COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Senior Judges Cole and Duff 

CHARLES W. SIMMONS 

v. Record No. 0460-94-3 MEMORANDUM OPINION* BY 

 CHIEF JUDGE NORMAN K. MOON 

COMMONWEALTH OF VIRGINIA AUGUST 29, 1995 

FROM THE CIRCUIT COURT OF THE CITY OF SALEM 

G. O. Clemens, Judge 

 Barry M. Tatel (Neil E. McNally; Key and Tatel, P.C., 

 on brief), for appellant. 

 Monica S. McElyea, Assistant Attorney General 

 (James S. Gilmore, III, Attorney General, 

 on brief), for appellee. 

 Charles W. Simmons appeals his conviction for sodomy by or 

with the mouth in violation of Code § 18.2-361. On appeal, 

Simmons contends that the Commonwealth's evidence was 

insufficient to convict him for oral sodomy and that the trial 

court erred when it gave jury instruction number seven. We hold 

that jury instruction number seven was improper because it 

singled out for emphasis a part of the evidence tending to 

establish a pivotal fact in the jury's determination of Simmons's 

guilt or innocence. The instruction was also a misstatement of 

the law. 

 When a trial judge instructs the jury in the law, he or 

she may not "single out for emphasis a part of the 

evidence tending to establish a particular fact." . . . 

The danger of such emphasis is that it gives undue 

prominence by the trial judge to the highlighted 

evidence and may mislead the jury. 

 

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

designated for publication. 
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Terry v. Commonwealth, 5 Va. App. 167, 170, 360 S.E.2d 880, 882 

(1987) (citations omitted); also see Woods v. Commonwealth, 171 

Va. 543, 199 S.E. 465 (1938) (reversible error for a trial judge 

to single out for emphasis a part of the evidence tending to 

establish a particular fact). Furthermore, "[a] statement made 

in the course of a judicial decision is not necessarily proper 

language for a jury instruction." Snyder v. Commonwealth, 220 

Va. 792, 797, 263 S.E.2d 55, 58 (1980); see also Yeager v. 

Commonwealth, 16 Va. App, 761, 766, 433 S.E.2d 248, 251 (1993). 

 In this case, instruction number seven commented on a piece 

of circumstantial evidence tending to establish a key element of 

the offense charged against Simmons. The instruction was taken 

in part from the Model Jury Instructions, but was further based 

on language found in Ryan v. Commonwealth, 219 Va. 439, 444-45, 

247 S.E.2d 698, 702 (1978). The instruction gave undue 

prominence to the duration of the alleged sexual act which was 

but one of many pieces of circumstantial evidence the jury could 

have considered in reaching a verdict. Thus, there existed a 

danger that the jury would be misled because instruction seven 

permitted the jury to base its decision on an inference or 

presumption that duration alone was sufficient to prove 

penetration. 

 In holding as we do, we note that instruction number seven 

was not taken verbatim from the text of Ryan, but more closely 

reflects one of the case's headnotes. Id. at 439, 247 S.E.2d at 

698. Ryan never established that duration alone could, as a 
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matter of law, prove penetration. Rather, the Court's comment 

emphasized "the victim's account of Ryan's protracted assault," 

id. at 444-45, 247 S.E.2d at 702 (emphasis added), from which the 

jury could reasonably infer that penetration occurred. The Court 

noted that, among other pieces of circumstantial evidence, "the 

condition, position, and proximity of the parties . . . may 

afford sufficient evidence of penetration to support a charge of 

sodomy by cunnilingus." Id. (citation omitted). 

 Thus, for purposes of considering the sufficiency of the 

evidence to support penetration the language quoted from Ryan is 

instructive in what legal effect to give to the evidence of the 

duration of the encounter. However, it is not proper for the 

jury to be instructed that duration alone is sufficient to prove 

penetration. 

 Therefore, we reverse Simmons's conviction and remand his 

case for a new trial. 

 Reversed and remanded.