COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Annunziata and Overton 

Argued at Richmond, Virginia 

STEVEN ERIC HOLDEN 

 MEMORANDUM OPINION* BY 

v. Record No. 2245-97-2 JUDGE JERE M. H. WILLIS, JR. 

 JUNE 30, 1998 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF NORTHUMBERLAND COUNTY 

Joseph E. Spruill, Jr., Judge 

 William A. Nunn, III (William A. Nunn, III, 

P.C., on brief), for appellant. 

 Donald E. Jeffrey, III, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Steven Eric Holden contends that the evidence is 

insufficient to support his conviction for forcible sodomy in 

violation of Code § 18.2-67.1. He argues that the Commonwealth 

failed to show that the sodomy was accomplished against the will 

of the complaining witness by force, threat or intimidation. We 

affirm the judgment of the trial court. 

 On appeal, we review the evidence in the 

light most favorable to the Commonwealth, 

granting to it all reasonable inferences 

fairly deducible therefrom. The judgment of 

a trial court sitting without a jury is 

entitled to the same weight as a jury verdict 

and will not be set aside unless it appears 

from the evidence that the judgment is 

plainly wrong or without evidence to support 

it. 

Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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(1987). 

 On the night of February 23, 1997, LaShawna, age thirteen, 

who had been asleep on a sofa in a room shared by nine other 

children, was awakened by Holden "rubbing [her] leg." Holden, 

who was intoxicated, turned LaShawna onto her side with her face 

towards the sofa, and pulled her underpants down. He then moved 

her over, and "was pushing on [her] vagina trying to force his 

penis in [her] behind." With his hand on her "vagina," Holden 

penetrated LaShawna's anus with his penis. The attack ended when 

LaShawna's mother entered the room. 

 An accused shall be guilty of forcible sodomy 

if he or she engages in . . . anal 

intercourse with a complaining witness . . . 

and 

 2. The act is accomplished against 

the will of the complaining 

witness, by force, threat or 

intimidation of or against the 

complaining witness or another 

person, or through the use of the 

complaining witness's mental 

incapacity or physical 

helplessness. 

Code § 18.2-67.1(A). 

 Viewed in the light most favorable to the Commonwealth, 

Martin, 4 Va. App. at 443, 358 S.E.2d at 418, the evidence 

supports the trial court's finding that the anal intercourse was 

accomplished against LaShawna's will through the use of force.1 

 

 1Because we find ample evidence that the sodomy was 

accomplished by "force," we need not decide whether the evidence 

supports also a finding that the attack was accomplished by 

"intimidation." The Commonwealth concedes in its brief that the 

sodomy was not accomplished through the use of a "threat" because 
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While LaShawna neither protested nor resisted, the Commonwealth 

was not required to prove that she "cried out" or "physically 

resisted." Code § 18.2-67.6; Farish v. Commonwealth, 2 Va. App. 

627, 631, 346 S.E.2d 736, 738-39 (1986). Cf. Sutton v. 

Commonwealth, 228 Va. 654, 663, 324 S.E.2d 665, 670 (1985) ("'if 

by an array of physical force he so overpowers her mind that she 

does not resist, he is guilty of rape'"). LaShawna pretended to 

be asleep because she was "scared to move or do anything." She 

testified that she "did not want this to happen." Holden was 

behind her, and the sofa was in front of her, restricting her 

movement. Holden "kept [her] from moving," and "[i]f [she] tried 

to get up, he would hold [her] back." 

 The trial court heard LaShawna's testimony and observed her 

demeanor. It was entitled to consider the difference in size and 

age between Holden and LaShawna. Some force was inherent in the 

commission of the charged offense. However, Holden employed 

enough additional force to overcome LaShawna's will by preventing 

her from moving and deterring any attempt by her to free herself. 

Cf. Johnson v. Commonwealth, 5 Va. App. 529, 534, 365 S.E.2d 

237, 240 (1988) (requiring showing of force beyond the force 

required to accomplish sexual battery). 

 The judgment of the trial court is affirmed. 

(..continued) 

there was no evidence of an "expression of an intention to do 

bodily harm." Sutton v. Commonwealth, 228 Va. 654, 663, 324 

S.E.2d 665, 670 (1985) (defining "threat" for purposes of the 

rape statute). 
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 Affirmed.