Patrick Noel Creed v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: June 18, 2002
• Docket: 0593012
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Bray and Humphreys Argued at Richmond, Virginia

PATRICK NOEL CREED MEMORANDUM OPINION * BY v. Record No. 0593-01-2 JUDGE RICHARD S. BRAY JUNE 18, 2002 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY William R. Shelton, Judge

Ernest P. Gates, Jr. (Gates & Alexander, P.C., on brief), for appellant.

Leah A. Darron, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Patrick Noel Creed (defendant) was convicted in a bench trial

of two counts of aggravated sexual battery of a minor, violations

of Code § 18.2-67.3. On appeal, he challenges the sufficiency of

the evidence to support the convictions. Finding no error, we

affirm the trial court.

The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. I.

In reviewing the sufficiency of the evidence, we consider the

record, "in the light most favorable to the Commonwealth, giving

it all reasonable inferences fairly deducible therefrom." Watkins

v. Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998)

(citation omitted). The credibility of the witnesses, the weight

accorded testimony, and the inferences drawn from proven facts are

matters to be determined by the fact finder. Long v.

Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989).

The judgment of the trial court will not be disturbed unless

plainly wrong or unsupported by the evidence. See Code

§ 8.01-680.

Viewed accordingly, the instant record discloses that, during

the summer of 1998, C.B., age nine, was enrolled in a karate class

together with "about ten" other students, including her sister,

stepfather and defendant, a family "friend." "[O]nce or twice

each week," when "everyone would leave [class] to take . . . a

bathroom or a water break," C.B. and defendant "would start . . .

wrestling, but . . . it would turn into not wrestling" when

defendant "touched [her] places that [she] really didn't like him

to touch." C.B. described such "places" as "[w]here a bikini

bathing suit would cover up" and recalled defendant "would . . .

sort of grab them or rub them." When C.B. asked defendant "to

stop," "he just got this little flare in his eye" and "kept on."

- 2 - "About the second time [defendant] did it," C.B. stopped attending

the karate classes.

Defendant subsequently visited C.B.'s home and "told [her]

that if [she] came back to [karate], he would stop." However,

while C.B. and defendant were "in [her] sister's bedroom,"

defendant again touched her in "[t]he same place where the bikini

would cover." When C.B. "tr[ied] to squirm away," defendant "just

got that glare in his eye" and "kept going." Asked by the

prosecutor, "Can you show the Court by touching your part of the

body where he touched you," C.B. indicated, "Right here and right

here."

A.T., age twelve, testified that, on March 18, 1999,

following "a chorus concert" at a local school, she and a friend

were "walking around the school," when defendant, "dressed up in a

karate suit," "approached." The three began "playing around like

[they] were karate people," "kind of acting." However, after "10

minutes, 20 minutes," defendant "picked [A.T.] up," "lifted [her]

up like a baby," "started feeling [her] chest," and "took" her,

"screaming," "kicking," and "squirming," "into the boys'

bathroom." Once inside, defendant "touch[ed]" the child's "back

area" and "chest," "outside of [her] shirt." When a teacher

appeared on the scene and directed the "girls . . . out of there,"

defendant "dropped" A.T. and "went into one of the stalls." A.T.

reported the incident to the police the following morning.

- 3 - At the conclusion of the Commonwealth's case-in-chief,

defendant moved the court to strike the evidence, arguing that,

while the "girls testified that they believe there was some

inappropriate touching," "there was never any words said

regarding trying to arouse or gratify." Defendant reasoned such

conduct "may be indecent liberties or an assault-type of

situation" but not "aggravated sexual battery." The court,

however, disagreed and overruled the motion.

Defendant, a convicted felon, testified he would see C.B.

"twice a week" at karate class and, occasionally, ate dinner at

her home, either before or after class. He acknowledged

"wrestling" with C.B., explaining "[i]n a lot of karate, you grab

the person and wrap the other person up with you," but denied

"intentionally tr[ying] to touch [her] body."

Addressing the testimony of A.T., defendant recalled an

encounter with her at Manchester Middle School, "where the

[karate] school is held," on March 18, 1999. He claimed A.T.

approached him, "asked [him] about karate" and they "started doing

a bunch of moves," "horsing around." Defendant admitted he

"picked [A.T.] up, slung her around, and put her in a trash can"

but insisted "that was it," denying the alleged misconduct.

At the conclusion of all the evidence, defendant renewed his

motion to strike, arguing, "even without [defendant's] testimony

that it didn't occur . . . it certainly was not intentional," and

"[t]he Commonwealth has not proved the underlying sexual abuse."

- 4 - Defendant again characterized the alleged touching, as "indecent

liberties . . . or sexual battery," not aggravated sexual battery.

The court overruled the motion and convicted defendant of the

instant offenses, resulting in the instant appeal.

II.

Code § 18.2-67.3 provides, in pertinent part: "An accused

shall be guilty of aggravated sexual battery if he or she

sexually abuses the complaining witness, and . . . [t]he

complaining witness is less than thirteen years of age . . . ."

To prove the offense, the Commonwealth must establish that the

offender "intentionally touche[d] the complaining witness's

intimate parts or clothing covering such intimate parts[,]"

"with the intent to sexually molest, arouse, or gratify." Code

§ 18.2-67.10(6). "'Intimate parts' means the genitalia, anus,

groin, breast, or buttocks of any person." Code

§ 18.2-67.10(2).

A.

On appeal, defendant first contends C.B.'s description of

"[w]here a bikini bathing suit would cover up" and A.T.'s

references to her "back area" and "chest" were insufficient to

prove a touching of the "genitalia, anus, groin, breast, or

buttocks" contemplated by Code §§ 18.2-67.3 and -67.10(2),

arguments defendant did not present to the trial court.

Rule 5A:18 provides, in pertinent part, that "[n]o ruling

of the trial court . . . will be considered as a basis for

- 5 - reversal unless the objection was stated together with the

grounds therefor at the time of the ruling, except for good

cause shown or to enable the Court of Appeals to attain the ends

of justice." Rule 5A:18. In furtherance of the Rule, we have

oftentimes instructed:

Where an appellant makes a general objection to the sufficiency of the evidence that "[does] not specify in what respects [appellant] considered the evidence to be insufficient to prove [the charged offense,] . . . the issue of whether the evidence was insufficient to prove a particular [unmentioned] element of the offense [is] not properly preserved."

Marshall v. Commonwealth, 26 Va. App. 627, 636, 496 S.E.2d 120,

124 (1998) (quoting Redman v. Commonwealth, 25 Va. App. 215,

220, 487 S.E.2d 269, 272 (1997)).

Although defendant twice moved the court to strike the

Commonwealth's evidence, he failed on each occasion to

specifically challenge the sufficiency of the evidence to

establish the proscribed touching. Defendant, therefore, is

precluded from raising the issue for the first time on appeal to

this Court. Accordingly, finding no justification to apply the

"ends of justice" exception, we decline to consider the

arguments. See Redman, 25 Va. App. at 221-22, 487 S.E.2d at

272-73.

- 6 - B.

Defendant next contends the evidence failed to establish he

touched C.B. and A.T with the requisite intent, an argument

belied by the evidence.

C.B. testified that, during karate classes, when "everyone

would leave to take . . . a bathroom break or a water break,"

defendant touched intimate parts of her body, despite her

protests. When she stopped attending classes, he promised "if

[she] came back to class, he would stop," but repeated the

misconduct at her home, again ignoring the child's objections.

Similarly, A.T. testified defendant "touch[ed]" the

intimate parts of her body, forced her, "screaming" and

resisting, into a men's bathroom and continued the assault,

stopping only when a teacher appeared, then hiding himself in a

"stall."

"'Intent is the purpose formed in a person's mind which

may, and often must, be inferred from the facts and

circumstances in a particular case. The state of mind of an

alleged offender may be shown by his acts and conduct.'" Walker

v. Commonwealth, 12 Va. App. 438, 445, 404 S.E.2d 394, 397

(1991) (citation omitted). Here, defendant acted deliberately,

with singular purpose and persistence, in repeated sexual

assaults upon the two children, conduct under circumstances that

clearly evinced the requisite intent to "sexually molest,

arouse, or gratify" in violation of Code § 18.2-67.3.

- 7 - C.

Finally, defendant characterizes C.B.'s testimony as

incredible, relying upon inconsistencies with her sister's

testimony.

In testing the credibility and weight to be ascribed to the evidence, we must give trial courts and juries the wide discretion to which a living record, as distinguished from a printed record, logically entitles them. The living record contains many guideposts to the truth which are not in the printed record; not having seen them ourselves, we should give great weight to the conclusions of those who have seen and heard them.

Lockhart v. Commonwealth, 34 Va. App. 329, 342, 542 S.E.2d 1, 7

(2001) (citations omitted); see Love v. Commonwealth, 18 Va. App.

84, 90, 441 S.E.2d 709, 713 (1994) ("[C]hild's testimony alone, if

believed by the [fact finder], [is] sufficient to support [the

instant] conviction[s], even in the absence of corroborating

physical or testimonial evidence." (citations omitted)).

The trial court, as fact finder, assessed C.B.'s

credibility, including her inconsistent testimony, accepted her

evidence and convicted defendant. Our review of the record does

not support a finding that the court was plainly wrong.

Accordingly, we affirm the convictions.

Affirmed.

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