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. 

 

* 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 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. 
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." 

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"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. 

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 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." 

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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 

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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. 

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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. 

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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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