COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Decker, Judges Humphreys, Petty, Beales, Alston, * Huff, Chafin, O’ Brien,

Russell, and Malveaux Argued at Richmond, Virginia

JOHNATHAN REEVES ROBINSON OPINION BY v. Record No. 1679

- 17

- 2 JUDGE RANDOLPH A. BEALES JUNE 18, 2019 COMMONWEALTH OF VIRGINIA

UPON A REHEARING EN BANC
FROM THE CIRCUIT COURT OF AMELIA COUNTY

Paul W. Cella , Judge Timothy A. Hennigan (The Nguyen Law Firm, PLC, on brief) , for appellant. Victoria Johnson , Assistant Attorney General (Mark R. Herring, Attorney General, on brief) for appellee.
This appeal raises the question of what constitutes force in the crime of sexual battery. At the conclusion of a bench trial, appellant Johnathan Reeves Robinson was convicted of sexual battery in violation of Code § 18.2

- 67.4 by the Circuit Court of Amelia County

. On appeal , Robinson challenged the sufficiency of the evidence, and a divided p anel of this Court reversed the conviction. Robinso n v. Commonwealth , Record No. 1679

- 17

- 2 ( Va. Ct. App. Jan. 15, 2019). The Commonwealth petitioned this Court for a rehearing en banc . We granted the Commonwealth’s petition for rehearing en banc , stayed the mandate of the panel decision, and reinstated the appeal on the docket of this Court. Upon a rehearing en banc , we find that the trial court did not err and affirm appellant’s conviction.

* Judge Alston participated in the hearing and decision of this case prior to the effective date of his retirement on June 14, 2019. PUBLISHED- 2

- I. B ACKGROUND We “view[] the evidence in the light most favor able to the Commonwealth, as we must since it was the prev ailing party in the trial court. ” Riner v. Commonwealth , 268 Va. 296, 330 (2004). So viewed, t he victim, R.W., 1 testified that in April and May of 2017, she and her husband were residing with Robinson and his girlfriend in a house belonging to Robinson ’s girlfriend . R.W. testified that , in the afternoon of May 23 , 2017, she returned to the house with her sister after an outing. Because the door was latched, she knocked on t he door to en ter the house. Robinson opened the door and told her, “ [ Y ] ou just woke me up .” She stated that she apologized and stepped into the house. She testified, “ [H] e grabbed my breasts right behind my nipples and twisted as hard as he could.” She stated , “ I smacked his hands a way” and that then “[h]e smacked my bottom.” R.W.’s sis ter testified that she was standing ne xt to R.W. during the incident and that she

saw Robinson “put his hands on my sister’s breasts and twist[].” She further testified that R.W. th en told “him to get off of her” and that he finally removed his hands from her breasts “[a]bout maybe a minute later.”
R.W. te stified that there were other occasions, including at least one prior to the incident on May 23, 2017, in which Robinson had touch ed her in a sexual way and that she had expressed to him on multiple occasions that she did not want him to touch he r. She also testifi ed that Robinson had told her that “if [she] said something” about his actions, she and her husband would have to

move o ut of the house. She add ed that , at the time, she and her husband had nowhere else to go

. During her testimony, R.W. also stated that Rob inson “cupped the front of me and told me he can have it if he wanted it,” although it is somewhat unclear from her testimony when that action occurred.

1 We refer to the complaining witness by her initials in an attempt to maintain her privacy.- 3

-

The trial judge denied Robinson’s motion to strike a nd found Robinson guilty of sexual battery based on the May 23 , 2017 incident. Specifically, t he trial judge found that “because of the manner in which [R.W.] said th at [Robinson] grabbed and held and twisted her breasts, the requirement of force is met.” The judge concluded that “the evidence indicates that the requisite degree of force was applied.” On appeal , Robin son’s sole assignment of error state s, “The trial c ourt erred in finding evidence sufficient to convict based on use of force when there was no evidence that the alleged touching was accomplished by the use of force sufficient to overcome the victim’s will.”
II. A NALYSIS When considering the sufficiency o f the evidence on appeal, “a reviewing court does not ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’” Crowder v. Commonwealth , 41 Va. App . 658, 663 (2003) (quoting Jackson v. Virginia , 443 U.S. 307, 318

- 19 (1979)). “Viewing the evidence in the light most favorable to the Commonwealth, as we must since it was the prevailing party in the trial court,” Riner v. Commonwealth , 268 V a. 296, 330 (2004), “[w]e must instead ask whether ‘ any rational tri er of fact could have found the essential elements of the crime beyond a reasonable doubt , ’” Crowder , 41 Va. App. at 663 (quoting Kelly v. Commonwealth , 41 Va. App . 250, 257 (2003) ( en banc )). “This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson , 443 U.S. at 319.
R esolution of Robinson’s assignment of error also requires statutory interpretation , which we conduct de novo

. Commonwealth v. Amos , 287 Va. 301, 305

- 06 (2014); Hodges v. Commonwealth , 45 Va. App. 118, 123 (2005 ) ( en banc ).- 4

-

Code § 18.2

- 67.4(A)(i) state s, “A n accused is guilty of sexual battery if he sexually abuses, as defined in § 18.2

- 67.10, . . . the complaining witness against the will of the complaining witness, by force, threat, intimidation, or ruse.” The definition for “sexual abuse” includes “an act committed with the intent to sexually molest, arouse, or gratify any person, where . . . [t]he accused intentionally touches the complaining witness’s intimate parts or material directly covering such intimate parts.” Code § 18.2

- 67.10(6)(a). “Intim ate parts” is defined as the “genitalia, anus, groin, breast, or buttocks of any person.” Code § 18.2

- 67.10(2). The only issue here is whether the force requirement has been met, s ince Robinson concedes the trial court ’s factual finding of the sexual abuse and that the touching was performed against the will of the complaining witness. When reviewing conviction s of sexual battery done “by force,” we consider the totality of the circumstances. Jones v. Commonwealth , 219 Va. 983, 986 (1979) ; Bondi v. C ommonwealth , 70 Va. App. 79, 88

- 89 (2019); Wactor v. Commonwealth , 38 Va. App. 375, 382

- 83 (2002).
T he trial court made a finding of fact that the sexual battery occurred by force, stat ing that “because of the manner in which [R.W.] said that [Robinson] grabbed and held and twisted her breasts, the requirement of force is met” and stating that “the evidence indicates that the requisite degree of force was applied.” Considering the totality of the circumstances, and giving the trial judge, as the finder o f fact, the deference required on appeal , the evidence shows that Robinson touched R.W.’s breasts by using force as required by the statute. Robinson “grabbed [R.W.’s ] breasts right behind [her] nipples and twisted as hard as he could .” (Emphasis added.)
He also held on to R.W.’s breasts in that man ner for “[a]bout maybe a minute ” until R.W.
smacked hi s hands sufficiently to finally get him to release her breasts.- 5

-

Robinson relies upon this Court’s decisions in Woodard v. Commonwealth , 27 Va. App. 405 (1998) , and Johnson v. Commonwealth , 5 Va. App. 529 (1988) , in arguing that his conviction should be reversed.
In Woodard , the victim found Woodard standing in the doorway of her home. Woodard , 27 Va. App. at 407. Woodard asked the victim to go out with him, and after she refused, he “squeezed her breasts, grabbed her between her legs, and departed.” Id. The trial court found that the sexual abuse had been accomplished by intimidation

– not by force or threat. Id. at 408. The trial court then convicte d Woodard of sexual battery in violation of Code § 18.2

- 67.4. On appeal, this Court’s analysis was confined to whether the sexual abuse had occurred by intimidation because this Court was bound by the trial court’s explicit factual finding that
W oodard had not used force to commit the s exual battery. The Court reversed the conviction, finding that the touching “was accomplished by surprise, not by intimidation.” Id. at 410. In contrast to the situation in Woodard , the trial court in the case no w before us found Robinson guilty because he used force to accomplish the sexual abuse. Therefore, this Court’s decision in
Woodard is not persuasive regarding the outcome of this case.
In Johnson , the evidence showed that Johnson positioned himself on a bed behind the victim, a fourteen

- year - old boy , who was already lying in the bed. Johnson then put his arm around the victim to hold him very close to him and touched and fondled the victim’s genitalia
and buttocks. 2 Johnson , 5 Va. App. at 531. When the victim attempted to get up, Johnson “pushed [him] back down.” Id. The victim then got up again, this time evading Johnson’s

2 The record in Johnson shows t hat the victim testified that Johnson “stuck his hand down” inside the victim’s pants when Johnson touched him. Th e victim also testified that during the three

- to five

- minu te period that Johnson was holding him , Johnson thrust his hips against the victim ’s body “close to ten” times

.- 6

-

attempt to grab him, went to the bathroom, and quickly left the house. Id. In that case, as in the one currently before us, the issue was whether the touching occurred “by force.” 3
While the facts in Johnson are distinguishable from the facts in this case ( as noted in the panel dissent in Robinson ) , the Court now sits en banc and , unlike the panel majority or dissent, is able to reconsider the holding in Johnson . Code § 17.1

- 402 . “When the language of a statute is plain and unambiguous, we are bound by the plain meaning of that statutory language.” Jones v. Commonwealth , 296 Va . 412, 415 (2018) (quoting Alston v. Commonwealth , 274 Va. 759, 769 (2007)). It is clear to us, in considering the plain language of the statute (and the facts of Johnson , as noted in the Court’s opinion) , that Johnson was wrongly decided. N ow sitting en banc , we overrule it. The elements of the statute were clearly met in that case

. First, Johnson had touched the genitalia and buttocks of the victim to sexually arouse or gratify himself , satisfying the requirement in Code § 18.2

- 67.3 for sexual abuse , as defined in Code § 18.2

- 67.10. Second, the facts make clear that the touching was accomplished against the will of the
comp laining witness as th e victim twice got up to try to get away from Johnson . Finally, the element of force was met. The evidence showed that Johnson positioned himself on the bed behind the victim , and the victim testified that “[Johnson] woke me up and was holding me real close to him ” as Johnson fondled the boy’s genitals. Johnson , 5 Va. App. at 531 (emphasis added).

3 Johnson was convicted of aggravated sexual battery (as opposed to sexual battery) under Code § 18.2

- 67.3 because of the victim’s young age. (Code § 18.2

- 67.3 has since been amended, but not in a way that affects our analy sis.) In addition, t he relevant part of the statute dealing with force under which Johnson was convicted is essentially the same as the relevant part of the statute dealing with force under which Robinson was convicted. Both statutes provide that the sex ual abuse be performed “against the will of the compla ining witness, by force . . . .” Therefore, t he “force” requirement in Johnson is the same as the “force” requirement contained in Code § 18.2

- 67.4 and at issue in this appeal.- 7

-

Considering the totality of the circumstances, including Johnson’s lying down by the
victim on the bed and pulling the victim “real close to him” at the time of the touching of the victim’s genitals , we conclude that the sexual abuse performed against the will of the complaining witness was accomplished by force . While we are rightly hesitant to overturn previous decisions of this Court, there are occasio ns where a wrongly decided case providing erroneous precedent must be overturned . T he opinion of this Court in Joh nson misinterpreted the plain language of the statute , failed to apply the appropriate appellate standard of review giving due deference to the fact finder, and incorrectly found on appeal a lack of force despite the very facts showing force cited in the C ourt’s opinion. Similarly, c onsidering the facts of the case now before us in light of the statutory element of force in Code § 18.2

- 67.4, and g iven the totality of the circumstances here

– inc luding Robinson’s twisting of the breasts “as hard as he could” and the duration of it

– we certainly cannot conclude that no rational fact finder could have found Robinson guilty of sexual battery.
III. C ONCLUSION W e hold that a rational fact finder could conclude that Robinson accomplish ed the touching “by force” b ecause not only did he touch or grab the victim’s breasts but he also

“ twisted as hard as he could ”

– and held on to her in that manner for about a minute, according to the victim’s sister, who was standing stu nned next to her. Furthermore, it is undisput ed on appeal that this battery occurred against the will of the victim

– and that the touching satisfied the statutory requirement of sexual abuse, as defined in Code § 18.2

- 67.10. In short, considering the totality of the circumstances, we simply cannot sa y that no rational fact finder c ould have found Robinson guilty of sexual battery beyo nd a reasonable doubt. For all of these reason s, we affirm Robinson’s conviction for sexual battery in violation of Code § 18.2

- 67.4. Affirmed.- 8

-

O’Brien, J. with whom Humphreys and Malveaux, JJ. , join, dissenting. I agree with the majority that the sole issue in this appeal is whether the evidence established that the act was committed “by force” as required by Code § 18.2

- 67.4(A)(i). There is n o question that appellant “intentionally touch[ed]” clothing co vering the complaining witness’ “intimate parts,” her breasts, “with the intent to sexually moles t, arouse, or gratify.” Code § 18.2

- 67.10(2);
18.2

- 67.10(6)(a). These actions constitute “sexu al abuse.” Id. There is also no question that appellant committed sexual abuse “against the will of the complaining witness.” Code § 18.2

- 67.4(A)(i). However, for non

- consensual touching to be elevated from assault and battery to sexual battery, the se xual abuse must be accomplished “by force, threat, intimidation, or ruse.” Id. Because I cannot find that appellant’s actions, although reprehensible and offensive, demonstrated that he accomplished the sexual abuse by force, I respectfully dissent.
Thi s Court initially addressed the degree of force necessary to support a sexual battery conviction in Johnson v. Commonwealth , 5 Va. App. 529 (1988). We stated that “[s]ome force other than merely that force required to accomplish the unlawful touching” is required. Id. at 534. “[U]nless some force is used to overcome the will of the complaining witness , the unlawful touching constitutes common law assault and battery.” Id. (emphasis added). In reversing Johnson , the majority does not repudiate the requi rement that the sexual abuse must be accomplished by force or that a defendant must employ some force beyond that required to accomplish the unlawful touching. Rather, it finds that evidence of the teenage victim waking to find the defendant “holding [the victim] real close to him” as the defendant fondled the victim’s genitals was sufficient to establish the necessary force. Id. at 531. 4

4 Overruling Johnson to find the facts sufficient to establish that the crime was committed “by force” reduces the word “force” as used in the statute to redundant surplusage. Taken to its logical extension, therefore, any non

- consensual touching of an intimate body part wou ld automatically constitute sufficient force to overcome a victim’s will. If the General Assembly intended that every act of sexual abuse would establish a sexual battery, it would not have- 9

-

Here, however, the restraint employed by appellant was inherent in the act itself; it was not used to overcome the wil l of the complaining witness to accomplish the non

- consensual touching. The majority finds that testimony from the complaining witness’ sister that appellant “twisted [the complaining witness’ breasts] as hard as he could” for “about maybe a minute” was s ufficient to prove that he used force to accomplish the sexual abuse. 5 However, there was no evidence that appellant overcame her will besides the unlawful act of grabbing and twisting her breasts. For example, appellant did not hold the complaining witn ess so that he could accomplish the touching, as in Johnson . The duration and intensity of appellant’s sexual abuse under Code § 18.2

- 67. 10(6)(a) is not evidence that he first used force to overcome her will to accomplish the act as required by Code § 18. 2

- 67.4(A)(i). Clearly , appellant’s actions were aggressive and non

- consensual; the complaining witness testified that she “smacked” his hands away. However, the inherent violence of the act does not, of itself, establish that it was committed “by force.” Evidence that appellant acted without warning or provocation cannot satisfy the “force” element of sexual battery. See Woodard v. Commonwealth , 27 Va. App. 405, 410 (1998). In Woodard , the victim entered her apartment and found the defendant inside, uninvited. Id

. at 407. After the victim told Woodard that she did not want to date him, he “squeezed her breasts, grabbed her between her legs, and departed.” Id. On these facts, the tr ial court found that the sexual abuse

required the additional element of “by force, threat , intimidatio n , or ruse .” Code § 18.2

- 67.4(A)(i). We decided Johnson thirty

- one years ago. Had the General Assembly disagreed with our interpretation of its legislative intent regarding Code § 18.2

- 67.4(A)(i), it certainly had the opportunity to correct us. See Bar son v. Commonwealth , 284 Va. 67, 74 (2012) ( stating that the General Assembly is presumed to be aware of appellate decisions and “[i]ts acquiescence is deemed to be approval ”).

5 We note that the complaining witness did not testify concerning the length o f the incident, saying only that she “smacked [appellant’s] hands away” and he then “smacked her bottom.” Likewise, the testimony about appellant’s prior non

- consensual touching and statements he made to the complaining witness are irrelevant to the issue of whether he accomplished the May 23 sexual abuse by force.- 10

-

was not accomplished by force or threat. Id. at 408. However, it did find that the defendant’s presence in the apartment intimidated the victim to the extent necessary to establish sexual battery. Id

. In Woodard , w e reversed the conviction because when the defendant “simply grabbed her abruptly,” that action did not constitute intimidation. Id. at 410. Intimidation requires that a victim be put in “fear of bodily harm by [the assailant] exercising such domination and control of her as to overcome her mind and overbear her will.” Id. (quoting Clark v. Commonwealth , 12 Va. App. 1163, 1165 (1991)). Noting that the victim “had time neither to reflect upon [the defendant’s] conduct, nor to submit,” we held that “[w]hi le the touching was patently non

- consensual and outrageously offensive, it was accomplished by surprise, not by intimidation.” Id. Although the issue in the case before us is “force” as opposed to “intimidation,” a similar analysis applies. Sexual battery under Code § 18.2

- 67.4(A)(i), whether achieved by force or intimidation, requires the defendant to overcome the victim’s will thro ugh conduct that is more than mere surprise. See Woodard , 27 Va. App. at 410. Here, although the evidence demonstrated that appellant accomplished the battery “by surprise,” it was insufficient to prove he committed sexual abuse by force. See Wilson v. Commonwealth , No. 2636

- 96

- 2, at *1 ( Va. Ct. App. Nov. 4, 1997) (finding insufficient evidence of force where the defendant came up behind the victim and grabbed her buttocks “with such force that she had to step forward to maintain her balance” because the act was accomplished by surprise). 6 For these reasons, the evidence and inferences even considered in the light most favorable to the Commonwealth are insufficient to prove that appellant accomplished the sexual abuse by force.

6 Although not binding precedent, unpublished opinions can be cited and considered for their persuasive value. Rule 5A:1(f). See Otey v. Commonwealth , 61 Va. App. 346, 350 n.3 (2012).- 11

-

Therefore, I must respectf ully dissent and would remand the case for a trial on assault and battery, if the Commonwealth is so advised.

# VIRGINIA: In the Court of Appe als of Virginia on Tuesday 

### the 12th 

### day of February, 2019

. Johnathan Reeves Robinson, Appellant, against Record No. 1679-17-2 Circuit Court No. CR17000069-00 Commonwealth of Vir ginia, Appellee.
Upon a Petition for Rehearing En Banc
Before Chief Judge Decker, Judges Humphreys, Petty, Beales, Huff, Chafin, O’Brien, Ru ssell, AtLee and Malveaux
On January 29, 2019 came the appellee, by the Attorney General of Virginia, and filed a petition requesting that the Court set as ide the judgment rendered herei n on January 15, 2019, and grant a rehearing en banc on the issue(s) raised in the petition. On consideration whereof and pursu ant to Rule 5A:35 of the Rul es of the Supreme Court of Virginia, the petition for rehearing en banc is granted and the appeal of t hose issues is reinstated on the docket of this Court. The mandate previously e ntered herein is stayed pending the decision of the Court en banc

. The parties shall file briefs in compliance with the schedule set forth in Rule 5A:35(b). The appellant shall attach as an addendum t o the opening brief upon rehearing en banc a copy of the opinion previously rendered by the Court in this ma tter. An electronic version of each brief shall be filed with the Court and served on opposing counsel. In a ddition, four printed copies o f each brief shall be filed.-2- It is further ordered that the appellee shall fi le an electroni c version and four additional copies of the appendix previously filed in this case. 1 A Copy,
Teste: Cynthia L. McCoy, Clerk original order signed by a deputy clerk of the By: Court of Appeals of Virginia at the direction of the Court Deputy Clerk

1 The guidelines for filing electronic briefs and appendices ca n be found at www.courts.state.va.us/online/ vaces/resources/guidelines.pdf.COURT OF APPEALS OF VIRGINIA
Present: Judges Beales , O’Brien and Malveaux Argued at Richmond, Virginia

JOHNATHAN REEVES ROBINSON MEMORANDUM OPINION * BY v. Record No . 1679-17-2 JUDGE MAR Y GRACE O’BRIEN J ANUARY 15, 2019 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF AMELIA COUNTY Paul W. Cella, Judge Timothy A. Hennigan (The Nguyen L aw Firm, PLC, on brief), for appellant. Donald E. Jeffrey, III, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Johnathan Reeves Robinson (“appel lant”) was convicted in a ben ch trial of sexual battery by force, in violation of Code § 1 8.2-67.4(A)(i). On appeal, he a rgues the evidence f ailed to establish “that the alleged touching was accomplished by the use of force sufficient to overc ome the victim’s will.” We agree and reverse appellant’s conviction. BACKGROUND In April and May of 2017, R.W. 1 and her husband resided with appellant. R.W. testified that on May 23, 2017, s he and her sister returned to the reside nce and knocked on the front door, which was locked. Appellant ans wered and told R.W. that she wo ke him up. R.W. apologized, and as she entered the residence, appellant stood in front of her a nd “grabbed [her] br easts right behind

* Pursuant to Code § 17.1-413, th is opinion is not designated fo r publication.

1 We refer to the complaining witn ess by her initials to maintai n her privacy.UNPUBLISHED- 2 - [her] nipples and twisted as hard as he could.” R.W. stated th at she “smacked his hands away” and appellant then “smacked [her] bottom.” R.W.’s sister testified that she observed appellant’s action a nd “couldn’t believe it happened.” She stated that wh en appellant grabbed her sister’s breasts, R.W. told “him to get off of her,” and he did s o “about maybe a minute later.” R.W. testified that appellant also touched her without consent on several other occasions during her stay at the residenc e. Shortly after the May 23 inc ident, R.W. and her husband moved out, and she filed a criminal complaint against appellant. The court denied appellant’s mo tion to strike and found suffic ient evidence of sexual battery based on the May 23 incident. Th e court stated that “because o f the manner in which [R.W.] said that [appellant] grabbed and he ld and twisted her breasts, the requirement of force [had been] met,” and convicted appellant of sexual battery. DISCUSSION When reviewing a challenge to the sufficiency of the evidence, this Court views the evidence in the light most favorable to the Commonwealth, the p revailing party at tr ial. Riner v. Commonwealth, 268 Va. 296, 330 (2 004). We will not set aside t he court’s judgment unless the decision is plainly wrong or without evidence to support it. C ommonwealth v. Anderson, 278 Va. 419, 425 (2009). Code § 18.2-67.4(A)(i) provides that “[a]n accused is guilty o f sexual battery if he sexually abuses . . . the complaining wit ness against the will of the co mplaining witn ess, by force, threat, intimidation, or ruse.” “Sexual a buse” is defined, in part, as when “[t]he accused intentionally touches the complaining witness’s intimate parts or material di rectly covering such intimate parts.” Code § 18.2-67.10 (6)(a). “Intimate parts ” include the breast. Code § 18.2-67.10(2).- 3 - It is undisputed that appellant sexually abused R.W. as that t erm is defined in Code § 18.2-67.10. Ho wever, appellant asserts that the Commonwealth failed to prove that the sexual abuse was accomplishe d by “force” as requir ed by Code § 18.2-67 .4(A)(i). The Commonwealth responds that the testimony that appellant “twisted [her breast s] as hard as he could” for “about maybe a minute” was su fficient to establis h that element of the offense. We addressed the degree of force necessary to support a sexual battery conviction in Johnson v. Commonwealth, 5 Va. A pp. 529 (1988). We stated that “[s]ome force other than merely that force required to accomplish the unlawful touching” is req uired. Id. at 534. “[U]nless some force is used to overcome the will of the complaining wi tness, the unlawful touching constitutes common law assault and battery.” Id. (emphasis added). See Ha ynes v. Commonwealth, No. 1778-98-3, at *2 (Va. Ct. App. Oct. 5, 1999) (defendant con ceded the evidence was sufficient to prove force where he held victim’s hands behind her back whi le touching her vagina). 2 Evidence that appellant acted w ithout warning or provocation c annot satisfy the “force” element of sexual battery. See Woodard v. Commo nwealth, 27 Va. App. 405 (1998). In Woodard, the victim entered her apartment and found the defendant inside , uninvited. Id. at 407. After the victim told Woodard that she did not want to date him, he “sque ezed her breasts, grabbed her between her legs, and departed.” Id. The court found that alt hough the battery was not accomplished by forc e or threat, the defendant’s presence in th e apartment intimidated the victim to the extent necessary to convict him of sexual battery. Id. at 408. We reversed the conviction becau se when the defendant “simply grabbed her abruptly,” that action did not constitute intimidation, which requires “fear of bodily harm.” Id. at 410 (citing Clark v. Commonwealth, 12 Va. App. 1163, 116 5 (1991)). Noting that t he victim “had time neither to

2 “Although not bindi ng precedent, unpublished opinions can be c ited and considered for their persuasive value.” Otey v. Commonwealth, 61 Va. App. 346 , 350 n.3 (2012) . See also Rule 5A:1(f).- 4 - reflect upon [the defen dant’s] conduc t, nor to submit,” we held that “[w]hile the touching was patently non-consensual and outr ageously offensive, it was acco mplished by surprise, not by intimidation.” Id. Although the issue in the case before us is “force” as opposed to “intimidation,” a similar analysis applies; sexual battery, under Code § 18.2-67.4(A)(i), whether achieved by force or intimidation, requires the defe ndant to overcome the victim’s w ill. Here, while the evidence demonstrated that appellant accom plished the battery “by surpri se,” it was insufficient to prove he committed sexual abuse by force. The restra int employed by app ellant was inherent in the act itself; it was not used to ov ercome her will to accomplish the non-cons ensual touching. The Commonwealth asserts that the element of force can be esta blished by the violent nature of the act and the fact t hat appellant did not release R .W. for “about maybe a minute,” citing Clark v. Commonwealth, 30 Va. App . 406 (1999), and Kanczuzewski v. Commonwealth, No. 2153-07-2 (Va. Ct . App. Mar. 10, 2009) . Both cases address ed sexual offenses requiring proof that a defendant’s act is “acco mplished against t he will of the complaining witness, by force, threat or intimidation.” Clark, 30 Va. App. at 409 (aggravated sexual battery, in violation of Code § 18.2-67.3); Kanczuzewski, No. 2 153-07-2, at *3 (object sexual penetration, in vi olation of Code § 18.2-67.2). However, the Commonwealth’s relia nce on those cases is misplac ed. In both, we affirmed convictions based on evidence th at the defendants’ conduct cons isted of an act of force separately identifiable from the unlawful t ouching. In Clark, the defenda nt’s act of lying on top of a victim was more force than required to accomplish the unlawful act of touching her intimate parts. 30 Va. App. at 410. Similarly, in K anczuzewski, the defendant’s a ct of “grabbing” the victim prior to a sexual assault was “more than th e force required to accomplish the unlawful touching.” No. 2153-07-2, at *4. We acknowledge d that the defendant “proceede d on” groping his victim “for- 5 - about one or two minutes” after she told him it hurt and asked him to stop, which “reinforce[d] the trial court’s finding that force was used.” Id. at *1, *4. He re, however, any dur ational evidence served only to demonst rate the non-consensua l touching occurred . See id. at *4. T herefore, even if we consider the evidence and in ferences in the light most favor able to the Commonwealth, the totality of facts cannot establish the force necessary to susta in appellant’s conviction for sexual battery. Accordingly, we reverse the conviction and remand the case for further proceedings, if the Commonwealth be so advised. Reversed and remanded.- 6 - Beales, J., dissenting. The majority, relying primarily on Johnson v. Commonwealth, 5 V a. App. 529 (1988), and Woodard v. Commonwealth , 27 Va. App. 405 (1998), holds that “th e totality of facts cannot establish the force necessary to sustain appellant’s conviction for sexual battery.” I respectfully disagree. “Viewing the evidence in the lig ht most favorable to the Common wealth, as we must since it was the prevailing party in the trial court,” Riner v. Commo nwealth, 268 Va. 296, 330 (2004), the evidence shows that, as R.W. was entering the house where she a nd her husband lived with appellant Robinson, a ppellant stood in fro nt of her at the door way and “grabbed [her] breasts right behind [her] nipples and twisted as hard as he could.” 3 The victim, R.W., stated that she “smacked his hands away” and appellant the n “smacked [her] bottom.” R.W .’s sister testified that she observed appellant’s action and t hat, when appellant grabbed he r sister’s breasts, R.W. told “him to get off of her.” Her sister te stified that appellant did not d o so, however, un til “about maybe a minute later.” Considering the totality of the circumstances, and giving the t rial judge, as the finder of fact, the deference required, the evidence shows that appellant used more force than “merely that force required to accomplish the unlawfu l touching . . . .” Johnson, 5 Va. App. at 534. In Johnson, the evidence showed that J ohnson positioned hims elf behind the vict im, who was lying in a bed, and “touched” the victim’s genitalia and buttocks. This Court reve rsed Johnson’s con viction, finding “[s]ome force other than merely that force required to accompli sh the unlawful touching” is required. Id. In the case curre ntly before us, however, the e vidence shows the action was more than a mere touching – because appellant “grabbed [her] breasts behi nd [her] nipples and twisted as hard

3 Testimony at trial s hows that R.W. and her husband lived with appellant and his girlfriend in a house belonging to appellant’s girlfriend. The evidence a lso shows that the incident at issue in this case is not the first time that appellant touched R.W. wit hout her consent.- 7 - as he could .” (Emphasis added.) The victim then smacked appellant’s hand s sufficiently to finally get them off of her breasts. Johnson also states that “[w]her e the complaining witness is at least thirteen years old, unless some force is used to overcome the will of the complaini ng witness, the unlawful touching constitutes common law assault an d battery.” Joh nson, 5 Va. Ap p. at 534. This requirement for the necessary force is met in the facts of this case. The victim, by smacking away app ellant’s hands and telling him to “get off of her” not only demonstr ated her lack of consent, which was not in dispute, but also conveyed that he was us ing such force that she could n ot immediately break away and that her will was overcome. The fact that appellant “grabbed [her] breasts right behind [ her] nipples and twisted as hard as he could” an d then finally let go “about may be a minute later” is enough for a rational fact finder to conclude that he used force beyond that simply necessary to touch her breasts. Indeed, the trial court found that, “because of the manner in w hich she said that he grabbed and held and twisted her breasts, the requirement of force is met.” (Emphasis adde d.) The majority discusses Woodard and notes that, in that case, th e trial court found the defendant’s actions did not cons titute force or threat, but ins tead constituted in timidation under Code § 18.2-67.4( A). Thus, on ap peal, this Court’s inquiry in Woodard, where this Court reversed the conviction, was limited to “wh ether Woodard sexually abused [the victim] by intimidation.” Woodard, 27 Va. App. at 409. In contrast to the situation in W oodard, the trial court in this case found appellant guilty because he used the necessary force – as opposed to intimidation – to accomplish the sexual abuse. Ther efore, this Court’s decision in Woodard does not control the outcome of this case. Considering the totality of the circumstances, I would hold tha t a rational fact finder could conclude that appellant used mor e force than that necessary mer ely to accomplish the touching because not only did he touch or g rab the victim’s breasts but he also “twisted as hard as he could” –- 8 - and held on to her in that manner for about a minute, according to the victim’s sister, who was standing stunned next to her. In sh ort, given the totality of the circumstances, I simply cannot say that no rational fact finder woul d have found the appellant gui lty of sexual battery beyond a reasonable doubt. Consequently, I would a ffirm the circuit c ourt. For these reas ons, I respectfully dissent.