code § 18.2-370(A)(1), during the time
frames alleged.
We reject the conclusion set forth by the Court of
Appeals that "expose" under Code § 18.2-370(A)(1) includes
tactile exposure. The plain meaning of the statute, the
legislative history, our decisions interpreting "exposure,"
and the published decisions of the Court of Appeals all
support our conclusion that exposure is limited to a visual
display where the child saw, or could have seen, the uncovered
genitalia.
Affirmed in part, reversed in part, and final judgment.
JUSTICE McCLANAHAN, concurring in part and dissenting in part.
The General Assembly placed no limitation on the nature
of the knowing and intentional "expos[ure]" of one's sexual or
genital parts to a child, with lascivious intent, in
criminalizing such act under Code § 18.2-370. Thus, the legal
question before this Court as posed by the majority opinion -
"[w]hether the term 'expose,' as used in Code § 18.2-370, is
limited to visual exposure, or includes tactile exposure" - is
answered in the asking. Because tactile exposure is indeed a
form of exposure, it is proscribed under the statute.
24 "Expose" is defined as to "lay open to view[,] lay
bare[,] make known[,] exhibit." Webster's Third New
International Dictionary 802 (1993). Based on this
definition, I find no compelling reason to conclude that the
proscribed conduct must be limited to a visual exposure.
Indeed, because exposure is defined as "make known" or "lay
bare," such a definition encompasses a tactile exposure as
well as visual.
I concur in the result reached by the majority opinion on
Indictment Numbers 2 and 3 because I conclude there was
sufficient evidence to convict Farhoumand as to these two
indecent liberties charges based on proof of visual, as well
as, tactile exposure. But, I would also affirm Farhoumand's
conviction on Indictment Number 4 as I conclude, like the
Court of Appeals, that there was also sufficient evidence of
tactile exposure on this charge.