COURT OF APPEALS OF VIRGINIA

Present: Judg es Willis, Bray and Humphreys Argued at Rich mond, Virginia

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

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY William R. Sh elton, Judge Ernest P. Gates, Jr . (Gates & Alexander, P.C., on brief), for appellant. Leah A. Darron, Assi stant Attorney General (Jerry W. Kilg ore, Attorney General, on brief), for appellee.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Patrick Noel Creed (defendant) was convicted in a bench trial of two counts of aggravated sexual battery of a mi nor, violations of Code § 18.2-67. 3. On appeal, he challe nges the sufficiency of the evidence to support the convic tions. Finding no error, we affirm the trial court. The parties ar e fully conversa nt with the re cord, and this memorandum opinion re cites only those fa cts necess ary to a disposition of the appeal.I. In reviewing the suff iciency of the eviden ce, we consider the record, "in the li ght most favorable to th e Commonweal th, giving it all reasonable inferences fairly deducibl e therefrom." Watkins v. Commonwealth , 26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998) (citation omit ted). The credibil ity of the witnes ses, the weight accorded testimony, an d the inferences drawn from proven facts are matters to be de termined by the fact finder. Long v. Commonwealth , 8 Va. App. 194, 199, 379 S.E.2d 47 3, 476 (1989). The judgment of the trial court will not be di sturbed unless plainly wrong or unsuppor ted by the evidence. See Code § 8.01-680. Viewed accordingly, the instan t record disclose s that, during the summer of 19 98, C.B., age nine , was enrolled in a karate class together with "about ten" other students, includ ing her sister, stepfather and defendan t, a family "friend. " "[O]nce or twice each week," when "eve ryone would leav e [class] to take . . . a bathroom or a wa ter break," C.B. and defendant "wou ld start . . . wrestling, but . . . it would turn into not wrestling" when defendant "touch ed [her] places th at [she] really didn't like him to touch." C.B. desc ribed such "places" as "[w]here a bikini bathing suit would cove r up" and recall ed defendant "would . . . sort of grab them or rub them." When C.B. aske d defendant "to stop," "he just got this little flare in his eye" and "kept on."

- 2 -"About the second time [defendant] di d it," C.B. st opped attending the karate classes. Defendant subs equently visited C.B.'s home and "told [her] that if [she] ca me back to [kar ate], he would st op." However, while C.B. and defend ant were "in [her] sister's bedroom," defendant again to uched 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 hi s eye" and "kept goin g." Asked by the prosecutor, "Can you show the Court by to uching 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 co ncert" at a lo cal school, she and a friend were "walking around th e school," when defendant, "dre ssed up in a karate suit," "approac hed." The three began "playing around like [they] were karate peop le," "kind of acting." However, after "10 minutes, 20 minu tes," defendant "p icked [A.T.] up," "lifted [her] up like a baby," "sta rted feeling [her] ches t," and "took" her, "screaming," "kicki ng," and "squirming ," "into the boys' bathroom." Once inside, defend ant "touch[ed]" th e 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 "dropp ed" A.T. and "went into on e of the stal ls." A.T. reported the incident to the police th e 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 an d, occasionally, ate dinner at her home, either before or af ter class. He acknowledged "wrestling" wi th C.B., explaining "[i]n a lot of karate, you grab the person and wrap th e other person up with you, " but denied "intentionally tr[ying] to touch [h er] body." Addressing the testimony of A.T., defendant recalled an encounter with her at Manchester Middle School, "where the [karate] school is he ld," on March 18, 1999. He claimed A.T. approached him, "asked [him] abou t karate" and they "started doing a bunch of moves," "h orsing around." De fendant admi tted he "picked [A.T.] up, slung her arou nd, and put her in a trash can" but insisted "that was it," de nying the allege d misconduct. At the conclusion of all the evidence, defendant re newed his motion to strike , arguing, "even without [defendant's ] testimony that it didn't occur . . . it ce rtainly was not in tentional," and "[t]he Commonwealth ha s not proved the underl ying sexual abuse."

- 4 -Defendant again ch aracterized the alleged touching , as "indecent liberties . . . or sexual battery," not aggravated sexu al battery. The court overru led the motion and conv icted defend ant 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 woul d stop," but repeated the misconduct at he r home, again ig noring the chil d'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. Co mmonwealth , 18 Va. App. 84, 90, 441 S.E.2d 709, 713 (1994) ("[C]hil d's testimony alone, if believed by the [fact finder], [i s] sufficient to support [the instant] conviction[s ], even in the abse nce of corroborating physical or te stimonial eviden ce." (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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