James David Hazelwood v. Commonwealth of Virginia
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Opinion
COURT OF APPEALS OF VIRGINIA
Record No. 2013-24-1
JAMES DAVID HAZELWOOD v. COMMONWEALTH OF VIRGINIA
Present: Judges AtLee, Chaney and Bernhard Argued at Norfolk, Virginia Opinion Issued June 9, 2026
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON Michael A. Gaten, Judge
Marisa E. Mancini, Assistant Public Defender (Brooke N. Carroll, Assistant Public Defender, on briefs), for appellant.
Kelly L. Sturman, Assistant Attorney General (Jason S. Miyares,1 Attorney General, on brief), for appellee.
PUBLISHED OPINION BY JUDGE DAVID BERNHARD
James David Hazelwood appeals the circuit court’s denial of his motion to strike two
counts of obscene sexual display (Code § 18.2-387.1), and three counts of violation of a protective
order (Code § 18.2-60.4). Hazelwood argues the evidence was insufficient to prove he engaged in
explicitly simulated acts of masturbation, contending that conviction requires conduct that a
reasonable observer would perceive as an unambiguous imitation of the physical act of
masturbation, not merely a clothed grab or hostile gesture involving the genital area. He further
asserts the evidence was insufficient to prove his conduct was obscene and, as to the protective
order convictions, insufficient to prove his conduct amounted to “contact.”
1 Jay C. Jones succeeded Jason S. Miyares as Attorney General on January 17, 2026. This Court reverses and dismisses the obscene sexual display convictions. Under Code
§ 18.2-387.1, to constitute an “explicitly simulated” act of masturbation, the conduct must, as
perceived by a reasonable observer, unambiguously imitate the physical act of masturbation. The
word “simulated” sets the threshold: the conduct must assume the appearance of masturbation
itself, not merely suggest or allude to it. The word “explicitly” demands more: the simulation must
be clear and unambiguous, not merely crude or hostile. These words, read in combination, require
conduct that a reasonable observer could not plausibly mistake for anything other than an imitation
of masturbation.
In determining whether that standard is met when the charged conduct involves clothed
contact with the genital area, this Court considers the following objective indicia:2 (1) a sustained,
repetitive, or stroking motion of the hand over or upon the genital area, as distinguished from a
single grab, shake, or thrust; (2) verbal conduct, sounds, or facial expressions consistent with
sexual arousal or solicitation rather than hostility or contempt; and/or (3) circumstances that
foreclose a reasonably plausible nonprurient explanation, such as an established adversarial
relationship between the defendant and the target. For purposes of this indicium, an adversarial
relationship is “established” only where the record contains objective evidence of documented
prior conflict, such as a prior protective order, prior criminal complaint, prior judicial proceeding,
or a sustained course of hostile conduct reflected in the testimony of percipient witnesses. A
defendant’s post-hoc assertion of antipathy toward the target, uncorroborated by the record, is
insufficient to invoke this indicium. Together, these indicia are evidentiary guideposts, not
2 This Court emphasizes that the three indicia set out above are not intended to suggest that hostile conduct and prurient conduct are mutually exclusive categories. A defendant’s conduct may be hostile in manner and prurient in character simultaneously. The indicia are guideposts for determining whether the physical act, viewed objectively, rises to the level of an unambiguous simulation of masturbation, not whether the conduct was sexual in nature in any broader sense. -2- additional elements of the offense; no single indicium is alone dispositive or exclusive of
consideration of other probative evidence; and the third indicium operates as a contextual lens, not
a categorical defense. For ease of reference, this Court refers to these as the first indicium (the
character of the hand movement over the genital area), the second indicium (accompanying verbal
conduct, sounds, or facial expressions consistent with sexual arousal or solicitation), and the third
indicium (relational context, including any documented adversarial history that bears on whether a
reasonable observer would perceive a prurient rather than non-sexual hostile purpose). The weight
accorded the third indicium is therefore proportional to the degree to which the first two indicia
leave the character of the act in genuine equipoise, and where the first or second indicium is
strongly satisfied, as when the record establishes a sustained, repetitive stroking motion or verbal
conduct plainly consistent with sexual arousal, the existence of a prior adversarial relationship does
not, standing alone, negate the explicitly simulated character of the conduct.
The question here is whether, taken together, the evidence excludes a reasonable hypothesis
of a hostile, nonprurient gesture beyond a reasonable doubt. We hold the evidence was insufficient
to support the two obscene sexual display convictions. No reasonable observer would have
perceived Hazelwood’s conduct, a brief, clothed grab-and-shake directed at a known adversary in a
context of longstanding hostile confrontation, as an unambiguous imitation of masturbation, actual
or feigned; the convictions therefore fail the “explicitly simulated” requirement. The evidence was
also insufficient to establish that the conduct, considered as a whole, had as its dominant theme an
appeal to the prurient interest in sex, as the obscenity element independently requires.
This Court, however, affirms the convictions for violation of a protective order. “Contact”
under the protective order statutes at issue encompasses both direct and indirect contacts
intentionally aimed by the respondent at the petitioner. The evidence raised factual questions for
the jury, the jury resolved those questions, and its determinations were not plainly wrong.
-3- Accordingly, we may not disturb the circuit court’s judgment convicting Hazelwood of the
protective order violations.
BACKGROUND
In August and September of 2019, summonses were issued charging Hazelwood with two
violations of Code § 18.2-387.1 (actual or explicitly simulated acts of masturbation), one violation
of Code § 18.2-603 (stalking), and three violations of Code § 18.2-60.4 (violation of protective
orders). A warrant was issued in April of 2020 for a fourth violation of a protective order.3
Hazelwood was originally tried in the Hampton General District Court. He appealed the
convictions to the Hampton Circuit Court where a trial de novo was held on November 6, 2024.
Hazelwood now appeals his five convictions entered by the circuit court, which were based on
incidents occurring on May 25, 2019, June 10, 2019, July 22, 2019, September 2, 2019, and April
15, 2020.
Collectively, these incidents involved Hazelwood, Jessica Mattson, Charles Double, and
Melody Double. At the time of the incidents, Hazelwood lived on East Cummings Avenue.4 The
Double siblings5 both lived near Hazelwood’s house at the time of the incidents. Both siblings had
had some issues with Hazelwood leading up to the original institution of this case. Melody
testified that she and Hazelwood “have been neighbors since [she] was a child.”
3 Hazelwood was acquitted of one protective order violation charge and of the stalking charge.
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COURT OF APPEALS OF VIRGINIA
Record No. 2013-24-1
JAMES DAVID HAZELWOOD v. COMMONWEALTH OF VIRGINIA
Present: Judges AtLee, Chaney and Bernhard Argued at Norfolk, Virginia Opinion Issued June 9, 2026
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON Michael A. Gaten, Judge
Marisa E. Mancini, Assistant Public Defender (Brooke N. Carroll, Assistant Public Defender, on briefs), for appellant.
Kelly L. Sturman, Assistant Attorney General (Jason S. Miyares,1 Attorney General, on brief), for appellee.
PUBLISHED OPINION BY JUDGE DAVID BERNHARD
James David Hazelwood appeals the circuit court’s denial of his motion to strike two
counts of obscene sexual display (Code § 18.2-387.1), and three counts of violation of a protective
order (Code § 18.2-60.4). Hazelwood argues the evidence was insufficient to prove he engaged in
explicitly simulated acts of masturbation, contending that conviction requires conduct that a
reasonable observer would perceive as an unambiguous imitation of the physical act of
masturbation, not merely a clothed grab or hostile gesture involving the genital area. He further
asserts the evidence was insufficient to prove his conduct was obscene and, as to the protective
order convictions, insufficient to prove his conduct amounted to “contact.”
1 Jay C. Jones succeeded Jason S. Miyares as Attorney General on January 17, 2026. This Court reverses and dismisses the obscene sexual display convictions. Under Code
§ 18.2-387.1, to constitute an “explicitly simulated” act of masturbation, the conduct must, as
perceived by a reasonable observer, unambiguously imitate the physical act of masturbation. The
word “simulated” sets the threshold: the conduct must assume the appearance of masturbation
itself, not merely suggest or allude to it. The word “explicitly” demands more: the simulation must
be clear and unambiguous, not merely crude or hostile. These words, read in combination, require
conduct that a reasonable observer could not plausibly mistake for anything other than an imitation
of masturbation.
In determining whether that standard is met when the charged conduct involves clothed
contact with the genital area, this Court considers the following objective indicia:2 (1) a sustained,
repetitive, or stroking motion of the hand over or upon the genital area, as distinguished from a
single grab, shake, or thrust; (2) verbal conduct, sounds, or facial expressions consistent with
sexual arousal or solicitation rather than hostility or contempt; and/or (3) circumstances that
foreclose a reasonably plausible nonprurient explanation, such as an established adversarial
relationship between the defendant and the target. For purposes of this indicium, an adversarial
relationship is “established” only where the record contains objective evidence of documented
prior conflict, such as a prior protective order, prior criminal complaint, prior judicial proceeding,
or a sustained course of hostile conduct reflected in the testimony of percipient witnesses. A
defendant’s post-hoc assertion of antipathy toward the target, uncorroborated by the record, is
insufficient to invoke this indicium. Together, these indicia are evidentiary guideposts, not
2 This Court emphasizes that the three indicia set out above are not intended to suggest that hostile conduct and prurient conduct are mutually exclusive categories. A defendant’s conduct may be hostile in manner and prurient in character simultaneously. The indicia are guideposts for determining whether the physical act, viewed objectively, rises to the level of an unambiguous simulation of masturbation, not whether the conduct was sexual in nature in any broader sense. -2- additional elements of the offense; no single indicium is alone dispositive or exclusive of
consideration of other probative evidence; and the third indicium operates as a contextual lens, not
a categorical defense. For ease of reference, this Court refers to these as the first indicium (the
character of the hand movement over the genital area), the second indicium (accompanying verbal
conduct, sounds, or facial expressions consistent with sexual arousal or solicitation), and the third
indicium (relational context, including any documented adversarial history that bears on whether a
reasonable observer would perceive a prurient rather than non-sexual hostile purpose). The weight
accorded the third indicium is therefore proportional to the degree to which the first two indicia
leave the character of the act in genuine equipoise, and where the first or second indicium is
strongly satisfied, as when the record establishes a sustained, repetitive stroking motion or verbal
conduct plainly consistent with sexual arousal, the existence of a prior adversarial relationship does
not, standing alone, negate the explicitly simulated character of the conduct.
The question here is whether, taken together, the evidence excludes a reasonable hypothesis
of a hostile, nonprurient gesture beyond a reasonable doubt. We hold the evidence was insufficient
to support the two obscene sexual display convictions. No reasonable observer would have
perceived Hazelwood’s conduct, a brief, clothed grab-and-shake directed at a known adversary in a
context of longstanding hostile confrontation, as an unambiguous imitation of masturbation, actual
or feigned; the convictions therefore fail the “explicitly simulated” requirement. The evidence was
also insufficient to establish that the conduct, considered as a whole, had as its dominant theme an
appeal to the prurient interest in sex, as the obscenity element independently requires.
This Court, however, affirms the convictions for violation of a protective order. “Contact”
under the protective order statutes at issue encompasses both direct and indirect contacts
intentionally aimed by the respondent at the petitioner. The evidence raised factual questions for
the jury, the jury resolved those questions, and its determinations were not plainly wrong.
-3- Accordingly, we may not disturb the circuit court’s judgment convicting Hazelwood of the
protective order violations.
BACKGROUND
In August and September of 2019, summonses were issued charging Hazelwood with two
violations of Code § 18.2-387.1 (actual or explicitly simulated acts of masturbation), one violation
of Code § 18.2-603 (stalking), and three violations of Code § 18.2-60.4 (violation of protective
orders). A warrant was issued in April of 2020 for a fourth violation of a protective order.3
Hazelwood was originally tried in the Hampton General District Court. He appealed the
convictions to the Hampton Circuit Court where a trial de novo was held on November 6, 2024.
Hazelwood now appeals his five convictions entered by the circuit court, which were based on
incidents occurring on May 25, 2019, June 10, 2019, July 22, 2019, September 2, 2019, and April
15, 2020.
Collectively, these incidents involved Hazelwood, Jessica Mattson, Charles Double, and
Melody Double. At the time of the incidents, Hazelwood lived on East Cummings Avenue.4 The
Double siblings5 both lived near Hazelwood’s house at the time of the incidents. Both siblings had
had some issues with Hazelwood leading up to the original institution of this case. Melody
testified that she and Hazelwood “have been neighbors since [she] was a child.”
3 Hazelwood was acquitted of one protective order violation charge and of the stalking charge. 4 Mattson, Charles’s girlfriend, testified that in 2019, Hazelwood lived on East Curry Street in the City of Hampton. It appears that Mattson misspoke because East Curry Street does not exist in Hampton, although North Curry Street does exist in Hampton. Additionally, based on the map admitted into evidence and on the protective orders, it appears that Hazelwood actually lived on East Cummings Avenue. 5 The siblings are referred to by their first names, Charles and Melody, in this opinion. -4- I. Overview of the Incidents
A. May 25, 2019
Melody testified that on May 25, 2019, she was driving on East Cummings Avenue and
“had to stop in front of the house directly next to” Hazelwood’s house “because there’s a stop
sign.” “[A]ll of a sudden, [she] heard somebody yell, [‘]Hey, girl,[’] . . . followed by unintelligible
words.” Melody did not hear what the person was yelling other than “Hey, girl.” When asked who
the person yelling was, Melody responded, “It was James Hazelwood on his porch as I passed by
in front of his house.” “[A]s [she] looked over, he was waving with one hand, like gesturing as he
yelled. And the other, he was touching his penis and shaking it up and down through his clothes.
It was not visible.” She testified that she was about 30 to 40 feet away from Hazelwood. Melody
noticed Hazelwood “[b]ecause of him yelling and gesturing for [her].” After hearing Hazelwood
say “Hey, girl,” Melody looked toward him “and saw what he was doing and [she] just looked
away.”
When asked for more detail as to what Hazelwood was doing, Melody responded, “He was
grabbing his genital area, clearly holding something through his pants, and shaking up and down
aggressively” while “[s]taring at me.” Melody testified that when this was happening, she felt
“[a]larmed,” “[k]ind of scared,” and “[f]reaked out.” On cross examination, Melody testified that
the car windows were down, and she did not have the radio on. She was not able to hear what
Hazelwood said other than “Hey, girl,” and she did not hear him make sexual statements to her.
She stated that this incident occurred around noon. Melody did not recall other neighbors being
out. Hazelwood did not place his hands inside of his pants, and he never physically exposed
himself. She testified that she looked away “probably after about two seconds.”
-5- B. June 10, 2019
Melody testified that on June 10, 2019, she was driving on North Curry Avenue. Her car
windows were down, and the radio was off. As she was driving, she saw Hazelwood run out onto
the sidewalk and grab “his penis or genitals and shak[e] up and down while yelling.” She further
clarified that she saw Hazelwood “grabbing at his penis and shaking, like aggressively.” He made
this gesture over his clothing, and he never put his hand inside his pants. Melody looked away
“pretty quickly.” She did not know what Hazelwood yelled other than “Hey” and “just sped up
and kept going.” Hazelwood “was looking at [her] while he ran onto the sidewalk.” Melody
testified this incident made her feel “alarmed and freaked out.” She testified this incident occurred
during the day and that she could not recall whether any other people were around.
C. July 22, 2019
On July 8, 2019, the Hampton General District Court issued a preliminary protective order
against Hazelwood, stating that Hazelwood “shall not commit acts of violence, force, or threat or
criminal offenses that may result in injury to person or property” and that he “shall have no contact
of any kind with the Petitioner,” Charles Double. The preliminary protective order required
Hazelwood to appear in court for the full protective order hearing. On July 22, 2019, while Charles
was waiting to get into the Hampton General District Court for the hearing on the full protective
order, Hazelwood walked past Charles and said “bitch.” Charles testified that at the time, he “was
with Melody and the rest of [his] family and other witnesses as well.” Charles was about 10 to 12
feet away from Hazelwood. On cross-examination, Charles stated that before Hazelwood said
“bitch,” Charles “observed him talking to himself or muttering to himself.” When asked, “And
then so in passing, you hear the word bitch?,” Charles responded, “No. That wasn’t it. This was
directed directly at me.” Charles stated that Hazelwood was looking at him but affirmed that he
did not refer to Charles by name or make any specific threats towards Charles. The Hampton
-6- General District Court issued a full protective order at the July 22, 2019 hearing, and that order was
in effect until July 21, 2021. The protective order again stated that Hazelwood “shall have no
contact of any kind with” Charles.
D. September 2, 20196
On September 2, 2019, Charles was driving on North Willard Avenue with Mattson in the
passenger seat around 10:45 a.m. Charles, who was on the way to work, had to make a U-turn to
go back to his house. On the way to his house, Charles observed Hazelwood as he “ran out into his
yard, both middle fingers in the air, screaming obscenities in front of his home on Cummings.”
Charles was not able to make out any specific words Hazelwood yelled, and the vehicle was
“[w]ithin a hundred feet” of Hazelwood. Charles testified he did not recall anybody else present on
the street at that time. Mattson testified she saw
Hazelwood running in his yard, like he was running toward us from his yard, and he had both his arms in the air with middle fingers at us. We had the windows down and it sounded like he was shouting at us, but I can’t discern what he said specifically. I just know it was aimed towards us.
She further testified that Hazelwood “had direct eye contact with Charlie and I.”
E. April 15, 2020
While the protective order was still in effect, Charles was in his neighbor’s yard speaking
with the neighbor on April 15, 2020. “Hazelwood was standing between his house and his
neighbor to the left, and he had his hands in his pants, . . . yelling . . . [‘]Hey, fuck boy,[’] with his
hands in his pants, grabbing on himself.” Charles’s attention was drawn to Hazelwood by “[h]im
yelling, [‘]Hey, fuck boy.[’]” Charles testified that Hazelwood was looking “[i]n my direction.”
6 In August of 2019, Mattson also obtained a two-year protective order prohibiting Hazelwood from having any contact with Mattson or engaging in criminal offenses that may injure Mattson. The conviction for violation of a protective order based on the September 2, 2019 incident, however, was only for the protective order taken out by Charles. -7- Charles was “about 120 feet away” from Hazelwood, and he did not hear Hazelwood say anything
else.
II. Motion to Strike and Sentencing
After the Commonwealth rested, Hazelwood moved to strike all of the charges. As to the
simulated masturbation charges, Hazelwood argued that those charges require a showing of
mimicked “stimulation of the genitals with the hand for sexual pleasure.” He asserted there was no
evidence that he was actually sexually aroused or that he engaged in the act for sexual pleasure.
Further, Hazelwood argued grabbing is not enough for masturbation, which “require[s] more of the
stimulation of himself.” Hazelwood also asserted the Commonwealth failed to prove that he
“intentionally [or obscenely] engaged in this act as simulated masturbation.”
As to the protective order violations, Hazelwood argued the Commonwealth failed to prove
that he “intentionally and knowingly attempted to contact or did contact Charles Double.” With
respect to the July 22, 2019 incident, Hazelwood and Charles were at the courthouse where both
were legally obligated to be for the protective order hearing. Hazelwood only said the word
“bitch” in passing and made no indication that the word was directed at Charles. There was no
evidence showing that Hazelwood intended for Charles to hear the comment or that he was aware
that Charles could hear him. With respect to the September 2, 2019 incident, Hazelwood argued
there was no evidence showing that he knew who was in the vehicle or that the gesture was
directed at someone in particular. Finally, regarding the April 15, 2020 incident, the record
contains no evidence Hazelwood’s statement was directed at Charles rather than at the neighbor
with whom Charles was speaking.
The Commonwealth countered that, as to the simulated masturbation charges, there is
evidence that Hazelwood drew Melody’s attention to him by yelling and then proceeded to grab his
crotch to keep her attention. With respect to the July 22, 2019 protective order violation, the
-8- Commonwealth noted that Charles had specifically testified that the “bitch” comment was made
directly to him. As to the September 2, 2019 incident, the Commonwealth noted Mattson’s
testimony that Hazelwood was looking directly at her and Charles when making the gesture.
Finally, with respect to the April 15, 2020 incident, the Commonwealth argued that Charles’s
testimony indicated that Hazelwood was looking at Charles after saying “Hey, fuck boy.”
The circuit court denied the motion to strike. Hazelwood did not present any evidence in
his defense and instead renewed his motion to strike, incorporating the arguments from his first
motion to strike. The circuit court denied the renewed motion to strike, noting that whether
Hazelwood’s behavior underlying the simulated masturbation charges was simply a “rude gesture”
as opposed to simulated masturbation was a question for the jury.
The jury found Hazelwood guilty of two charges of simulating masturbation in public
based on the May 25, 2019 and June 10, 2019 incidents. Additionally, the jury found Hazelwood
guilty of three charges of violation of a protective order taken out by Charles based on the July 22,
2019, September 2, 2019, and April 15, 2020 incidents. On November 6, 2024, the Hampton
Circuit Court sentenced Hazelwood to 12 months of incarceration with 12 months suspended on
each of the simulating masturbation convictions, 12 months with 10 months suspended on the
violation of a protective order charge based on the July 22, 2019 incident, 12 months with 8
months suspended on the violation of a protective order charge based on the September 2, 2019
incident, and 12 months with 6 months suspended on the violation of a protective order charge
based on the April 15, 2020 incident. Hazelwood thus received a total of 12 months of active
incarceration. On each conviction, Hazelwood was also placed under supervision and ordered to
complete a mental health assessment, follow any recommended treatment, and complete an anger
management program. He now appeals the denial of the motion to strike.
-9- ANALYSIS
I. Standard of Review
“A motion to strike challenges whether the evidence is sufficient to submit the case to
the jury.” Lawlor v. Commonwealth, 285 Va. 187, 223 (2013). “Whether the evidence adduced
is sufficient to prove each of [the statutory] elements is a factual finding, which will not be set
aside on appeal unless it is plainly wrong.” Linnon v. Commonwealth, 287 Va. 92, 98 (2014)
(quoting Lawlor, 285 Va. at 223-24). Applying the inquiry, this Court “review[s] the evidence
in the ‘light most favorable’ to the Commonwealth, the prevailing party in the trial court.”
Commonwealth v. Cady, 300 Va. 325, 329 (2021) (quoting Commonwealth v. Hudson, 265 Va.
505, 514 (2003)). This Court “discard[s] the evidence of the accused in conflict with that of the
Commonwealth, and regard[s] as true all the credible evidence favorable to the Commonwealth
and all fair inferences to be drawn therefrom.” Id. (quoting Commonwealth v. Perkins, 295 Va.
323, 323-24 (2018)). “This Court ‘does not ask itself whether it believes that the evidence at the
trial established guilt beyond a reasonable doubt.’” Smith v. Commonwealth, 296 Va. 450, 460
(2018) (quoting Perkins, 295 Va. at 327). Instead, “the relevant question is, upon review of 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
Perkins, 295 Va. at 327).
On appeal, this Court “may neither find facts nor draw inferences that favor the losing
party that the factfinder did not.” Commonwealth v. Garrick, 303 Va. 176, 182 (2024). The
question of “[w]hat the elements of the offense are” is one of statutory interpretation, which this
Court reviews de novo. Linnon, 287 Va. at 98 (quoting Lawlor, 285 Va. at 223). “When
construing a statute, our ‘primary objective,’ as always, is ‘to ascertain and give effect to
legislative intent’ from the words of the statute.” Turner v. Commonwealth, 295 Va. 104, 108
- 10 - (2018) (quoting Lawlor, 285 Va. at 236). This Court “give[s] those words ‘their ordinary
meaning, unless it is apparent that the legislative intent is otherwise.’” Id. (quoting Phelps v.
Commonwealth, 275 Va. 139, 142 (2008)). Moreover, this Court “assume[s] that the legislature
chose, with care, the words it used when it enacted the relevant statute.” Alger v.
Commonwealth, 267 Va. 255, 261 (2004) (quoting Barr v. Town & Country Props., Inc., 240
Va. 292, 295 (1990)).
“[T]he burden is on the Commonwealth to prove every essential element of the offense
beyond a reasonable doubt.” Washington v. Commonwealth, 273 Va. 619, 623 (2007) (quoting
Dowdy v. Commonwealth, 220 Va. 114, 116 (1979)). The factfinder “is entitled to consider all
of the evidence, including circumstantial evidence, . . . in reaching its determination.”
Commonwealth v. Moseley, 293 Va. 455, 463 (2017) (quoting Hudson, 265 Va. at 512-13). Yet,
“[i]n order for inferences to amount to evidence they must be inferences based on facts that are
proved, and not inferences based on other inferences.” Smith v. Commonwealth, 185 Va. 800,
819 (1946). “[I]t is not sufficient that the evidence creates a suspicion or probability of guilt;
but it must go further and exclude every reasonable hypothesis except that of guilt.” Id. at 820
(quoting Sutherland v. Commonwealth, 171 Va. 485, 494 (1938)). “This ‘reasonable hypothesis
of innocence’ principle is ‘simply another way of stating that the Commonwealth has the burden
of proof beyond a reasonable doubt.’” Commonwealth v. Wilkerson, 304 Va. 92, 101-02 (2025)
(quoting Moseley, 293 Va. at 463). That formulation is thus not a burden distinct from proof
beyond a reasonable doubt; it is the practical expression of that burden in cases built on
circumstantial inference, and it compels reversal when the record supplies no evidentiary basis
to reject a reasonable hypothesis of innocence beyond a reasonable doubt; it does not require
acquittal whenever innocence is merely supposable. Cuffee v. Commonwealth, ___ Va. ___,
___ (Apr. 16, 2026). That principle operates symmetrically: it demands affirmance when the
- 11 - jury’s rejection of a hypothesis of innocence rests on an evidentiary basis, see id. at ___; it
demands reversal when the jury’s rejection rests on arbitrary disregard of uncontroverted
evidence. Id. at ___. Where the Court considers the factfinder’s rejection of a hypothesis of
innocence, it does not reweigh the evidence but rather enforces the Commonwealth’s burden of
proof. See Commonwealth v. Richerson, ___ Va. ___, ___ (Apr. 23, 2026). In this way, Cuffee
and Richerson calibrate appellate review to the quality of the evidentiary record.
The de novo review of what the statutory elements require is further guided by
additional principles of construction. “Where possible, a statute should be construed with a
view toward harmonizing it with other statutes.” Newton v. Commonwealth, 21 Va. App. 86, 90
(1995) (quoting Morris v. Morris, 4 Va. App. 539, 543 (1987)). In keeping with that principle,
“[w]hen . . . multiple legislative enactments share ‘a common purpose or [are part of] the same
general plan[,]’ we ‘consider [them] as in pari materia’ and attempt to reconcile them.”
Anderson v. Clarke, 302 Va. 400, 409 (2023) (third, fourth, and fifth alterations in original)
(quoting Morgan v. Commonwealth, 301 Va. 476, 481 (2022)). “[O]ther Code sections using
the same phraseology may be consulted in determining the meaning of a statute.” Newton, 21
Va. App. at 90 (quoting Branch v. Commonwealth, 14 Va. App. 836, 839 (1992)); see also
Barson v. Commonwealth, 284 Va. 67, 74 (2012) (“[W]hen the legislature uses the same term in
separate statutes, that term has the same meaning in each unless the General Assembly indicates
to the contrary.” (quoting Jenkins v. Mehra, 281 Va. 37, 48 (2011))). In addition, penal statutes
“must be strictly construed with regard to any reasonable ambiguity,” but “we will not apply ‘an
unreasonably restrictive interpretation of the statute’ that would subvert the legislative intent
expressed therein.” Turner, 295 Va. at 109 (quoting Alger, 267 Va. at 259); see also Harris v.
Commonwealth, 83 Va. App. 571, 581 (2025).
- 12 - When the Commonwealth’s proof of a statutory element rests on circumstantial
evidence, the standard governing circumstantial evidence becomes an integral part of the
sufficiency analysis. Taylor v. Commonwealth, 61 Va. App. 13, 30 (2012). The appellate
inquiry therefore focuses not on whether a hypothesis of innocence was thinkable but on
whether the factfinder’s rejection of that hypothesis was grounded in the evidence or lacked an
evidentiary basis in the record. Cuffee, ___ Va. at ___. Treating any conceivable possibility of
innocence as dispositive would improperly transform the Commonwealth’s burden into proof
beyond all doubt, which Virginia law does not require. Id. at ___. Circumstantial proof must be
“consistent with guilt and inconsistent with innocence.” Commonwealth v. Smith, 259 Va. 780,
783 (2000) (quoting LaPrade v. Commonwealth, 191 Va. 410, 418 (1950)). The
Commonwealth, however, “need only exclude reasonable hypotheses of innocence that flow
from the evidence, not those that spring from the imagination of the defendant.” Hamilton v.
Commonwealth, 16 Va. App. 751, 755 (1993); accord Cuffee, ___ Va. at ___ (“the principle
applies only to reasonable hypotheses”). Nevertheless, “the reasonable hypothesis formulation
‘does not leave the jury at liberty to guess, and where a fact is equally susceptible of two
interpretations, one of which is consistent with the innocence of the accused, they cannot
arbitrarily adopt that interpretation which incriminates him.’” Cuffee, ___ Va. at ___ (quoting
Burton v. Commonwealth, 108 Va. 892, 899 (1908)). When, however, the jury has a reasonable
evidentiary basis for rejecting the hypothesis of innocence, that principle affords the defendant
no relief. Id. at ___; Smith, 185 Va. at 820; Moody v. Commonwealth, 28 Va. App. 702, 706
(1998).
These principles govern the statutory analysis that follows.
- 13 - II. Explicitly Simulated Acts of Masturbation
Under his first assignment of error, Hazelwood asserts the evidence was insufficient to
support the convictions for obscene sexual display. Looking at common dictionary definitions,
Hazelwood asserts “[m]asturbation is generally defined as the touching or stimulation of one’s own
genitals for the purpose of sexual stimulation or gratification.” As such, to be convicted of an
explicitly simulated act of masturbation, there must be evidence that the defendant simulated both
the physical manipulation of his genitals and the purpose of sexual gratification. Such an act must
be “explicit,” meaning “without any ambiguity or vagueness behind the act or its purpose.”
Because “Hazelwood never made any sexual statements or any sexual noises . . . suggestive of
actual or feigned sexual gratification,” “never exposed his penis, pretended to ejaculate, or
otherwise gave any indication that he was physically aroused,” the evidence was insufficient to
convict him of obscene sexual display for either incident. Hazelwood concedes that genital
exposure is not required, but maintains that any physical manipulation must be accompanied by
apparent sexual purpose, relying on § 18.2-390(3)’s reference to “physical contact in an act of
apparent sexual stimulation or gratification.”
The Commonwealth responds that Code § 18.2-390(3) is instructive in interpreting the
phrase “explicitly simulated acts of masturbation,” as it defines “sexual conduct” as “actual or
explicitly simulated acts of masturbation . . . or physical contact in an act of apparent sexual
stimulation or gratification with a person’s clothed or unclothed genitals . . . .” According to the
Commonwealth, the language in Code §§ 18.2-390(3) and 18.2-387.1 demonstrates that the
conduct prohibited under § 18.2-387.1 is the “intentional and obscene movement of the genitals
while eliciting attention from others rather than unintentional, brief contact that a person might
make to their groin to scratch an itch or fix a zipper.” Exposure of the genitals is not required, nor
is a defendant required to “become gratified by his behavior because [the Code] penalizes the
- 14 - obscene and explicit simulation of masturbation, when done in public for the purpose of being seen
by others.”
Under Code § 18.2-387.1, “[a]ny person who, while in any public place where others are
present, intending that he be seen by others, intentionally and obscenely as defined in § 18.2-372,
engages in actual or explicitly simulated acts of masturbation, is guilty of a Class 1 misdemeanor.”
It appears that most, if not all, cases addressing this statute involve actual masturbation as opposed
to explicitly simulated acts of masturbation, and those cases did not define “masturbation.” See
Harris, 83 Va. App. at 577, 589 (holding that “prosecution under Code § 18.2-387.1 requires proof
of multiple acts [of actual or explicitly simulated masturbation] to support multiple convictions”
and reversing one of two convictions for the same conduct where two women observed defendant
who was naked and who “turned toward them and stroked his penis ‘vigorously’ while making eye
contact with each woman”); Johnson v. Commonwealth, 75 Va. App. 475, 478 (2022) (affirming
conviction under Code § 18.2-387.1 where librarian looked through window of defendant’s cell
and saw him “actively stroking his [exposed] erect penis while looking directly at her”).
Turning to the definition of “explicitly simulated acts of masturbation,” this Court looks to
the plain meaning of the phrase. The word “simulate” means “to give or assume the appearance or
effect of often with the intent to . . . imitate.” Simulate, Merriam-Webster.com,
https://www.merriam-webster.com/dictionary/simulate (last visited May 7, 2026); see also
simulation, Black’s Law Dictionary 1669 (12th ed. 2024) (“An assumption of an appearance that is
feigned, false, or deceptive.”). That definition carries an inherent threshold: the conduct must
assume the appearance of the act itself, not merely suggest or allude to it. “Explicitly” means
“clearly and without any vagueness or ambiguity,” Explicitly, Merriam-Webster.com,
https://www.merriam-webster.com/dictionary/explicitly (last visited May 7, 2026), and is not mere
surplusage, Alger, 267 Va. at 261; its inclusion demands that the simulation be clear and
- 15 - unambiguous. “Masturbation” means “erotic stimulation especially of the genital organs
commonly resulting in orgasm and achieved by manual or other bodily contact.” Masturbation,
Merriam-Webster.com, https://www.merriam-webster.com/dictionary/masturbation (last visited
May 7, 2026). Code § 18.2-387.1 does not require genital exposure for conviction. Read together,
these terms require that a defendant, without ambiguity, imitate the physical act of masturbation
itself—the manual stimulation of the genitals in a manner that a reasonable observer would
perceive as an unambiguous imitation of that act, as distinguished from a crude, hostile, or
indeterminate gesture that happens to involve the genital area.
This Court recognizes that a gesture directed at another person and involving the
defendant’s genitals may be simultaneously hostile in character and sexual in implication, and,
indeed, that the hostility of such a gesture may derive in part from its degrading sexual
connotation. The analytical distinction drawn here is not that hostile conduct cannot also be
sexual, but that the statute requires the conduct unambiguously to simulate the physical act of
masturbation itself, not merely carry a sexual implication or offend on sexual grounds. Where
the sexual dimension of the conduct is inferential rather than explicit, the General Assembly has
addressed that conduct elsewhere. See Code § 18.2-390(3). Clothed, transient contact with the
genital area, without any objective indicia sufficient to exclude a reasonable nonprurient
explanation, is insufficient to satisfy the explicitly simulated acts of masturbation requirement.
The threshold the General Assembly set in Code § 18.2-387.1 is higher, and it is that threshold,
not the offensiveness of the act, that the evidence here fails to satisfy. The statutory
requirement that the defendant intend to be seen “by others” in a public place also informs the
third indicium (relational context). Where the conduct is directed at a specific known person
rather than at the public generally, the pre-existing relationship between the defendant and that
person is directly relevant to how a reasonable observer, situated in that person’s position,
- 16 - would perceive the act. See Code § 18.2-387.1. The third indicium thus draws its legitimacy
not from judicial gloss but from the statute’s own command that the reasonable-observer inquiry
be conducted in the full context of the parties’ circumstances and relationship.
Where the conduct admits of two equally plausible interpretations, one consistent with
an explicit simulation and the other consistent with only a hostile and crude gesture toward a
neighbor, the evidence does not prove the simulation was clear and without vagueness or
ambiguity. See Smith, 259 Va. at 783. The evidence fails this unified standard. Neither
incident presented facts from which a reasonable observer would have perceived Hazelwood as
masturbating, actually or feigned, or from which that observer could plausibly have concluded
the conduct was anything other than a hostile gesture. He was clothed throughout, the contact
lasted approximately two seconds on one occasion and was similarly brief on the other, no
sounds or statements consistent with sexual arousal accompanied either incident, and both
incidents arose within a longstanding adversarial confrontation with a known neighbor.
The hostile-gesture hypothesis at issue here is not a speculative alternative conjured by
the defense. It flows directly from the testimony of the Commonwealth’s own witnesses: a
longstanding adversarial neighborhood relationship, a target toward whom Hazelwood harbored
demonstrated animosity, conduct accompanied by no sexual statement or sound, and gestures
only brief in observation. Where the reasonable hypothesis of innocence arises from the
Commonwealth’s own uncontradicted evidence, not from speculation by the defense, and the
concurrent circumstances point toward the non-prurient explanation rather than away from it,
the record provides no evidentiary basis upon which a jury could reject that hypothesis without
resorting to conjecture unsupported by the record. Cuffee, ___ Va. at ___. A hypothesis of
innocence is reasonable precisely when it “flow[s] from the evidence itself,” Richerson, ___ Va.
at ___ (quoting Turner, 218 Va. at 148), and here it flowed directly from the testimony of the
- 17 - Commonwealth’s own witnesses, uncontradicted at every point. Because the record supplied no
evidentiary basis on which to reject that hypothesis beyond a reasonable doubt, the evidence
was insufficient to sustain the convictions.
The structure of Code § 18.2-390(3) confirms this reading. That section defines “sexual
conduct” in relevant part as “actual or explicitly simulated acts of masturbation . . . or physical
contact in an act of apparent sexual stimulation or gratification with a person’s clothed or
unclothed genitals.” Code § 18.2-390(3) (emphases added). The General Assembly purposely
used “or” to separate these two categories. See Murphy v. Commonwealth, 277 Va. 221, 226
(2009) (“We consider that language in its entirety, rather than by isolating particular words or
phrases.”). Had the legislature intended that any contact with clothed genitals could satisfy the
first category, the second category, “physical contact in an act of apparent sexual stimulation or
gratification,” would be wholly superfluous. This Court will not render any portion of a statute
meaningless by construction. See Alger, 267 Va. at 261. The two clauses therefore reach
categorically different conduct: the first requires an unambiguous physical imitation of
masturbation itself; the second reaches the broader category of contact that merely appears
sexual. The Commonwealth’s theory, that aggressively grabbing and shaking clothed genitals
while yelling at a passerby satisfies the “explicitly simulated masturbation” prong, conflates
these distinct categories and renders the legislature’s deliberate textual distinction without
effect. The second category of Code § 18.2-390(3), “physical contact in an act of apparent
sexual stimulation or gratification with a person’s clothed or unclothed genitals,” is precisely
the provision that would reach conduct like Hazelwood’s: aggressive clothed-genital contact
that appears sexual. That the General Assembly placed such conduct in a lower-threshold
“apparent” category, separate from and subordinate to “explicitly simulated masturbation,”
indicates the legislature understood this type of conduct as insufficient for the first category.
- 18 - Code § 18.2-387.1 incorporated only the first category, the unambiguous physical simulation of
masturbation itself. Accepting the Commonwealth’s theory would eliminate the second
category’s independent work, and this Court will not reduce any part of a statute to surplusage.
See Alger, 267 Va. at 261.
The difference between the two categories in Code § 18.2-390(3) also illuminates the
kind of conduct the General Assembly understood “explicitly simulated masturbation” to reach.
The second category, “physical contact in an act of apparent sexual stimulation or gratification,”
is the broader provision; it would capture a defendant who grabs his clothed genitals and moves
his hand suggestively without fully simulating the act of masturbation. The first category
requires more: the conduct must cross from apparently sexual to an unambiguous physical
simulation of masturbation itself. That distinction confirms the General Assembly
comprehended a spectrum of genital-touching conduct and deliberately placed explicitly
simulated masturbation at the far end—the end occupied by conduct that a reasonable observer
would perceive as an unambiguous physical imitation of the act of masturbation, not merely as
crude or hostile genital contact. A single and brief aggressive grab-and-shake directed at a
known adversary, unaccompanied by any indicator of sexual arousal, falls at the other end of
that spectrum.
Applying the law to each of the two incidents charged, the Commonwealth failed to
carry its evidentiary burden of proof beyond a reasonable doubt. Washington, 273 Va. at 623.
As to the May 25, 2019 incident, the evidence established that Hazelwood yelled “Hey, girl,”
drew Melody’s attention, then grabbed and shook his clothed genitals aggressively for
approximately two seconds while staring at her. A preliminary clarification is warranted before
applying the indicia to the specific facts. That Melody looked away quickly is not, and should
not be read as, any reflection on her credibility or her experience as the target of the conduct.
- 19 - Her reaction, to look away immediately upon encountering behavior she described as alarming
and frightening, was entirely understandable. The relevance of the two-second duration is not
the length of Melody’s observation but what the uncontradicted evidence establishes about the
nature of the act itself: a brief, clothed contact rather than the sustained, repetitive motion the
physical imitation of masturbation would require. The brevity is a characteristic of
Hazelwood’s conduct, not of Melody’s attention. Considering the three objective indicia of the
explicitly simulated element, namely the nature of the hand motion, any accompanying
sexualized words or sounds, and the parties’ relational context, first, as to the character of the
motion, Melody described an aggressive grab-and-shake observed for only two seconds.
Second, as to accompanying communicative conduct, Hazelwood made no sexual statements,
sounds, or facial expressions consistent with sexual arousal or solicitation. The only words
Melody heard were “Hey, girl.” Third, as to relational context, the uncontradicted evidence
established a longstanding adversarial relationship between Hazelwood and Melody, which
supplied an independent, non-prurient explanation for his conduct.
As to the June 10, 2019 incident, the evidence established that Hazelwood ran onto the
sidewalk and grabbed and shook his clothed genitals aggressively while yelling as Melody
drove past. She looked away “pretty quickly.” Hazelwood’s deliberate act of running onto the
sidewalk in Melody’s direction is equally consistent with a campaign of harassment and
intimidation, a pattern well established by the parties’ history, as with sexual solicitation. As
with the May 25 incident, application of the same three indicia yields the same result: the
motion was a brief, clothed grab-and-shake, not a sustained or stroking movement, no sexual
statement or sound accompanied it, and the same adversarial relational context was present.
The June 10 incident presents no fact that would distinguish it from the May 25 analysis in any
- 20 - respect material to the hostile-gesture hypothesis, and the conviction based on that incident
likewise lacks the evidentiary basis required to sustain it.
The Commonwealth argues that Hazelwood’s deliberate attention-seeking, yelling to
draw Melody’s gaze before grabbing his genitals, establishes sexual purpose. The intent to be
seen by others is, however, already an express element of Code § 18.2-387.1 and does not,
standing alone, prove that the act being displayed was an explicit simulation of masturbation
rather than a hostile gesture. See Harris, 83 Va. App. at 588-89. Nor do the confluence of
circumstances, taken together, rescue Hazelwood’s two convictions. As this Court has
recognized, it is true that “the ‘combined force of many concurrent and related circumstances,
each insufficient in itself, may lead a reasonable mind irresistibly to a conclusion.’” Ervin v.
Commonwealth, 57 Va. App. 495, 505 (2011) (quoting Stamper v. Commonwealth, 220 Va.
260, 273 (1979)). But this concept does not aid the Commonwealth here because the concurrent
circumstances, namely clothed contact, a brief aggressive grab-and-shake, the total absence of
sexual statement or sound, and an uncontradicted longstanding adversarial relationship, do not
combine to exclude the hostile-gesture hypothesis. To the contrary, each of those circumstances
is consistent with, and in several respects corroborative of, the non-prurient explanation. When
concurrent circumstances point as readily toward innocence as toward guilt and the record
supplies no evidentiary basis for preferring one interpretation over the other, any verdict of guilt
would rest on a choice unsupported by the evidence rather than on proof beyond a reasonable
doubt. Cuffee, ___ Va. at ___; Smith, 259 Va. at 783-84. That is the circumstance presented
here. The same analytical framework that compelled affirmance in Cuffee, where the
defendant’s established professional familiarity with drug markets supplied a principled
evidentiary basis to reject his claim of ignorance, compels reversal here, where no comparable
evidentiary basis existed to reject the hostile-gesture hypothesis.
- 21 - III. Obscenity
Hazelwood next argues that the evidence was insufficient for both convictions of obscene
sexual display because the conduct described was not obscene as defined by Code § 18.2-372.
There was no evidence Hazelwood “made any sexually charge[d] comments or invitations,”
made “any sexual noises or otherwise engage[d] in or mimic[ked] masturbation or sexual
pleasure.” According to Hazelwood, the evidence suggests his conduct was simply meant as a
rude gesture to Melody, with whom he had issues. As such, the Commonwealth failed to prove
that Hazelwood’s conduct had as “its dominant theme or purpose an appeal to the prurient
interest in sex.” Code § 18.2-372.
The Commonwealth responds that the conduct was obscene, as it “was not customary or
within the boundaries of community standards.” Melody testified that Hazelwood’s conduct made
her feel “alarmed,” “scared,” and “freaked out” and that Hazelwood shouted to draw her attention
to him “after which he proceeded to ‘aggressively’ shake and grab his genitals through his clothing
or grab his genitals and move his hand up and down over his clothing.”
Code § 18.2-387.1 requires that a person’s conduct be obscene. The General Assembly has
defined “obscene” as
that which, considered as a whole, has as its dominant theme or purpose an appeal to the prurient interest in sex, that is, a shameful or morbid interest in nudity, sexual conduct, sexual excitement, excretory functions or products thereof or sadomasochistic abuse, and which goes substantially beyond customary limits of candor in description or representation of such matters and which, taken as a whole, does not have serious literary, artistic, political or scientific value.
Code § 18.2-372. “[W]hether a particular communication ‘appeals to the “prurient interest”’ and ‘is
“patently offensive”’ are ‘essentially questions of fact.’” Moter v. Commonwealth, 61 Va. App.
471, 480 (2013) (quoting Miller v. California, 413 U.S. 15, 30 (1973)). On appeal, “we do not ask
‘whether the materials are obscene, but, rather, whether the materials create a jury issue as to - 22 - obscenity’—that is, whether a ‘reasonable trier of fact’ could come to that conclusion.” Id. (quoting
Allman v. Commonwealth, 43 Va. App. 104, 111-12 (2004)).
It does not appear that any case has addressed the obscenity element of Code § 18.2-387.1;
however, there is case law analyzing the obscenity element for indecent exposure convictions. See
Copeland v. Commonwealth, 31 Va. App. 512, 515 (2000) (holding that defendant’s actions had the
dominant purpose of an appeal to the prurient interest in sex where “[e]vidence [showed] that
Copeland exposed his genitals, that he was visibly aroused, and that he was masturbating”); Hart v.
Commonwealth, 18 Va. App. 77, 80 (1994) (affirming conviction as obscene where defendant,
“[c]lad in a skimpy G-string which covered only his penis and anus, leaving his pubic area and
buttocks exposed,” told Faulk “he liked his velcro shorts because they ‘gave easy access to women
who wanted him’”); Willis v. Commonwealth, No. 0173-04-2, slip op. at 5, 2005 Va. App. LEXIS
58, at *8 (Feb. 8, 2005). Code §§ 18.2-387 and 18.2-387.1 are part of the same article of Title 18.2
and share the purpose of “protect[ing] individuals from witnessing the offensive conduct.” Barnes
v. Commonwealth, 61 Va. App. 495, 500 (2013). As statutes within the same article sharing a
common purpose, they are properly considered in pari materia, and this Court accordingly applies
the obscenity analysis from the indecent exposure cases to Code § 18.2-387.1 convictions.
Anderson, 302 Va. at 409.
An important threshold governs this analysis: the question is not whether a rational
factfinder could infer some sexual aspect from the conduct, but whether “a rational factfinder could
find that appellant’s conduct had, as its ‘dominant theme or purpose an appeal to the prurient
interest in sex.’” A.M. v. Commonwealth, No. 1150-12-4, slip op. at 5, 2013 Va. App. LEXIS 46,
at *7-8 (Feb. 12, 2013) (emphases omitted) (quoting Code § 18.2-372).7 Conduct can be
7 Unpublished decisions of this and other courts are not binding precedent but may be cited as “informative” authority. Rule 5A:1(f). - 23 - “repulsive, disrespectful, and inappropriate in every way” and still not be “obscene” within the
meaning of the statute. Id., slip op. at 5, 2013 Va. App. LEXIS 46, at *7. The General Assembly
enacted a narrow, specific definition in Code § 18.2-372, and this Court will not expand it to reach
all crude or threatening conduct merely because the genitals are involved.
This Court has previously held that
[t]he “obscenity” element of Code § 18.2-387 may be satisfied when: (1) the accused admits to possessing such intent, Moses v. Commonwealth, 45 Va. App. 357, 359-60 . . . (2005) (en banc); (2) the defendant is visibly aroused, Morales v. Commonwealth, 31 Va. App. 541, 543 . . . (2000); (3) the defendant engages in masturbatory behavior, Copeland v. Commonwealth, 31 Va. App. 512, 515 . . . (2000); or (4) in other circumstances when the totality of the circumstances supports an inference that the accused had as his dominant purpose a prurient interest in sex.
A.M., slip op. at 4-8, 2013 Va. App. LEXIS 46, at *6-12 (italics omitted) (reversing indecent
exposure conviction and holding that defendant’s “‘mooning’ Ms. Keffer two minutes after he
told her she had ‘nice lips,’” while “repulsive, disrespectful, and inappropriate,” was not obscene
because the evidence did not demonstrate “that the dominant theme of his conduct was a prurient
interest in sex”); Romick v. Commonwealth, No. 1580-12-4, slip op. at 3-5, 2013 Va. App.
LEXIS 336, at *5-8 (Nov. 19, 2013) (holding that evidence was insufficient to prove defendant’s
actions had dominant purpose of prurient interest in sex where defendant “did not admit to
having an obscene intent, he was not visibly aroused, . . . there was no evidence he was
masturbating,” and he “made no sexual statements . . . and . . . did not try to expose himself to a
particular individual”); Neice v. Commonwealth, No. 1477-09-3, slip op. at 5-7, 2010 Va. App.
LEXIS 231, at *8-12 (June 8, 2010) (holding that appellant’s conduct was not obscene where
“appellant’s actions, albeit bizarre, were always done in a ‘joking’ manner,” and “appellant did
not exhibit the outward signs of sexual interest, such as visible arousal or masturbatory
behavior”).
- 24 - Applying this analysis, the evidence was insufficient to prove that Hazelwood’s actions
were obscene. First, Hazelwood did not admit to a prurient intent. See Moses, 45 Va. App. at
360. Second, Hazelwood was not visibly aroused. Melody testified his penis was never visible
and she observed no physical indicators of arousal. See Morales, 31 Va. App. at 543. Third, as
discussed in the preceding section, the evidence was insufficient to prove Hazelwood engaged in
masturbatory behavior. See Copeland, 31 Va. App. at 515. Fourth, the totality of the
circumstances did not support the inference that Hazelwood’s dominant purpose was a prurient
interest in sex. He made no sexual statements, sexual invitations, or sounds suggestive of
arousal, and the Commonwealth presented no evidence that Hazelwood had ever expressed
sexual interest in Melody or made any sexual overture toward her.
The uncontradicted evidence instead showed a longstanding adversarial relationship
between Hazelwood and both Double siblings predating these incidents. Because the
Commonwealth’s own uncontradicted witnesses established no basis from which a jury could,
without resorting to conjecture, reject the hypothesis that Hazelwood’s dominant purpose was
intimidation and harassment rather than a prurient interest in sex, the evidence was insufficient to
prove the obscenity element beyond a reasonable doubt. Cuffee, ___ Va. at ___; Smith, 185 Va.
at 820; Washington, 273 Va. at 623. Where, as in Cuffee, the record supplies that basis, the
verdict stands. Where, as here, it does not, the verdict cannot stand, because proof beyond a
reasonable doubt requires more than selection between equally supported hypotheses. Indeed,
consistent with this Court’s observations in A.M. regarding similar conduct, Hazelwood’s
behavior was “repulsive, disrespectful, and inappropriate in every way—but not actually
‘obscene’ as the General Assembly has defined the meaning of that term in Code § 18.2-372.”
A.M., slip op. at 5, 2013 Va. App. LEXIS 46, at *7. The evidence in the instant case was
therefore insufficient to prove the obscenity element beyond a reasonable doubt.
- 25 - We note that the simulation element and the obscenity element are independent and that
satisfaction of one does not supply the other. Whether the two elements always travel together in
cases involving actual masturbation with exposed genitals we need not decide today. In cases
involving clothed-genital contact, however, the obscenity element performs its own independent
work, requiring the factfinder to assess whether the dominant purpose of the conduct, viewed in
its full context, was an appeal to the prurient interest in sex. Where, as here, both elements are
independently unproven, each furnishes a separate and sufficient basis for reversal of the two
Code § 18.2-387.1 convictions.
The line the General Assembly drew between Code § 18.2-387 and Code § 18.2-387.1
reflects precisely this distinction. Section 18.2-387 reaches intentional obscene displays, conduct
a reasonable observer would find obscene. Section 18.2-387.1 reaches a narrower and more
specific category: conduct a reasonable observer would perceive as actual or simulated
masturbation. In circumstances where no reasonable observer would perceive the conduct as
masturbation, actual or feigned, the behavior may, if at all, implicate other statutes such as Code
§ 18.2-387 rather than Code § 18.2-387.1; the choice of any such alternative charge lies within
the Commonwealth’s discretion, and we express no view on the applicability of Code § 18.2-387
to the facts of this case.
This Court is acutely aware that the conduct at issue, a man deliberately soliciting a
woman’s attention in order to confront her with an aggressive genital gesture, is harmful,
degrading, and an experience that is unfortunately neither rare nor unfamiliar. Melody testified
that it left her feeling alarmed, scared, and freaked out. That experience is real, and the harm it
causes is not minimized by the statutory analysis this Court is required to conduct. The narrow
question before this Court is not whether Hazelwood’s conduct was offensive, threatening, or
wrong, and it was all of these things, but whether it satisfied the specific and demanding
- 26 - elements of Code § 18.2-387.1 as enacted. Nothing in this opinion diminishes Melody’s
credibility as a witness, the jury’s factfinding on the protective order counts, or the legitimacy of
the legislature’s purpose in enacting this statute. The legislature enacted Code § 18.2-387.1 to
shield persons in public places from being subjected to obscene sexual conduct without their
consent, and that purpose is both legitimate and substantial. But the legislature chose language,
“explicitly simulated acts of masturbation,” combined with a separate obscenity element
requiring a dominant prurient purpose, that limits the statute’s reach to conduct unambiguously
sexual in character, not merely crude, aggressive, or intimidating. Where the evidence leaves
equally open a non-sexual hostile purpose grounded in a documented adversarial relationship,
the statute, as written, does not reach the conduct. That is not this Court’s policy choice. It is the
legislature’s choice, expressed through the specific words it selected, and this Court gives those
words their due effect. If the General Assembly concludes that the statute’s current language is
insufficient to address all forms of offensive genital-touching directed at persons in public, the
remedy lies with the legislature. See Turner, 295 Va. at 109.
Because the evidence was insufficient to establish either the explicitly simulated
masturbation element or the obscenity element, reversal of both Code § 18.2-387.1 convictions is
required on either ground independently. When a conviction is reversed for evidentiary
insufficiency, the Double Jeopardy Clause bars retrial, and the proper remedy is dismissal rather
than remand for a new trial. See Parsons v. Commonwealth, 32 Va. App. 576, 581 (2000).
Accordingly, the two convictions under Code § 18.2-387.1 must be dismissed.
IV. Contact
Finally, Hazelwood argues the evidence was insufficient to support his three convictions
for violation of a protective order, as the conduct did not amount to “contact” with Charles.
Hazelwood contends that “the common theme [of definitions of “contact”] requires a
- 27 - communication of some message from one person or object to another.” With respect to the
July 22, 2019 incident, Hazelwood argues he did not seek out Charles for the purpose of
violating the preliminary protective order; rather, Hazelwood was legally required to be at the
courthouse in the same vicinity as Charles for the hearing on the full protective order.
Hazelwood was nearby Charles but did not address Charles by name nor indicate “that he was
conveying a message specifically to” Charles. Additionally, Charles testified he was standing
near other individuals at the time and that he had seen Hazelwood “talking to himself.”
With respect to the September 2, 2019 incident, Hazelwood argues he was 100 feet away
from Charles, who was not alone in the car. Hazelwood did not signal to the car’s occupants
“or direct his conduct explicitly towards [Charles] by name,” and “there was never any
testimony by [Charles] himself that Mr. Hazelwood was actually looking at [Charles] or in his
direction.” Additionally, “the gesture, without more, does not rise to the level of a
communication. There was no testimony by [Charles] that he perceived a message or meaning
from Mr. Hazelwood by virtue of him raising his middle fingers in the air.” Lastly, during the
April 15, 2020 incident, Hazelwood was standing about 120 feet away from Charles and did not
signal to Charles by name, and Charles was standing right next to another individual.
The Commonwealth responds that Green v. Commonwealth, 72 Va. App. 193 (2020),
and Elliott v. Commonwealth, 277 Va. 457 (2009), are instructive for defining “contact.” The
Commonwealth asserts that a “contact” “is an intentional act on the part of the defendant to
‘pierce the barrier’ of the protective order through direct or indirect communication.” With
respect to the July 22, 2019 incident, the Commonwealth asserts that the evidence showed
Charles saw Hazelwood about 10 to 12 feet away, muttering to himself, and “Hazelwood then
approached Charles and called him a ‘bitch.’” Additionally, the Commonwealth argues the
evidence showed that, with respect to the September 2, 2019 incident, Charles “was confronted
- 28 - by a screaming Hazelwood who ran into the street towards Charles’s vehicle and waved his
middle fingers in Charles’[s] direction.” “Charles testified that he did not see any other cars or
people outside at the time.” Finally, with respect to the April 15, 2020 incident, Hazelwood
yelled, “Hey, fuck boy,” to pull Charles’s attention to him, which “prompted Charles to turn
towards Hazelwood who then grabbed his [own] penis through his pants.”
Under Code § 18.2-60.4, “[a]ny person who violates any provision of a protective order
issued pursuant to § 19.2-152.8, 19.2-152.9, or 19.2-152.10 is guilty of a Class 1 misdemeanor.”
Code § 18.2-60.4(A). Code §§ 19.2-152.9 and 19.2-152.10 permit a court to issue preliminary
and full protective orders prohibiting contact by the respondent with the petitioner. Code
§§ 18.2-60.4, 19.2-152.9, and 19.2-152.10 do not define “contact,” and the protective orders at
issue did not specify any contact that was allowed.
As noted by the Commonwealth, Green and Elliott are instructive for defining
“contact.”8 In Elliott, the Supreme Court of Virginia held that protective orders issued under
Code § 16.1-279.1(A)(2) prohibiting “contact of any type” “would encompass a broad scope of
actions and conduct, both intentional and unintentional.” 277 Va. at 463-64. The Court went
on to hold that “contacts are those acts by the respondent that intentionally pierce the protective
barrier between the petitioner and the respondent fashioned by the protective order.” Id. at 464.
In Elliott, the respondent told the petitioner’s mother that he would “‘beat [them] to their . . .
house.’” Id. at 460 (alterations in original). He then got in his vehicle and parked a block away
8 These two cases discussed the meaning of “contact” for protective orders issued under a different statute than Code §§ 19.2-152.9 and 19.2-152.10. As noted previously, however, “other Code sections using the same phraseology may be consulted in determining the meaning of a statute.” Newton, 21 Va. App. at 90 (quoting Branch, 14 Va. App. at 839). Likewise, caselaw interpreting those other code sections can be consulted. The statute under which the protective orders in Green and Elliott were issued and the protective order statutes at issue here all allow a court to issue a protective order prohibiting contacts by the respondent with the petitioner, and each statute is aimed at “protect[ing] the health and safety of the petitioner.” Code §§ 16.1-253.1, 19.2-152.9, 19.2-152.10. - 29 - from the petitioner’s house. Id. From the petitioner’s house, the petitioner and two other
witnesses observed the respondent standing near his car, “speaking on his mobile telephone and
making various gestures including pointing at the Harvey residence.” Id. 460-61. Ultimately,
the Court reversed Elliott’s conviction and stated,
While he may have intentionally placed himself where he was openly visible to Harvey from her residence, it is undisputed that . . . he was located a block away from Harvey’s residence, on a different street, and posed no threat of harm to the health and safety of Harvey. Accordingly, the evidence does not establish beyond a reasonable doubt that Elliott intentionally violated the condition of the protective order because the evidence is insufficient to establish that Elliott intended to visually communicate with Harvey, who was located at her residence one block away.
Id. at 464. Elliott thus required intent to communicate across the protective barrier. Green
confirmed that indirect communication satisfies that requirement, provided it is deliberately
aimed at the protected party.
In Green, this Court held that “‘[c]ontact’ . . . means ‘an instance of establishing
communication with someone.’” 72 Va. App. at 203 (quoting Contact, Webster’s Third New
International Dictionary (2002)). According to the Green Court, a “contact” can be either a
direct or an indirect contact, as long as the respondent “intentionally directed the
communication to” the petitioner. Id. at 204 (affirming conviction for violation of a protective
order where respondent posted, “Someone tell my BM she was a bird for me” on Twitter,
“reflect[ing] the appellant’s intent to contact the victim through others-anyone who would do
it,” and where, after being notified of the existence of the post, the petitioner herself viewed the
message on Twitter).
Consistent with the holdings in Elliott and Green, this Court holds that those “contacts”
prohibited by protective orders issued pursuant to Code §§ 19.2-152.9 and 19.2-152.10
encompass both direct and indirect contacts that are intentionally aimed at the petitioner, i.e., - 30 - acts that “intentionally pierce the protective barrier between the petitioner and the respondent
fashioned by the protective order.” Elliott, 277 Va. at 464; Green, 72 Va. App. at 204.
“The sole responsibility to determine the credibility of witnesses, the weight to be given
to their testimony, and the inferences to be drawn from proven facts lies with the fact finder.”
Lucas v. Commonwealth, 75 Va. App. 334, 342 (2022) (quoting Ragland v. Commonwealth, 67
Va. App. 519, 529-30 (2017)). Appellate courts owe deference to matters of witness credibility.
Id. at 343. “It is likewise within the province of the trier of fact to draw inferences from the
proven evidence, and its inferences are binding so long as they are reasonable and justified.” Id.
Under this standard, the convictions based on the July 22, 2019, September 2, 2019, and April
15, 2020 incidents must be affirmed.
A. The July 22, 2019 Incident
Charles testified that while “waiting to get into the courthouse” for the hearing on the
full protective order “with Melody and the rest of my family and other witnesses,” “Hazelwood
walked past me and called me a bitch.” The jury in the instant case was entitled to accept
Charles’s testimony that Hazelwood directed the word “bitch” to Charles. That inference was
further supported by the context: both men were present at the courthouse specifically for the
hearing on the full protective order to follow the temporary protective order Hazelwood was
charged with violating, making accidental or unintentional contact with Charles implausible.
When asked how far away Hazelwood was from Charles, Charles stated, “I would say 10 feet,
12 feet.” Counsel then asked, “And you said he was walking past you?” Charles responded, “I
believe so. It was either -- it was in passing, one way or another. We were standing around
waiting to get in the building. Whether I shifted one way or he did, I don’t know.”9 He added
9 Hazelwood and the Commonwealth appear to disagree on Hazelwood’s proximity to Charles when he said the word “bitch.” According to Hazelwood, the testimony was that Hazelwood was 10 to 12 feet away from Charles when he spoke, but the Commonwealth asserts - 31 - that his attention was drawn to Hazelwood “[b]ecause [Hazelwood] made a point to come
up -- it was -- he came into view and called me a bitch.” Before Hazelwood said the word
“bitch,” Charles observed Hazelwood “talking to himself or muttering to himself.” When asked
on cross-examination, “And then so in passing, you hear the word bitch?,” Charles
unequivocally testified, “No. That wasn’t it. This was directed directly at me.” Charles also
affirmed that Hazelwood was looking at him, that Charles was standing with Melody, and that
Hazelwood did not refer to Charles by name or make any other threats toward Charles. Taken
together, Charles’s unequivocal testimony that Hazelwood’s remark was meant for him alone,
the adversarial context of the protective order hearing, and Hazelwood’s deliberate movement
into Charles’s view before speaking left the jury well within its province to conclude that
Hazelwood intentionally directed the word “bitch” at Charles in violation of the protective
order.
B. The September 2, 2019 Incident
Charles testified that he was driving to his house with Mattson in the passenger seat
when Hazelwood “ran out into his yard, both middle fingers in the air, screaming obscenities in
front of his home on Cummings.” Charles was unable to hear what Hazelwood was yelling but
noted that he was within 100 feet of Hazelwood and did not see anyone else on the street at the
time. Mattson testified that she and Charles “saw James Hazelwood running towards us from
his yard, and he had both his arms in the air with middle fingers at us.” Mattson also noted that
they had the car windows down and could not discern specifically what Hazelwood was
screaming but knew “it was aimed towards us.” Additionally, Mattson testified Hazelwood
that Hazelwood was 10 to 12 feet away from Charles when Charles noticed him muttering to himself and then walked past Charles and said “bitch.” It is unclear from the testimony whether Hazelwood was 10 to 12 feet away when Charles first observed him or when Hazelwood walked past Charles and said “bitch.” In either reading, however, Hazelwood’s proximity and deliberate orientation toward Charles are sufficient to support the jury’s finding of intentional contact. - 32 - “had direct eye contact with Charles and I.” On cross examination, Mattson stated that “[t]he
entire interaction was between five and ten seconds in total.” She also reaffirmed twice that
Hazelwood made eye contact with both her and Charles. As the factfinder, the jury was entitled
to accept both Charles’s and Mattson’s testimony and to find that Hazelwood directed his
conduct toward Charles, given the history of disputes between Hazelwood and Charles.
In addition to arguing that the testimony was insufficient to prove that Hazelwood
directed his conduct toward Charles, Hazelwood also argues that the gesture was not a
communication because there was no evidence Charles perceived a message or a meaning by
virtue of Hazelwood raising his middle fingers. The jury was entitled to find, based on common
experience and the contentious history between Hazelwood and Charles, that Hazelwood’s
gesture conveyed an intentional offensive message to Charles and therefore pierced the
protective barrier of the order.
C. The April 15, 2020 Incident
Lastly, Charles testified that on April 15, 2020, he was in his neighbor’s yard speaking
with his neighbor when “Hazelwood was standing between his house and his neighbor to the
left, and he had his hands in his pants, . . . yelling . . . [‘]Hey, fuck boy,[’] with his hands in his
pants, grabbing on himself.” When Hazelwood yelled “Hey, fuck boy,” Charles looked over at
him. When asked where Hazelwood was looking during this incident, Charles responded, “[i]n
my direction.” On cross-examination, Charles testified Hazelwood’s house was “about 120 feet
away” and that Hazelwood was “most certainly” looking in Charles’s direction.
Hazelwood argues it is unclear at whom his conduct was aimed, as he did not signal to
Charles by name or otherwise identify him as the recipient. Whether Hazelwood’s conduct was
focused on Charles, his neighbor, or both was a question of fact for the jury to resolve. The jury
was entitled to find, based on the contentious history between these parties and Hazelwood’s
- 33 - deliberate orientation and vocalization toward Charles, that his conduct was intentionally aimed
at Charles and therefore pierced the protective barrier of the order.
CONCLUSION
For the foregoing reasons, this Court reverses and dismisses the two convictions for
obscene sexual display under Code § 18.2-387.1 arising from the May 25, 2019 and June 10, 2019
incidents, and affirms the three convictions for violation of a protective order under Code
§ 18.2-60.4 arising from the July 22, 2019, September 2, 2019, and April 15, 2020 incidents.10
Affirmed in part, reversed and dismissed in part, and remanded.
10 The trial court’s final orders note that the date of Hazelwood’s trial was November 7, 2024. The transcripts included in the appellate record, however, reflect that Hazelwood’s trial took place on November 6, 2024, which is also the date that the aforementioned final orders were signed. Thus, it appears Hazelwood’s trial occurred on November 6, 2024, not November 7, 2024. We remand the matter for the sole purpose of correcting this apparent clerical error. See Code § 8.01-428(B). - 34 -
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Cite This Page — Counsel Stack
James David Hazelwood v. Commonwealth of Virginia, Counsel Stack Legal Research, https://law.counselstack.com/opinion/james-david-hazelwood-v-commonwealth-of-virginia-vactapp-2026.