John Pleasant Johnson, Jr. v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: March 21, 2023
• Docket: 0639224
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Decker, Judges AtLee and Friedman UNPUBLISHED

Argued at Fredericksburg, Virginia

JOHN PLEASANT JOHNSON, JR. MEMORANDUM OPINION* BY v. Record No. 0639-22-4 JUDGE RICHARD Y. ATLEE, JR. MARCH 21, 2023 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY James A. Willett, Judge

Hasina A. Lewis (Lewis Law, PLLC, on brief), for appellant.

Mike Eaton, Assistant Attorney General (Jason S. Miyares, Attorney General; Jonathan M. Larcomb, Assistant Attorney General, on brief), for appellee.

John Pleasant Johnson, Jr., challenges the sufficiency of the evidence supporting his

convictions following a jury trial for attempted rape, in violation of Code § 18.2-61(A); three

counts of object sexual penetration by force, in violation of Code § 18.2-67.2(A)(2); aggravated

sexual battery, in violation of Code § 18.2-67.3(A)(4); and three counts of forcible sodomy, in

violation of Code § 18.2-67.1.1 Specifically, he argues that the Commonwealth failed to prove

that he accomplished such acts through force, threat, or intimidation. We disagree and

consequently affirm the circuit court’s judgment.

* This opinion is not designated for publication. See Code § 17.1-413. 1 Johnson does not challenge his three convictions for indecent liberties with a child, in violation of Code § 18.2-370, or three counts of aggravated sexual battery of a victim under the age of thirteen, in violation of Code § 18.2-67.3(A)(1). I. BACKGROUND

“In accordance with familiar principles of appellate review, the facts will be stated in the

light most favorable to the Commonwealth, the prevailing party [below].” Poole v. Commonwealth,

73 Va. App. 357, 360 (2021) (quoting Gerald v. Commonwealth, 295 Va. 469, 472 (2018)). This

standard requires us to “discard the evidence of the accused in conflict with that of the

Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and

all fair inferences to be drawn [from that evidence].” Bagley v. Commonwealth, 73 Va. App. 1,

26 (2021) (alteration in original) (quoting Cooper v. Commonwealth, 54 Va. App. 558, 562

(2009)).

The victim in this matter is M.M.,2 the daughter of Johnson’s fiancée. M.M. has a

younger brother and an older brother with autism. M.M. testified that she met Johnson when she

was around five years old. At the time, Johnson was a homicide detective in Washington, D.C.,

and M.M. “thought he was pretty cool and different than . . . what [she] was used to.” M.M.

began spending more time with Johnson when she was in fourth or fifth grade, at which point she

began to see him as a potential “father figure.” M.M. and her family moved to live with Johnson

at the beginning of M.M.’s fifth-grade year, and they lived in Prince William County while M.M.

was in sixth through ninth grade. M.M. and Johnson became “really, really close” while M.M.

was in sixth grade. Johnson was “like [her] dad”; she “could tell him anything. [She] went to

him for anything.” He helped with homework, went to school functions, brought her food, and

took care of her when she was sick. He would talk to her when she did not have friends to

confide in. By contrast, M.M. testified that her mother, who had a history of substance abuse,

2 We refer to the minor complaining witness by her initials to maintain her privacy. -2- was often out of the house during this time “getting high,” and her biological father was “in and

out” of her life. M.M. saw her biological father only once while she was in seventh grade.

M.M. lost weight during the summer between sixth and seventh grade so that she would

be bullied less at school. After that Johnson began to tell her that she was pretty and had “a nice

body.” Johnson’s behavior escalated while M.M. was in seventh grade, when he “started to

become more touchy.” When M.M. was twelve years old, she was watching television with

Johnson, and he touched her vagina over her clothes for the first time. M.M. felt “[n]ot good”

and “disgusted,” “felt like [she] made a mistake,” and “was begging for forgiveness from God.”

Johnson told M.M. that it was “okay” and that she had not done anything wrong. He touched her

vagina at least twice a month while she was in seventh grade, both under and over her clothes.

This touching always occurred when M.M.’s mother was not home and her brothers were not in

the room.

The following summer, after M.M.’s seventh-grade year, Johnson “started asking for

more.” He asked M.M. to “suck[] his penis” while he was rubbing her vagina and kissing her

neck. Johnson “kept . . . talking about it” until M.M. “finally gave in.” She performed oral sex

on Johnson until he ejaculated into his hand. Johnson told M.M. she “was better than [her]

mom.” After this, M.M. went into her room, locked the door, and cried. She “didn’t let anyone

see any emotions” because she “didn’t want them to question what was wrong.” She “felt like

[she] had to” give in to Johnson’s advances because he held “most of the power” in the family.

She could not remember if she told Johnson how she felt at the time.

While M.M. was in eighth grade, Johnson offered to perform oral sex on her. M.M.

responded that she did not think she would like that. Johnson insisted that she would like it and

physically moved M.M. on top of a futon, took her pants off, and placed his mouth and tongue

on her vagina. M.M. “didn’t like it” and “was squirming around” and trying to push his head -3- back. Johnson eventually stopped, and M.M. put her pants back on and “acted like nothing

happened.” She felt like Johnson wanted “control” over her.

Later during her eighth-grade year, Johnson attempted to penetrate M.M.’s vagina with

his penis but could not get an erection. She did not remember how she came to be naked, but she

remembered hanging off the bed with her legs in the air while Johnson attempted to have sex

with her. M.M. testified that Johnson was often unable to achieve an erection when she gave

him oral sex. Johnson admitted at trial that he had erectile dysfunction but testified that he told

M.M. about his condition when she asked him why her mother had sex with other men.

Johnson put his fingers in M.M.’s vagina “[m]ore than once.” The first time he did so,

M.M. was in eighth grade. She said “[i]t hurt” and she “didn’t like it.” She moved around as if

in pain and hoped that it would stop as soon as possible. He stopped when she told him it hurt.

Johnson continued to engage in sexual acts with M.M. when she was in ninth grade but

did so less frequently. M.M.’s relationship with her boyfriend helped her realize that her

relationship with Johnson “wasn’t right.” When M.M. started to refuse Johnson’s advances,

Johnson offered her money in exchange for sex acts. In April 2020, M.M. asked Johnson for

money to buy her friend and boyfriend birthday presents. Johnson proposed giving M.M. $80 on

the condition that she give him oral sex four times and let him rub her vagina for ten minutes.

He suggested that they repeat the deal every month. She initially declined but later agreed to the

deal because she feared her boyfriend would break up with her if she did not get him a nice

birthday present. M.M. set a timer for ten minutes while Johnson rubbed her vagina. She was

“just waiting to hear that noise, for the timer to go off.” She then gave him oral sex. Around

three days later, he electronically sent her $80.

M.M. did not tell anybody about Johnson’s actions because she feared nobody would

believe her and felt that she “didn’t have anyone that [she] could talk to.” Johnson paid for her -4- family’s home, clothes, and cars, so she was scared of “losing everything, [and her] family losing

everything.” M.M.’s mother confirmed they struggled financially and relied on Johnson to

support the family. Moreover, M.M. was happy when she spent time with Johnson without

sexual acts, “[s]eeing that there was . . . a good side to him” and that he “wasn’t just all bad.”

She saw Johnson as her father figure; she longed for someone to spend time with because her

brothers did not really talk to her and her mother was not home. Johnson gave her many gifts

and at one time gave her a vibrator.

M.M. frequently acted out during eighth and ninth grade, including getting in trouble at

school, skipping school, and fighting with her mother. She said she had “so much anger built up

for so long” she “wound up building a shell from being molested” by Johnson. She “just stopped

caring about people, and . . . stopped caring about [her]self.” During ninth grade, M.M. had two

or three physical altercations with her mother. During one such altercation, M.M.’s hand was

scratched, resulting in her teacher notifying Child Protective Services. In April 2020, M.M.

observed Johnson strike her brother because her brother did not want to get out of the swimming

pool. M.M. wrote a note that year stating that she was having suicidal thoughts because of

Johnson’s abuse and that she no longer had the father-daughter relationship with Johnson that

she once had. She wrote a second note approximately one month later that also expressed

suicidal thoughts.

In May 2020, while M.M. was staying with her aunt, Tameka Mack, Mack discovered

that M.M. was messaging Johnson late at night and became concerned about their relationship.

Mack told M.M. that there were certain boundaries that stepfathers should not cross and that

M.M. could tell Mack if anything was wrong. M.M. told Mack about the abuse later that night.

Mack told M.M.’s mother and father and went to the police station to file a report.

-5- The police arrested Johnson and collected his cell phone. Johnson had deleted all the

messages from his cell phone. M.M. testified that Johnson told her to delete any messages

between them and that he generally preferred to talk on the phone so that their conversations

would not be recorded. M.M.’s phone showed consistent messages to and from Johnson up until

the date M.M. told Mack about Johnson’s abuse.

After Johnson’s arrest, the family moved into a small apartment where M.M. and her

mother shared a bedroom. The family no longer had a car; Johnson had paid for their housing

and cars when he lived with them.

Later in May 2020, M.M. attempted suicide by taking some of Johnson’s pills and was

admitted to the hospital. She testified that she had received a text message that Johnson was

being released and she was “scared.”

At the close of the Commonwealth’s case, Johnson moved to strike the evidence. He

argued as relevant here, that the Commonwealth did not prove that he employed force, threat, or

intimidation, as required to prove attempted rape, object sexual penetration, forcible sodomy, and

aggravated sexual battery against M.M. The Commonwealth acknowledged that its evidence did

not establish that Johnson had used force or threats, but contended that the evidence established

the use of intimidation. The circuit court denied the motion to strike.

Johnson testified and denied attempting to insert his penis into M.M.’s vagina, touching

or fondling her, allowing M.M. to touch or fondle him, or sexually assaulting her in any way. He

testified that he sent M.M. money on the condition that she behave better toward her mother.

At the close of the evidence, Johnson renewed his motion to strike, which the circuit

court denied. The jury found Johnson guilty of all counts. The jury recommended a total

sentence of three-hundred sixty years’ imprisonment, which the circuit court imposed, with thirty

years suspended. Johnson now appeals. -6- II. ANALYSIS

A. Standard of Review

Each of Johnson’s four assignments of error challenges the sufficiency of the evidence.

“On review of the sufficiency of the evidence, ‘the judgment of the trial court is presumed

correct and will not be disturbed unless it is plainly wrong or without evidence to support it.’”

Ingram v. Commonwealth, 74 Va. App. 59, 76 (2021) (quoting Smith v. Commonwealth, 296 Va.

450, 460 (2018)). Our inquiry is “whether ‘any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.’” Id. (quoting Yoder v.

Commonwealth, 298 Va. 180, 182 (2019)).

B. Evidence of Intimidation

Each of the convictions Johnson challenges on appeal requires the Commonwealth to

prove that Johnson committed acts “by force, threat or intimidation.” Code §§ 18.2-61(A)

(rape), -67.1(A)(2) (forcible sodomy), -67.2(A)(2) (object sexual penetration), -67.3(A)(4)

(aggravated sexual battery). Johnson does not challenge on appeal the credibility of M.M.’s

testimony but argues that her testimony was insufficient to establish that Johnson used force,

threat, or intimidation in commission of these acts. The Commonwealth concedes that Johnson

did not use force or threat but argues that he used intimidation.

“Intimidation . . . means putting a victim in fear of bodily harm by exercising such

domination and control of her as to overcome her mind and overbear her will.” Bondi v.

Commonwealth, 70 Va. App. 79, 90 (2019) (alteration in original) (quoting Sutton v.

Commonwealth, 228 Va. 654, 663 (1985)). “Intimidation may be caused by the imposition of

psychological pressure on one who, under the circumstances, is vulnerable and susceptible to

such pressure.” Id. (quoting Sutton, 228 Va. at 663). Relevant factors include the “victim’s age,

the relative size of the defendant and victim, the familial relationship between the defendant and -7- victim, and the vulnerable position of the victim.” Id. (quoting Commonwealth v. Bower, 264

Va. 41, 46 (2002)). “[P]roof that the victim feared some type of bodily harm other than the harm

inherent in the sexual assault” is not required. Bower, 264 Va. at 46.

Appellate courts in Virginia have consistently found sufficient evidence of intimidation

where the defendant stood in the role of father figure over the victim. As the Supreme Court has

explained, “where the intercourse was induced through fear of a person whom the victim was

accustomed to obey, such as a person standing in loco parentis,” the element of intimidation is

likely present. Sutton, 228 Va. at 663. In Bower v. Commonwealth, the defendant sexually

violated his thirteen-year-old daughter while she pretended to be asleep. 264 Va. at 43. The

victim testified that “she had had a good relationship with her father prior to the assault.” Id.

The Supreme Court held that the good relationship between the defendant and victim “could lead

the child to submit to the overtures of the parent because a ‘good relationship’ between parent

and child can include the child’s general obedience to the parent’s direction.” Id. at 45.

Similarly, in Benyo v. Commonwealth, 38 Va. App. 650, 651-52 (2002), the defendant

sexually molested his stepdaughter numerous times over several years. The defendant began

molesting the victim when she was thirteen years old and was isolated from her mother, who was

out of town when the abuse occurred. Id. at 652. The victim testified that she “had been

‘looking for a father figure’” and “did not feel she had the option to refuse to have intercourse

with” the defendant. Id. at 651-52. The defendant would threaten to commit suicide if she

stopped having sex with him, so the victim feared that her family “would have no money and

that [her] mother would be upset, and it would be [her] fault that [the defendant] had died.” Id.

at 653. Holding that “proof of psychological pressure and ‘emotional domination [may be]

sufficient to constitute intimidation,’” this Court found sufficient evidence to prove intimidation.

Id. at 654 (alteration in original) (quoting Clark v. Commonwealth, 30 Va. App. 406, 410 -8- (1999)); see also Bondi, 70 Va. App. at 91 (finding sufficient evidence of intimidation where the

defendant was a youth pastor whom the adult victim viewed as “her mentor and father figure”);

Cairns v. Commonwealth, 40 Va. App. 271, 295 (2003) (finding sufficient evidence of

intimidation where the victim testified that “fighting [her stepfather] didn’t really seem like an

option,” and she could not rely on her mother for protection).

Clark v. Commonwealth is particularly on point. There, this Court found sufficient

evidence of intimidation where the victim felt unable to confront the defendant because, “[f]or

many years, he had been her primary caregiver,” “[s]he had always gone to him when she had

problems, because her mother was unreliable and was rarely accessible to her,” and “[s]he

thought that the other members of her family would reject her if she accused her ailing father.”

30 Va. App. at 410. This Court emphasized that the paternal relationship between the defendant

and victim was “a highly relevant circumstance” that the jury could properly consider as

evidence of intimidation. Id. at 410-11.

Considering these authorities, we conclude that the Commonwealth presented sufficient

evidence of intimidation in this case.3 As in many of the cases noted above, M.M. saw Johnson,

a retired police officer, as her father figure. Like the victim in Clark, M.M. relied on Johnson as

her primary caregiver and went to him with her problems because her mother was frequently

unavailable, and M.M. felt isolated from the rest of her family. Although Johnson did not

physically abuse M.M. other than the sexual assaults, M.M. did witness Johnson physically strike

her brother. Cf. Cairns, 40 Va. App. at 295 (finding as evidence of intimidation that the victim

3 Johnson relies on the unpublished case of Stoudt v. Commonwealth, Nos. 2386-98-4; 2387-98-4 (Va. Ct. App. Feb. 15, 2000), in which this Court found the evidence insufficient to prove intimidation. In Stoudt, both the victim and defendant were coworkers and there was no evidence that the victim was “particularly vulnerable to psychological domination” by the defendant. Id. at 6. Stoudt, therefore, involved very different facts than this case. -9- had seen the defendant punch the victim’s brother). Johnson provided significant financial

support to M.M. and her family, paying for their home, clothes, food, and cars, among other

necessities. He withheld money from M.M., conditioning it upon her participation in sexual acts.

M.M. testified that she succumbed to Johnson’s sexual advances because she “felt like [she] had

to” because Johnson held “most of the power” in the family, and she was scared of “losing

everything.” She noted that, after she reported his abuse, the family did, in fact, lose their home

and the financial security Johnson provided.

It is reasonable to conclude that Johnson’s paternal role, and his providing necessary

financial support for M.M. and her entire family, exerted sufficient psychological pressure on

M.M. to overcome her will and that M.M. was “vulnerable and susceptible to such pressure.”

Bondi, 70 Va. App. at 90 (quoting Sutton, 228 Va. at 663). Indeed, Johnson intentionally abused

this dynamic by withholding money until M.M. agreed to let him sexually abuse her. In light of

all this evidence, a reasonable jury could find beyond a reasonable doubt that Johnson

accomplished his acts of sexual abuse by use of intimidation and that he was guilty of attempted

rape, forcible sodomy, sexual penetration with an object, and aggravated sexual battery.

III. CONCLUSION

For the foregoing reasons, we affirm the judgment of the circuit court.

Affirmed.

- 10 -