COURT OF APPEALS OF VIRGINIA
Present: Judges Annunz iata, Frank and McClanahan Argued at Chesapeake, Virginia

PERNELL LEE VINEY MEMORANDUM OPINION * BY v. Record No. 0559-03-1 JUDGE ROBERT P. FRANK MAY 4, 2004 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON W. C. Andrews, III, Judge Robert Moody, IV (Krinick, Sega ll, Moody & Lewis, on brief), for appellant. Amy L. Marshall, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Pernell Lee Viney (appellant) was convicted in a bench tr ial of two counts of taking indecent liberties with a minor, in violation of Code § 18.2-370. On a ppeal, he contends the Commonwealth did not prove he acted with “lascivious intent,” as required by the co de section and, therefore, the evidence was insufficient to convic t him. We find the ev idence was sufficient to prove lascivious intent and affirm the judgment of the trial court.
BACKGROUND On April 14, 2002, thirteen-year -old A.L. and nine-y ear-old H.H. rode their bikes to Tyler Elementary School to play. While there, the two girls noticed appe llant’s maroon car pull into the parking lot. According to A.L., appellant began cleaning his car. After the girls finished playin g, they rode past appellant. According to A.L., “he looked up at us and we looked at him and then he looked down and we looked down an d he exposed himself.”

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - A.L. further explained that appellant “pulled his s horts up” and “to the side” to expose his penis to them. During this en counter, appellant said noth ing to either of the girls, nor did he motion for them to approach him. The girls im mediately went home and told an adult about the incident. When interviewed by a detectiv e, appellant said he was weari ng an “athletic supporter” that day that was “old and stre tched out.” He admitted hi s penis could have slippe d out of his shorts, but he denied intentionally pulling his shorts aside to expose himself. Appellant also admitted he saw the two girls at the school. At tr ial, appellant maintained he did not intentionally expose himself to the two young girls. He explaine d, “[I]f something fell out, I mean it’s possibl e. I’m not denying that, but there was no la scivious intent. It wasn’t intent ional, and I wasn’t aware of it.” In denying appellant’ s motion to strike, the trial cour t found the girls’ testimony was credible and found lascivious intent “based on [a ppellant’s] actions, the motioning of the eyes and to direct their attention to his groin area and then he pulls up his shorts .” The trial court did not give credence to the appellant ’s alternative explanatio n of the exposure.
ANALYSIS The sole issue before this Court is whether the evidence was sufficient to show lascivious intent, an element of the statutory crime of taking indecent liberties with children. 1 Code § 18.2-370. When the sufficiency of the evidence is challenged on appeal, “[w]e view the evidence in th e light most favorable to the Commonwealth, granting to it all reasonable inferences fairly

1 The relevant portion of Code § 18.2-370 reads, Any person eighteen years of age or over, who, with lascivious intent, shall knowingly and inte ntionally commit any of the following acts with any child under the age of fourteen years shall be guilty of a Class 5 felony: (1) Expose his or her sexual or genital parts to any child to whom such person is not legally married . . . .- 3 - deducible from the evidence.” Cooper v. Commonwealth , 31 Va. App. 643, 646, 525 S.E.2d 72, 73 ( 2000). The appellate court must, therefore, “discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonw ealth and all fair inferences that may be drawn” from the credible evidence. Watkins v. Commonwealth , 26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998). The credibility of the witnesses and the weight of the evidence are matters to be determin ed solely by the trier of fact. Swanson v. Commonwealth , 8 Va. App. 376, 378-79, 382 S.E.2d 258, 259 (1989). Furthermore, the de cision of the trial court will not be disturbed unless plainly wrong or without evidence to support it. McGee v. Commonwealth , 25 Va. App. 193, 197-98, 487 S.E.2d 259, 261 (1997) ( en banc ). “If there is evidence to support the conviction,” we will not substitute our judgment for that of the trier of fact, even were our opinion to differ. Commonwealth v. Presley , 256 Va. 465, 466, 507 S.E.2d 72, 72 (1998). Wactor v. Commonwealth , 38 Va. App. 375, 379-80, 564 S.E.2d 160, 162 (2002). Appellant contends the Comm onwealth’s evidence was insufficient to prove lascivious intent. “‘Intent may, and most often must , be proven by circumstantial evidence and the reasonable inferences to be drawn from proven facts are within the pr ovince of the trie r of fact.’ Fleming v. Commonwealth , 13 Va. App. 349, 353, 412 S.E.2d 180, 183 (1991). ‘Intent may be shown by a person’s conduct and by hi s statements.’ Long v. Commonwealth , 8 Va. App. 194, 198, 379 S.E.2d 473, 476 (1989).” Summerlin v. Commonwealth , 37 Va. App. 288, 297-98, 557 S.E.2d 731, 736 (2002). “A ‘trial court’s decision on the ultima te question of . . . intent represents a finding of fact of the sort accorded great deference on appeal,’ [Hernandez v. New York , 500 U.S. 352, 364 (1991)], and this decision will not be reversed unless clearly erroneous. Id. at 369 . . . .” Robertson v. Commonwealth , 18 Va. App. 635, 639, 445 S.E.2d 713, 715 (1994).- 4 - Appellant and the Co mmonwealth agree that McKeon v. Commonwealth , 211 Va. 24, 175 S.E.2d 282 (1970), is the pivotal case defining “lascivious intent” as the term is used in Code § 18.2-370. 2 In that case, the Supreme Court explained: The word “lascivious” is not defi ned in the statute, and must therefore be given its ordinary meaning in determining the legislative intent in the use of the word in this particular statute. As so determined, the word “las civious” describes a state of mind that is eager for sexual indulgence, de sirous of inciting to lust or of inciting sexual desire and appetite. See Vol. 24, Words and Phrases, Permanent Edition, pp. 447-450, for the numerous cases there collected. Id. at 27, 175 S.E.2d at 284. The Supreme Court recognized that circumstantial evidence of lasciviousness may include “evidence that the defendant was sexually aroused; that he made . . . gestures toward himself or to [the victim]; that he made . . . improper remarks to [the victim]; or that he asked [the victim ] to do anything wrong.” Id.
In McKeon , the defendant was dressed in a bath robe, called the young victim over, and asked that she buy him some gro ceries at a local store. Id. at 25, 175 S.E.2d at 283. She agreed, went to the store, and returned with the items. Id. As she began to leave his yard, McKeon called to her to “turn around.” Id. As she did, she saw him smiling, standing on his porch with his hands on his hips. Id. McKeon’s robe was open in front showing his “private parts.” Id. He was not sexually aroused. He took no overt action to expose himself. Id. The Supreme Court held: there is no evidence that the defe ndant was sexually aroused; that he made any gestures toward himsel f or to her; that he made any improper remarks to her; or that he asked her to do anything wrong. The fact that defendant told [the victim] to “turn around” and that he was smiling at her at the time, when she was 35 feet away from him, is not proof beyond a reasonable doubt that he

2 McKeon was decided prior to the current codification of taki ng indecent liberties with children.- 5 - knowingly and intentionally expo sed himself with lascivious intent. Id. at 27, 175 S.E.2d at 284. In Breeding v. Commonwealth , 213 Va. 344, 192 S.E.2d 807 (1972) ( per curiam ), the Supreme Court also found no lascivious intent. Breeding drove up to the area where two young girls were playing. Id. at 344, 192 S.E.2d at 807. He asked them for directions. Id. When the girls approached the car, they noticed Breed ing’s trousers were unbuckled and unzipped, and they saw his “privacy.” Id. After obtaining the directions, Breeding left. Id. at 345, 192 S.E.2d at 807. The Supreme Court found this evidence in sufficient to prove lascivious intent, citing
McKeon . Id. There was no evidence Breeding took any overt action to expose himself. In contrast, the Supreme Cour t found in Campbell v. Commonwealth , 227 Va. 196, 313 S.E.2d 402 (1984), that the Commonwealth had pr oved lascivious intent. Campbell, who was hiding behind a bush, gestured “toward himself” to get a li ttle girl’s attention. Id. at 197, 313 S.E.2d at 403. After getting her attention, he pu lled his pants off to his knees, exposing his genitalia. Id. at 198, 313 S.E.2d at 403. Campbell th en beckoned to her once again. Id. The Supreme Court, after review ing the factors in McKeon , opined that these factors are disjunctive, i.e., “proof of any one factor can be sufficient.” Id. at 200, 313 S.E.2d at 404. In finding lascivious intent, the Supreme Court found the evidence showed that Campbell gestured towards himself both before and after pulling down his pants. Id. He placed himself in a position where he could be seen, made sure he was seen by the child, and then proceeded to expose himself. Id. He then beckoned to the child once again. Id. This Court reviewed the McKeon factors in Holley v. Commonwealth , 38 Va. App. 158, 562 S.E.2d 351 (2002). Holley’s neighbor provid ed day care for several young children. Id. at 160, 562 S.E.2d at 352. Holley developed a habit of st anding naked in front of the glass door to his house, which faced his neighbor’s yard. Id. at 160, 562 S.E.2d at 352. Once, he whistled at- 6 - his neighbor while he stood there naked. Id. at 161, 562 S.E.2d at 352. Another time, he waved his hands over his head to get the atten tion of a mother dropping off her baby. Id. Finally, the police videotaped Holley naked at the door while he “had his hand on his penis and jerked it up and down.” Id. at 161, 562 S.E.2d at 352-53. The neighbor , who was outside with the children, also observed this incident. Id. When questioned by the police, Holley admitted he had a “‘problem with exposure.’” Id. at 161, 562 S.E.2d at 353. This Court found at least two of the McKeon factors were proven. Id. at 166, 562 S.E.2d 355. The Court explained that the hand motions on his penis proved Holley was sexually aroused at the time of the exposure. Id. The Court also consider ed his efforts to get his neighbor’s attention and his admitted “problem with exposure.” Id. The trial court in the instant case heard th e evidence and found lascivious intent based on appellant’s “actions, the motioning of the eyes, a nd [his directing] their attention to his groin area, and then he pulls up his shorts.” The tria l court rejected appellan t’s explanation that he accidentally exposed his penis to the girls. In stead, the court believed th e young witnesses. This evidence supports a finding that appe llant directed the girls’ atten tion to his groin area by making eye contact with them and then looking down to that area. After looking down, he took the additional, intentional steps of using his hand to “pull his shorts up” and “to the side” to expose his penis to them. “In its role of judging witness credibility, th e fact finder is entitle d to disbelieve the self-serving testimony of the accused and to concl ude that the accused is lying to conceal his guilt.” Marable v. Commonwealth , 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998). Appellant’s affirmative acts distinguish this matter from the facts in McKeon , where no testimony proved McKeon made any gesture or t ook any physical steps to cause or permit the
exposure.- 7 - In applying the McKeon criteria, we note that no ev idence suggests appellant was sexually aroused, made any improper remarks, or asked the girls to do something wrong. However, we do find one of the McKeon criteria. Appellant gestured toward his groin area with his eyes. Further, once he had the girls’ attention focused on th at area of his body, he intentionally adjusted his shorts to expose his penis. In a ma nner similar to the defendant in Campbell , 227 Va. at 200, 313 S.E.2d at 404, appellant here positioned himself to ensure that the victims saw him. Appellant th en drew their gaze to his gr oin by looking down and moving his hand there. Finally, he purposefu lly “pull[ed] his shorts up” and “to the side,” exposing his penis to the girls. The trier of fact could reas onably have found these movements were improper “gestures toward himself,” one of the f actors showing lascivious intent. McKeon , 211 Va. at 27, 175 S.E.2d at 284. As the Supreme Court has held, “p roof of any one factor can be sufficient.” Campbell , 227 Va. at 200, 313 S.E.2d at 404. A rational trier of fact could conclude the evidence proved beyond a reasonable doubt that appellant’s movement of his shorts, comb ined with the eye movement described by the complainants, was enough to deduce that his intent was lascivious. We, therefore, affirm the conviction. Affirmed.