COURT OF APPEALS OF VIRGINIA
Present: Judges Alst on, O’Brien and AtLee Argued at Fredericksburg, Virginia

JOSEPH FRANCIS ROSANA MEMORANDUM OPINION * BY v. Record No . 1656-17-4 JUDGE MAR Y GRACE O’BRIEN OCTOBER 30, 2018 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT C OURT OF LOUDOUN COUNTY Stephen E. Sincavage, Judge Jonathan P. Sheldon (Lauren L eBourgeois; Sheldon, Flood & Haywood, PLC, on brief s), for appellant. Elizabeth Kiernan Fitzgerald, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
A jury convicted Joseph Francis Rosana (“appellant”) of commit ting sexual battery against more than one complain ing witness, in viola tion of Code § 18.2- 67.4(A)(ii). On appeal, appellant contends that the Commonwealth’s evidence was insufficient to p rove certain elements of the offense. He asserts the follo wing assignments of error:
1. The trial court erred by denyi ng Dr. Rosana’s renewed motion to strike and ruling there was sufficient evidence of force und er Virginia Code § 18.2-67.10(6)(b) to constitute sexual abuse of complaining witness [E.L.] 1 because there wa s no evidence [E.L.’s] will was overcome or t hat more force was used than necessary to accomp lish the touching.
2. The trial court erred by denying Dr. Rosana’s motion to strike the evidence on the issue of w hether there was sufficient evidence of the specific intent to sexually arous e, molest, or gratify under Virginia Code § 18.2-67.10(6) as applied to complaining witnesses [J.E.] and [E.L.].

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

1 We identify the victims by in itials to protect their privacy.UNPUBLISHED- 2 - BACKGROUND We review the evidence in the light most favorable to the Comm onwealth, the prevailing party at trial. Brown v. Commonw ealth, 278 Va. 5 23, 527, 685 S .E.2d 43, 45 (2009). The Commonwealth’s evidence include d testimony from three women reg arding conduct b y appellant, a licensed optometrist, d uring eye exams in 2 016. On April 4, 20 16, appellant performed an eye exam on J.E. at a Visionworks offi ce in Leesburg, Virginia. Fo llowing a glaucoma t est, J.E. stood facing the machine. Appellant c ame up behind her, “placed his hand on [her] left flank and down onto [her] left buttock ” for a few seconds a nd then turned her to face the eye chart. J.E. testified that although appellant’s contact made her uncomfortable, she did no t say anything because she thought the touching might have been a mistake. Some months later, aft er she saw a social media post containing a police report about appellant’s interaction with o ther women, she contacted the investigating detective to report the incident. On May 11, 2016, appellant condu cted an eye exam on E.L. at Vi sionworks. As E.L. was sitting with the lens apparatus in front of her face, appellant moved his rolling chair until his inner left thigh leaned against the out side of E.L.’s right leg. He continued movi ng forward until E.L.’s knee was touching his groin and remained in that position durin g the entire six-minute eye exam. Appellant occasionally adjusted h is chair during the exam, whic h caused his leg to rub against E.L.’s leg. E.L., who was forty -six, had been receiving eye ex ams since she was sixteen and testified that she ha d never experi enced a doctor position hims elf in that manner . E.L. did not immediately report the incident b ecause she felt “ very uncomfor table” and “wanted to get out of there really quick.” E.L. contacted the police after her husba nd saw a newspaper article about appellant. D.E. received an eye exam from appellant on or about August 24 , 2016. As D.E. was standing and looking i nto an examination apparatus in front of her eyes, appellant s tood behind her.- 3 - D.E. felt him “thrust” his pelvi s, touching her one time. Appe llant walked around to face D.E. and, while he adjusted the lenses on t he apparatus, she felt him pre ss his palm, facing up, against her vaginal area. D.E. looked down and saw appellant’s hand pressi ng her vagina on the outside of her pants. She testified that she did not say anything because she could not believe “this [was] really happening.” Appellant directed D.E. to sit in a chair for another exam, du ring which she felt appellant “brush” her right breast. When she recoiled, appellant asked h er why she moved, and she responded that she felt him touc h her inappropriately. Appella nt told D.E. that he had not touched her and she was just feeling th e air conditioning. D.E. then s at with her arms across herself to “block” herself from appellant. She testified that appellant t old her she was beautiful and, while fitting lenses on her e yes, he thrust his pelvis into her again . Immediately upon leaving the office, D.E. reported the incident to the police and to the Visionworks corporate office. At trial, appellant presented testimony f rom Dr. Vivian Nguyen , an expert in the field of optometry and eye exams. Dr. Ngu yen identified the equipment d isplayed in photographs of the Visionworks office, and she expla ined the purpose and operation of each machine. She testified that it was “impossible” for an optom etrist’s groin to be touching a patient’s knee for an extended period of time during a routine eye exam . She stated, “There is no ne ed to be touching the patient whatsoever, at any point; and i f we do, we would advise the pat ient what we’re about to do.” Appellant testified that he h ad conducted between 25,000 and 3 0,000 eye exams during the ten years he had been practicing optometry. He described a nor mal eye exam and explained his physical positioning d uring each step of the process. Appellan t agreed that during an eye exam, there was no reason for physical c ontact as described by the wi tnesses, and he denied ever touching the women inappropriately.- 4 - ANALYSIS Appellant challenges the court’s denial of his motions to stri ke the Commonwealth’s evidence. He argues that the C ommonwealth failed to prove the elements of intent with respect to J.E. and E.L and force with respe ct to E.L., as required by Cod e § 18.2-67.10(6)(b). A. Sufficiency of the Evidence to Prove Intent Appellant argues that in the cases involving J.E. and E.L., th e Commonwealth did not establish the requis ite intent to prove sexual battery. Code § 18.2-67.4(A)(ii) provides, in relevant part, that [a]n accused is guilty of sexual battery if he sexually abuses, as defined in Code § 18.2- 67.10, . . . (ii) wit hin a two-year peri od, more than one complaining witness . . . intentionally and without th e consent of the com plaining witness. Code § 18.2-67.10 (6), in turn, defines “sexual abuse” in releva nt part, as [a]n act committed with the intent to sexually molest, arouse, or gratify any person, where: a) The accused intentionally touches the complaining witness’s intimate parts or material directly covering such intimate parts; [or] b) The accused forces the comp laining witness to touch the accused’s . . . intimate parts or material directly covering such intimate parts[.] Appellant contends that the evid ence was insufficient to prove that he had the intent to “sexually molest, arouse, or gratify” whe n he touched J.E. and E.L. Appellant’s intent is a factual issue for determination by the jury. In reviewing the evidence, “the question is whether ‘any r ational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. ’” Commonwealth v. McNeal, 282 Va. 16, 20, 71 0 S.E.2d 733, 735 (2011) (quoting Jackson v. Vir ginia, 443 U.S. 307, 319 (197 9)). “Whether the evidence adduced is sufficient to prove each of [the] elements is a fact ual finding, which will not be set aside- 5 - on appeal unless it is plainly w rong.” Lawlor v. Commonwealth, 285 Va. 187, 223-24, 738 S.E.2d 847, 868 (2013). This Court does not substitute i ts judgment f or that of the fact-finder. Id. at 224, 728 S.E.2d at 868. “Intent is the purpose formed in a person’s mind which may, an d often must, be inferred from the facts and circumstances in a particular case. The sta te of mind of an alleged offender may be shown by his acts and conduct. ” Walker v. Commonwealth, 12 Va. App. 438, 4 45, 404 S.E.2d 394, 397 (1991) (quot ing David v. Commonwea lth, 2 Va. App. 1, 3 , 340 S.E.2d 576, 577 (1986)). Therefore, intent may “be proven by circumstantial evidence and the reasonable inferences to be drawn from proven facts are within the province of the trier of fact.” Summerlin v. Commonwealth, 37 Va. App. 288, 297, 557 S.E.2d 731, 736 (2002) ( quoting Flemi ng v. Commonwealth, 13 Va. App. 349, 353, 412 S .E.2d 180, 183 (1991)). J.E. testified that appellant t ouched material covering her in timate part and that he did so without her consent. Specifically, J.E. stated that appellant “cupped” her “buttock” during an eye exam. E.L. testified that appellant caused her leg to touch th e material covering his intimate parts. She related that appellant moved in such a way that her knee wa s continuously tou ching his groin during a six-minute eye exam. E .L. also testified that she had never previously experienced this behavior during an eye exam. Appellant denied that he ever touched the women, but the jury was free to disregard his testimony. “[A] fact-finder, having rejected a defendant’s exp lanation as untru e, may draw the reasonable inference that his e xplanation was made falsely in a n effort to conceal his guilt.” Covil v. Commonwealth, 268 Va . 692, 696, 604 S.E .2d 79, 82 (2004). Appellant also argues that even if this contact occurred, it wa s merely accidental or incidental to the eye exam. However, his expert testified uneq uivocally that it was unnecessary for a patient or doctor to make contact with each other’s intimate areas during an eye exam, and she- 6 - stated “there is no need to be t ouching the patient whatsoever, at any point.” Appellant agreed with her assertion in his testimony. The jury reasonably could conc lude from this evidence that because contact with a patient’s or doctor’s intimate areas is unwarran ted during an eye exam, appellant touched J.E. and caused E.L. to touch him for hi s own sexual gr atification. B. Sufficiency of the Evidence to Prove Force For a conviction under Code § 1 8.2-67.4(A)(ii), the Commonwealt h must establish that a defendant sexually abused, as de fined in Code § 18.2-67.10, “wi thin a two-year period, more than one complaining witness . . . intentionally and without the con sent of the complaining witness.” Appellant contends that the Co mmonwealth did not prove he sexua lly abused E.L. because there was no proof that the contact w as accomplished by force, as tha t term is used in Code § 18.2-67.10(6)(b). However, we do not need to reach this issu e. “As an appellate court, we seek t he ‘best and narrowest ground available’ for our decision.” Harvey v. Commonwealt h, 65 Va. App. 280, 2 85 n.2, 777 S.E.2d 23 1, 234 n.2 (2015) (quoting Armstead v. Commonwealth , 56 Va. App. 569, 576, 695 S.E.2d 561, 564 (2010)); see also Luginbyhl v. Commonwealth, 48 Va . App. 58, 64, 62 8 S.E.2d 74, 7 7 (2006) ( en banc ). Assuming without deciding that the court should have granted appellant’s motion to strike E.L.’s testimony, any error in fa iling to do so w as harmless. Code § 18.2-67.4(A)(ii) punishes sexual battery of more than on e person in a two-year period. The Commonwealth present ed evidence that appellant imp roperly touched three women without their consent from Apri l to August 2016. Appellant arg ues that the incident with E.L. did not constitute “sexual abuse” as defined by Code § 18.2-67.10(6 )(b) because it involved E.L.’s touching of clothing covering appellant’s intimate parts and wa s not accomplished by force. However, apart from his argume nt previously addressed in this o pinion that the Commonwealth did not prove his “intent to sexually molest, arouse, or gratify,” appellant does not challenge the- 7 - elements of sexual battery regardi ng J.E. and D.E. Therefore, sufficient evidence supported the jury’s finding that within a t wo-year period appellant sexually abused “more than one complaining witness . . . intent ionally and without the consent of the comp laining witness” as required by Code § 18.2-67.4(A)(ii). Accordingly, we affirm appellant’s conviction for sexual batter y. Affirmed.