COURT OF APPEALS OF VIRGINIA UNPUBLISHED
Present: Judges Athey, Friedman and Raphael Argued at Richmond, Virginia
ONDRIA SAMUEL HARDEMAN MEMORANDUM OPINION* BY v. Record No. 1768-22-2 JUDGE CLIFFORD L. ATHEY, JR. MAY 28, 2024 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL W. Edward Tomko, III, Judge
Terry Driskill for appellant.
Victoria Johnson, Senior Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
A jury empaneled in the Circuit Court of the City of Hopewell (“trial court”) convicted
Ondria Hardeman (“Hardeman”) of aggravated sexual battery, contributing to the delinquency of a
minor, and two counts of assault and battery. Hardeman appeals from his aggravated sexual battery
conviction, alleging that “there was insufficient evidence to show force, threat[,] or intimidation”
pursuant to Code § 18.2-67.3(A)(4). We disagree and affirm the trial court’s decision.
I. BACKGROUND1
In May of 2021, Hardeman, who was 36 years old, moved into the home of his father, his
stepmother, and his stepsiblings, including C.H., a 15-year-old boy, and M.H., a 13-year-old girl.
* This opinion is not designated for publication. See Code § 17.1-413(A). 1 Following “familiar principles of appellate review, the facts will be stated in the light most favorable to the Commonwealth, the prevailing party at trial.” Blackwell v. Commonwealth, 73 Va. App. 30, 40 (2021) (quoting Gerald v. Commonwealth, 295 Va. 469, 472 (2018)). This “include[es] any inferences the factfinder may reasonably have drawn from the facts proved.” Id. at 44 (quoting Hannon v. Commonwealth, 68 Va. App. 87, 92 (2017)). About a month later, Hardeman began “hanging out” with M.H. and C.H. at the local mall and in
the family’s garage. At trial, M.H. testified that while in the garage, Hardeman often spoke to her
and her brother about “inappropriate” topics like smoking “blunts,” drinking alcohol, and engaging
in sexual relationships. While doing so, he also gave C.H. alcohol and cigarettes. During one
discussion, M.H. testified that she heard Hardeman volunteer “that he would take [either child] to
[their] boyfriend[] [or] girlfriend’s house and [they] could have sex with them.” Hardeman
continued to involve the children in this “inappropriate sex talk” even after M.H. complained to
Hardeman to stop.
M.H. also testified that Hardeman was physically violent towards her and her brother. She
stated that Hardeman would “wrestle” with her though she was smaller and shorter than either
Hardeman or her brother. While “wrestling,” Hardeman would place her in a headlock in such a
way that her “head was near his private parts . . . .” And during multiple wrestling sessions,
Hardeman “grab[bed]” M.H.’s breast while they wrestled and “squeez[ed] it tight to make it hurt.”
Each time this happened, M.H. testified that she asked Hardeman to stop and also advised him that
he was hurting her. After being confronted, Hardeman released M.H. and explained to her that he
squeezed her breast only to demonstrate that the breast was a “pressure point for girls.” On three
separate occasions, C.H. also testified that he witnessed Hardeman’s actions, and M.H. also stated
that this behavior “happen[ed] a lot” and occurred where M.H.’s mother “couldn’t see” or “hear
[the] wrestling.” M.H. noted as well that she saw Hardeman punch C.H. on one occasion to the
point that he left a bruise on the child’s face. And M.H. explained that Hardeman’s violence
towards C.H. only stopped after a family member confronted Hardeman about it.
M.H. also testified that on July 4, 2021, while she was alone in her mother’s bedroom,
Hardeman approached her from behind and grabbed her around the waist. She further testified that
he “tr[ied] to walk [her] over to the bed” before she pushed him away and fled from the bedroom.
-2- Later that same day, Hardeman told M.H. to take a blanket to his bedroom, and after she did so, he
grabbed her face and “kind of tried to lean [sic] [M.H.] over to the bed.” Although M.H. testified
that she was able to escape, Hardeman’s behavior persisted when later that evening he invited M.H.
to play a computer game in his room. That night, when M.H. came into Hardeman’s room to play
on the computer, he seized her, removed her clothing, and penetrated her vagina with his penis.2
Only after M.H. struggled with Hardeman and pleaded with him to stop did he permit M.H. to
leave.
M.H. testified that after this incident in his bedroom Hardeman became more aggressive
toward her. She stated that Hardeman began sneaking up behind her as she performed household
tasks and rubbed his penis against her buttocks. She further testified that on another occasion,
Hardeman rubbed her genital area through her bathing suit. When she tried to use the computer in
Hardeman’s room again, Hardeman attempted “sexual intercourse with [her].” When asked
whether she thought to report Hardeman’s increased aggression towards her, she said it would be
“pointless to tell” the adults in her life about his actions. She thought reporting Hardeman “would
also hurt [her] dad’s feelings since he hadn’t seen [Hardeman] since he was eight.” She worried
that her father would “get sick or have a heart attack or stroke because of all the stress” if she
reported the abuse to him.
M.H. next stated to the trial court that there came a time when she and her mother moved to
a different house following a violent altercation between her aunt, her mother, and Hardeman.
While at that house, M.H. disclosed Hardeman’s abuse through a letter to several family members.
M.H. then testified that upon reading this letter, her mother reported Hardeman’s abuse to law
2 The Commonwealth introduced this evidence primarily in support of the carnal knowledge charge, but it was also used by the Commonwealth to show that Hardeman touched M.H. while “wrestling” with the “intent to sexually molest, arouse or gratify.” Hardeman challenges his conviction only on the ground that there was insufficient evidence that he used force to touch M.H., waiving an intent-based challenge. -3- enforcement. As a result, Hardeman was indicted on three counts of aggravated sexual battery, one
count of contributing to the delinquency of a minor, and one count of carnal knowledge.
At the conclusion of the Commonwealth’s case-in-chief, Hardeman moved to strike the
evidence regarding the three counts of aggravated sexual battery, claiming the Commonwealth did
not prove any one of the “force, threat[,] or intimidation” elements. The trial court granted
Hardeman’s motion to strike as to the counts involving Hardeman touching M.H. through her
bathing suit and placing his penis against her buttocks.3 The trial court, however, overruled the
motion to strike the aggravated sexual battery charge arising from Hardeman squeezing M.H.’s
breast when they wrestled.
Testifying in his own defense, Hardeman admitted that he struck C.H. “eight times” starting
from the time he began to live with the family, but he denied that he provided C.H. with cigarettes
or alcohol. He also denied wrestling with M.H., grabbing her breast, or ever “brush[ing] up on
[M.H.].” The Commonwealth subsequently entered Hardeman’s two prior felony convictions into
evidence on cross-examination. At the conclusion of all the evidence, Hardeman moved to strike
the remaining charges and the trial court denied his motion.
The jury was instructed and following closing arguments, they retired to deliberate. The
jury returned their verdicts convicting Hardeman on all the remaining charges except the carnal
knowledge charge.4 Hardeman then moved to set aside the aggravated sexual battery verdict “as
being contrary to the law and the evidence,” contending that the record contained insufficient
evidence to show Hardeman acted with “force, threat[,] or intimidation.” The trial court took the
3 The trial court ruled that, because M.H. told Hardeman to stop, she was not intimidated, causing these counts to be reduced to simple assault and battery as the Commonwealth did not alternatively assert that these acts were done under force or threat. 4 The jury deadlocked on the carnal knowledge charge, causing the trial court to declare a mistrial as to that charge. -4- motion to set aside under advisement and received additional briefing. In his brief, Hardeman
asserted that his aggravated sexual battery conviction should be set aside because the force alleged
by the Commonwealth was inherent in the touching itself, having occurred during the activity of
wrestling. The Commonwealth argued in its post-trial brief that the element of force was met and,
in the alternative, argued that the trial court erred in failing to find that the element of intimidation
was met. The trial court denied the motion to set aside the verdict, upholding the conviction. The
trial court rejected the Commonwealth’s argument that there was sufficient evidence to prove that
Hardeman intimidated M.H. But it concluded that the Commonwealth’s evidence satisfied the
element of force since Hardeman’s wrestling conduct “wasn’t a simple touching.” Hardeman
appealed.
II. ANALYSIS
A. Standard of Review
“When reviewing the sufficiency of the evidence, ‘[t]he judgment of the trial court is
presumed correct and will not be disturbed unless it is plainly wrong or without evidence to support
it.’” McGowan v. Commonwealth, 72 Va. App. 513, 521 (2020) (alteration in original) (quoting
Smith v. Commonwealth, 296 Va. 450, 460 (2018)). “In such cases, ‘[t]he Court does not ask itself
whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’” Id.
(alteration in original) (quoting Secret v. Commonwealth, 296 Va. 204, 228 (2018)). “Rather, the
relevant question is whether ‘any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.’” Vasquez v. Commonwealth, 291 Va. 232, 248 (2016) (quoting
Williams v. Commonwealth, 278 Va. 190, 193 (2009)). “If there is evidentiary support for the
conviction, ‘the reviewing court is not permitted to substitute its own judgment, even if its opinion
might differ from the conclusions reached by the finder of fact at the trial.’” McGowan, 72
Va. App. at 521 (quoting Chavez v. Commonwealth, 69 Va. App. 149, 161 (2018)). However, to
-5- the extent that resolving a sufficiency challenge requires statutory interpretation, that aspect of the
analysis “presents a pure question of law and is accordingly subject to de novo review by this
Court.” Washington v. Commonwealth, 272 Va. 449, 455 (2006).
B. The record contains sufficient evidence to convict Hardeman of using “force” to commit aggravated sexual battery.
Hardeman contends that his conviction for aggravated sexual battery should be reversed
because “[t]here is simply no evidence beyond the quantum of pressure” in the record that shows
that he “overcame the will of the victim” under Johnson v. Commonwealth, 5 Va. App. 529, 534
(1988), overruled by Robinson v. Commonwealth, 70 Va. App. 509 (2019) (en banc). Instead, he
contends that “surprise,” instead of force, is what was used to accomplish the touching, thus
failing to satisfy Code § 18.2-67.3(A)(4). We disagree.
“The Virginia Supreme Court has long held that ‘when analyzing a statute, we must
assume that “the legislature chose, with care, the words it used . . . and we are bound by those
words as we [examine] the statute.”’” Eley v. Commonwealth, 70 Va. App. 158, 163 (2019)
(alterations in original) (quoting Doulgerakis v. Commonwealth, 61 Va. App. 417, 420 (2013)).
Thus, where the statutory language is clear we “must give the words their plain meaning.”
Crislip v. Commonwealth, 37 Va. App. 66, 71 (2001). This Court has previously held the term
“force” in Code § 18.2-67.3(A)(4) to be “clear” and unambiguous. Robinson, 70 Va. App. at
516.
Aggravated sexual battery occurs when the “accused . . . sexually abuses the complaining
witness, and” an aggravating factor occurs. Code § 18.2-67.3(A). One such aggravating factor
is when the act was “accomplished against the will of the complaining witness by force, threat or
intimidation.” Code § 18.2-67.3(A)(4) (emphasis added). “The Code itself does not define force
in the context of sexual offenses.” Nelson v. Commonwealth, 73 Va. App. 617, 624 (2021). But
as the General Assembly has declined to textually limit the term to “actual force,” the -6- Commonwealth may prove a sexual battery was committed by force by introducing evidence that
includes “both actual and constructive force.” Martin v. Commonwealth, 272 Va. 31, 34 (2006).
The evidence must show that the “force used by the defendant” was “sufficient to accomplish the
act as well as to overcome the will of the victim.” Wactor v. Commonwealth, 38 Va. App. 375,
381 (2002). In addition, “[t]o overcome the victim’s will, the force must be ‘sufficient to
overcome [her] resistance . . . .’” Id. (all but first alteration in original) (quoting Snyder v.
Commonwealth, 220 Va. 792, 796 (1980)). And to determine whether a victim’s resistance has
been overcome, we consider the “totality of the circumstances.” Nelson, 73 Va. App. at 624.
Black’s Law Dictionary defines “actual force” as “[f]orce consisting in a physical act.”
Actual Force, Black’s Law Dictionary (11th ed. 2019). We construed actual force in Johnson to
find that the actual force required for a violation of Code § 18.2-67.3(A)(4) involves “some force
other than merely that force required to accomplish the unlawful [act].” 5 Va. App. at 534.
There, the trial court had convicted the defendant where the evidence showed he battered a
14-year-old boy by holding the boy “real close to him” while touching his genitals. Id. at 531.
But during the touching the boy “was awake and merely pretended to be asleep.” Id. at 534. We
reversed this conviction on the basis that the Commonwealth did not show the touching was
done by force since it “was accomplished by surprise rather than by threat or intimidation.” Id.
This holding remained undisturbed for 31 years until we “reconsider[ed]” it in Robinson. 70
Va. App. at 516.
In Robinson, the victim met the defendant upon returning home. Id. at 512. After telling
her, “[y]ou just woke me up,” the defendant grabbed the victim’s “breasts right behind [her]
nipples and twisted as hard as he could.” Id. She responded by “smack[ing] his hands away”
and by telling “him to get off of her.” Id. He finally let go “[a]bout maybe a minute later.” Id.
(alteration in original). The trial judge found the defendant guilty of sexual battery, reasoning
-7- that “the evidence indicates that the requisite degree of force was applied” due to “the manner”
the victim said “[Robinson] grabbed and held and twisted her breasts.” Id. at 513 (alteration in
original).
We agreed with the trial court’s holding and found that the facts in Robinson involving
the application of actual force satisfied the force element of Code § 18.2-67.4(A)(i). We
reasoned that Robinson accomplished the touching “by force” because upon grabbing the
victim’s breasts he “twisted [them] as hard as he could”—and held on to them in that manner for
about a minute. Id. at 517. Thus, as we are guided by Robinson, the “force” element in Code
§ 18.2-67.3(A)(4) can be satisfied by evidence of actual force separate from the initial touching
itself that overcomes the victim’s will. Robinson, 70 Va. App. at 516.5
Further, like other sexual offenses, aggravated sexual battery may also be proven solely
through evidence of “constructive force.” Nelson, 73 Va. App. at 625. A primary form of
constructive force involves the absence of the victim’s consent. See Gonzales v.
Commonwealth, 45 Va. App. 375, 383 (2005) (en banc) (“[I]f the victim did not consent, the
specific issue in the instant case, the use of force is shown by the act of non-consensual [sexual
act] itself.”). Our Supreme Court has provided that “in the context of sexual crimes, an act
undertaken against a victim’s will and without the victim’s consent is an act undertaken with
force.” Martin, 272 Va. at 35 (emphasis added). And “[p]roof of the absence of legal consent
provides ‘all the force which the law demands as an element of the crime.’” Id. (emphasis
added) (quoting Bailey v. Commonwealth, 82 Va. 107, 111 (1886)). To do so, “[t]he
5 Our conclusion is consistent with similar cases involving sexual crimes that also require proof of “force, threat or intimidation.” See, e.g., Sabol v. Commonwealth, 37 Va. App. 9, 17 (2001) (finding sufficient evidence of “force” for rape where the defendant pushed the victim down a hallway to the bedroom before initiating the conduct there); Clark v. Commonwealth, 30 Va. App. 406, 410 (1999) (finding sufficient evidence of “force” to support an aggravated sexual battery conviction where the defendant laid on top of the victim before sexually touching her). -8- prosecution does not need to prove ‘positive resistance’ by the victim.” Nelson, 73 Va. App. at
625 (quoting Jones v. Commonwealth, 219 Va. 983, 986 (1979)). And alone “[a] lack of
consent establishing constructive force is adequate to prove the element of force required to
uphold the appellant’s conviction for aggravated sexual battery.” Id. at 626 (emphases added).
In addition to lack of consent, “[c]ircumstances supporting a finding of [constructive]
force [also] include the victim’s relationship to the defendant, the aggressive nature of the
defendant’s behavior, and the victim’s fear during and after the crime.” Bondi v.
Commonwealth, 70 Va. App. 79, 89 (2019). The factfinder may also consider the crime’s “time
and place” and the “relative physical capabilities” of the victim and the perpetrator. Wactor, 38
Va. App. at 383.
Here, the record is replete with evidence of both actual and constructive force sufficient
to support Hardeman’s conviction for aggravated sexual battery. First, as in Robinson, the fact
that Hardeman touched M.H.’s breast and then “squeez[ed] it tight to make it hurt” is evidence
that he used actual force to accomplish the touching—through both the extent and duration of the
squeezing of the breast. The Robinson Court found that the perpetrator used force to sexually
batter the victim because he not only touched the victim’s breasts but he also “twisted [them] as
hard as he could”—and held onto them for about a minute. See Robinson, 70 Va. App. at 512.
Its reasoning applies with full force here.6 Hardeman’s extended squeezing of M.H.’s breasts
6 At oral argument Hardeman attempted to distinguish Robinson by claiming that because the victim in Robinson was touched for around a minute to the point the victim had to “smack [his] hand away” that force was not used here to “overcome [M.H.’s] will” merely because Hardeman stopped each squeeze after M.H. asked him to stop. His argument is not persuasive. Code § 18.2-67.3(A)(4)’s text does not require analyzing the duration and intensity of the touching in question to decide whether sufficient “force” existed. It does not textually require resistance. And our precedent does not either. Nelson, 73 Va. App. at 625. The provision’s text plainly says that the act proscribed is “accomplished against the will of the complaining witness by force, threat or intimidation.” Code § 18.2-67.3(A)(4) (emphases added). Thus, these
-9- until they hurt was sufficient evidence of actual force. As evidenced by M.H.’s pleas to stop,
Hardeman exerted force that went well beyond the touch inherent in wrestling. Thus, the record
contains sufficient actual force evidence to convict Hardeman, in the form of Hardeman’s
squeezing of M.H.’s breast to the point she pled with him to stop.
Each time Hardeman squeezed M.H.’s breast, she asked him to stop because of the pain,
showing that this squeezing was without her consent. As a result, under Martin, which we find
dispositive here, this touching was “an act undertaken with force” that provided “‘all the force
which the law demands as an element of [aggravated sexual battery].’” 272 Va. at 35 (emphasis
added) (quoting Bailey, 82 Va. at 111). But M.H.’s response to Hardeman’s touch is not the only
evidence of constructive force here.
Further, the parties, their family dynamics, and the context around Hardeman’s actions
also show he accomplished this touching by constructive force. For example, Hardeman was a
36-year-old man “wrestling” a 13-year-old girl. As such, the parties’ “relative physical
capabilities” strongly compel finding that Hardeman used constructive force to “overcome
[M.H.]’s will.” Wactor, 38 Va. App. at 383. Hardeman was also M.H.’s stepbrother, and he
used that relationship against her in justifying his conduct, flaunting his relationship with M.H.’s
father to prevent her from reporting his abuse. He also abused her brother in her presence,
making her afraid to report Hardeman’s abuse of C.H. because she feared that if her family did
considerations are merely a part of the totality of the circumstances analysis in determining whether force was used and none by themselves are factually dispositive. By contrast, the duration or intensity of the touching comes into play when evaluating constructive force, as it is a consent-focused inquiry, as opposed to deciding whether actual force was used at all. See, e.g., Wactor, 38 Va. App. at 382 (providing that the court may consider “the relative physical condition of the participants and the degree of force manifested” to decide whether force was used (emphasis added)). - 10 - not believe her that Hardeman would start beating her too.7 In addition, the “time and place” of
the wrestling also evinces the use of constructive force. M.H. testified that the wrestling
occurred in areas where her mother “couldn’t see” or “hear [the] wrestling.” See Wactor, 38
Va. App. at 383. Finally, Hardeman’s actions during the July 4, 2021 incidents and afterwards
evince an “aggressive nature” toward M.H. Bondi, 70 Va. App. at 89. Hence, the record
contains ample evidence of both actual and constructive force sufficient to support Hardeman’s
conviction for aggravated sexual battery.
“[F]orce generally requires proof of more than ‘merely the force required to accomplish
. . . the statutorily defined criminal acts.’” Id. at 88 (second alteration in original) (quoting Sabol
v. Commonwealth, 37 Va. App. 9, 16 (2001)). Viewing the facts in the light most favorable to
the Commonwealth, considering the totality of the circumstances and the facts arising therefrom,
there was sufficient evidence of actual and constructive force to support Hardeman’s conviction
for aggravated sexual battery. Thus, we affirm his conviction.
III. CONCLUSION
For the foregoing reasons, we hold that the trial court did not err in finding the evidence
of force in the record sufficient to support Hardeman’s conviction. Therefore, we affirm its
judgment.
Affirmed.
7 In the alternative, the Commonwealth also asserts that the trial court’s ruling could be justified under the “right-result-wrong-reason doctrine” because it claims there is evidence in the record suggesting that the conduct in question here arose because M.H. was intimidated by Hardeman instead of being forced by him, as either ground would support his conviction under Code § 18.2-67.3(A)(4). As we affirm Hardeman’s conviction on the grounds that there is sufficient evidence of force in the record, we decline to address this argument in order to decide this case “on the best and narrowest grounds available.” Butcher v. Commonwealth, 298 Va. 392, 396 (2020) (quoting Commonwealth v. White, 293 Va. 411, 419 (2017)). - 11 -