COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Willis and Annunziata 

Argued at Alexandria, Virginia 

JOHN PHILLIP STOUDT 

 MEMORANDUM OPINION* BY 

v. Record Nos. 2386-98-4 JUDGE ROSEMARIE ANNUNZIATA 

 and 2387-98-4 FEBRUARY 15, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF WINCHESTER 

John E. Wetsel, Jr., Judge 

David H. N. Bean for appellant. 

Donald E. Jeffrey, III, Assistant Attorney 

General (Mark L. Earley, Attorney General, 

on brief), for appellee. 

John Phillip Stoudt appeals his conviction of forcible 

sodomy in violation of Code § 18.2-67.1. Stoudt contends that 

the evidence failed to support a conviction of forcible sodomy, 

that the trial court erred in denying his motion to strike the 

Commonwealth's evidence, and that, upon a reversal of his 

conviction, he should be granted a hearing to reinstate his 

probation on prior offenses. Finding the evidence insufficient 

as a matter of law to sustain a conviction of forcible sodomy, 

we reverse the decision of the trial court, and remand for a 

 

 * Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.
hearing on the reinstatement of Stoudt's probation for the prior 

convictions. 

BACKGROUND

On October 2, 1997, Stoudt was working in the basement of 

the Goodwill consignment store in Winchester, Virginia, stocking 

and sorting clothes. Working with him was the 

seventeen-year-old complaining witness in this case, W.B. W.B. 

and Stoudt had not worked together or met previously. No one 

else was working with them in the basement. 

As they worked, Stoudt made a series of sexually explicit 

and suggestive remarks to W.B., and he informed the youth that 

he was homosexual. Stoudt offered to perform oral sex on W.B., 

but W.B. declined. Stoudt was not dissuaded from his advances, 

however, and persisted in seeking W.B.'s consent to a sexual 

encounter. W.B. rebuffed Stoudt's advances, and informed Stoudt 

that he was "straight" and had a girlfriend. W.B. later went to 

the restroom, and Stoudt followed him into it. The restroom was 

a small facility with a single toilet and sink. Stoudt unzipped 

his pants and produced his penis, and attempted to get W.B. to 

touch it. W.B. testified that he felt paralyzed with 

apprehension, and was only able to stand motionless while Stoudt 

exposed himself. Stoudt then refastened his pants, and began to 

touch W.B. on the legs, buttocks, and groin. He reached inside 

W.B.'s pants and exposed W.B.'s penis. Stoudt began to perform 

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fellatio on W.B., and kept his hands at first on W.B.'s legs, 

then on his buttocks. During the incident, Stoudt kneeled as he 

performed fellatio on W.B., and W.B. stood with his back against 

the wall of the restroom. W.B. testified that he was frightened 

during this incident and that it was only when Stoudt grasped 

his buttocks that he felt the paralysis of fear lift 

sufficiently to push Stoudt away. W.B. left the restroom and 

resumed working. The incident in the restroom lasted 

approximately two to three minutes. 

Stoudt followed W.B. back into the work area, where he 

resumed fondling W.B., and kissed him on the neck. W.B. told 

Stoudt he needed to go outside and "get some air." Upon exiting 

the building, W.B. went to the upstairs level and reported to a 

manager that he was unwilling to return to the basement. W.B. 

was so emotionally distraught that he was unable to explain the 

nature of his complaint. The police were ultimately summoned to 

determine the nature of W.B.'s distress, and W.B. reported some 

of the details of Stoudt's behavior. Officer T.A. Rice 

interviewed W.B. and Stoudt and, upon concluding his interview 

with Stoudt, placed him under arrest. 

Stoudt was tried before a jury on April 7, 1998, on a 

charge of forcible sodomy. He was found guilty and sentenced to 

twenty years imprisonment. As a result, his probation on 

previous criminal convictions was revoked, and he was ordered to 

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serve the nine-year sentence on those charges concurrently with 

his sentence for the sodomy conviction. This appeal followed. 

SUFFICIENCY OF EVIDENCE TO PROVE FORCIBLE SODOMY

In addressing whether the evidence is sufficient to sustain 

a conviction, the Court considers the evidence "in the light 

most favorable to the Commonwealth, granting to it all 

reasonable inferences fairly deducible" from it. Welch v. 

Commonwealth, 15 Va. App. 518, 523, 425 S.E.2d 101, 105 (1992). 

A jury's findings of fact will not be disturbed unless plainly 

wrong or without evidence to support them. See Peterson v. 

Commonwealth, 5 Va. App. 389, 401, 363 S.E.2d 440, 448 (1987). 

Inferences to be drawn from proven facts are solely within the 

province of the fact finder. See Stockton v. Commonwealth, 227 

Va. 124, 145, 314 S.E.2d 371, 385, cert. denied, 469 U.S. 873 

(1984). 

Code § 18.2-67.1 defines forcible sodomy as an act of 

sodomy performed upon a victim against that person's will, by 

means of force, threat, or intimidation, or through exploitation 

of the victim's mental incapacity or physical helplessness. The 

Commonwealth conceded at trial that no force or threat was 

exerted in this case. The jury's verdict of guilt was based on 

its finding that Stoudt intimidated W.B.1

 1

 The jury was not instructed on mental incapacity or 

physical helplessness as possible grounds for finding Stoudt 

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In order to prove that a defendant intimidated a victim 

into submitting to a sex act, the evidence must show 1) that the 

defendant caused his victim to fear some bodily harm if he or 

she failed to comply with the defendant, or 2) that, under the 

circumstances, the defendant imposed such a degree of 

psychological or emotional pressure on a vulnerable and 

susceptible victim, as to cause that person to submit to the 

defendant's advances. See Clark v. Commonwealth, 30 Va. App. 

406, 410, 517 S.E.2d 260, 262 (1999) (citing Sutton v. 

Commonwealth, 228 Va. 654, 663, 324 S.E.2d 665, 670 (1985)); see 

also Woodard v. Commonwealth, 27 Va. App. 405, 410, 499 S.E.2d 

557, 559 (1998); Clark v. Commonwealth, 12 Va. App. 1163, 

1165-66, 408 S.E.2d 564, 566 (1991). 

Under either prong of the test for intimidation, the 

evidence in Stoudt's case failed to support his conviction. 

Applying the first prong, we note W.B. testified only that 

Stoudt had made a number of sexually suggestive statements to 

him and that Stoudt followed him around the work area as W.B. 

did his job. Although W.B. repeatedly rebuffed Stoudt's 

advances, W.B. expressed no fear of Stoudt prior to the incident 

in the restroom. Even then, W.B. stated that he felt fearful 

 

guilty. Rather, the court instructed it on "force, threat, or 

intimidation," and during the instructions the court eliminated 

force as a possibility, informing the jury that their decision 

must be based on intimidation or threat. 

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only as the sexual contact was occurring, and he described his 

fear as a feeling that he "wasn't really going to be able to 

tell anybody about it." There is no evidence that the incident 

was the result of fearing bodily injury if he refused to comply. 

The record also fails to support a finding that Stoudt 

applied psychological or emotional pressure to a victim who, 

under the circumstances of the case, was particularly vulnerable 

to psychological domination. W.B. testified that he was 

sexually experienced and that he was confident in his sexual 

orientation. He had not met Stoudt until the day the incident 

occurred, and during the course of the incident he evidenced the 

ability to refuse Stoudt's advances by pushing Stoudt away and 

leaving the restroom and, subsequently, by leaving the basement 

and reporting his distress to his supervisor. On this record we 

cannot conclude that W.B.'s will was overborne by psychological 

or emotional domination. 

We accordingly find that the trial court's denial of 

Stoudt's motion to strike the evidence was error, and we reverse 

Stoudt's conviction for forcible sodomy and remand to the trial 

court for further proceedings if the Commonwealth be so advised. 

REHEARING FOR REINSTATEMENT OF PROBATIONARY STATUS

Having found as a matter of law that the evidence offered 

against Stoudt failed to support his conviction for forcible 

sodomy, we remand the case for a rehearing on the issue of 

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Stoudt's probationary status. See Patterson v. Commonwealth, 12 

Va. App. 1046, 1049-1050, 407 S.E.2d 43, 45 (1991). 

 Record No. 2386-98-4, reversed

 and remanded.

 Record No. 2387-98-4, reversed

 and remanded.

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