COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Ju dge Petty and Senior Judge Coleman Argued at Salem, Virginia

JOHN ADAMS MESSINA, S/K/A JOHN ADAM MESSINA MEMORANDUM OPINION * BY v. Record No. 0530-05-3 CHIEF JUDGE WALTER S. FELTON, JR. OCTOBER 31, 2006 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF MARTINSVILLE G. Carter Greer, Judge Catherine E.P. Haas, Assistant Ap pellate Defender (Virginia Indigent Defense Commission, on briefs), for appellant. Michael T. Judge, Senior Assi stant Attorney Ge neral (Robert F. McDonnell, Attorney General, on brief), for appellee.
John Adams Messina (appellant) was convic ted in a bench trial of forcible sodomy, aggravated sexual battery, contributing to the delinquency of a minor, and failure to appear. 1 On appeal, he contends, “the trial cour t erred in finding that the charge of aggravated sexual battery did not violate the double jeopardy clau se of the Constitution.” He also asserts that the trial court erred in convicting him of aggravated sexual ba ttery because the Commonw ealth’s evidence was insufficient to prove that the touc hing supporting the conviction was not incidental to the forcible sodomy. For the reas ons that follow, we affirm the judgment of the trial court.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.

1 Appellant did not appeal his c onviction of failure to appear.- 2 - BACKGROUND “Under familiar principles of appellate revi ew, we view the eviden ce and all reasonable inferences fairly deducible from that evidence in the light most favorable to the Commonwealth, the party that prevailed belo w.” Banks v. Commonwealth , 41 Va. App. 539, 5 43, 586 S.E.2d 876, 877 (2003). Consistent with this principle, the ev idence shows that one ev ening in December 1998, appellant, who was 41 years old at the time, served several alcoholic drinks to T.A., then 14 years old, while T.A. was a gu est in his home. T.A. passed out. When he woke up, his pants and underwear were down around hi s ankles and appellant had T.A. ’s penis in his mouth and was “sucking on it.” Appellant admitted to the investiga ting officer, and testified in his defense, that he fondled T.A.’s penis through his pants, but he denied committing sodomy on T.A. In December 1999, after the second of two suicide attempts, T.A. told his mother ab out the incident with appellant. Appellant was arrested January 4, 2000, and wa s released on bond pending trial. He failed to appear for his preliminar y hearing in March 2000. He was eventually return ed to Virginia for trial.
ANALYSIS I. Double Jeopardy Appellant first contends that, “the trial court erred in finding that the charge of aggravated sexual battery did not violate the double jeopardy clause of the Cons titution.” Appellant also argues for the first time on appeal that the Commonwealth relied on a single act of touching to prove both offenses and that he wa s therefore subjected to multiple punishments fo r the same offense in violation of the Fifth Amendment’s prohibition ag ainst double jeopardy. The record reflects that at the conclusion of the Commonwealth’s ca se-in-chief, appellant moved to strike the forcible sodomy charge, arguin g that aggravated sexual battery was a lesser-included offense of forcib le sodomy. The tria l court denied appellant’s motion on the- 3 - grounds that it was untime ly pursuant to Rule 3A:9 . At the conclusion of all the evidence, and following appellant’s motion to strike, the trial co urt found appellant guilty of forcible sodomy, and then vacated its earlier Rule 3A:9 double jeopardy ruling. It directed the parties to provide written argument as to “whether the conduct that fo rmed the basis of guilt under the forcib le sodomy statute supplies to sustain a conviction for aggravat ed sexual battery.” In his written argument to the trial court, appellant did not address his le sser-included offense argument, arguing instead that the eviden ce was insufficient to sustain a conviction of aggravated sexual battery because the victim’s te stimony was incredible. He conceded, however, that if the trial court believed the victim’s testim ony, the evidence was suffic ient to convict him of aggravated sexual battery. He also asked the trial court to re consider its earlier ruling that Rule 3A:9 barred his double jeopardy argument, a ruling vacated by the trial court. In its letter to counsel following th eir submissions of written arguments, the trial cour t simply found appellant guilty of aggravated sexual battery , without further explanation. As such, “there is no [double jeopardy] ruling for us to review on appeal.” Ohre e v. Commonwealth , 26 Va. App. 299, 308, 494 S.E.2d 484, 489 (1998). II. Sufficiency of the Evidence Appellant also argues for th e first time on appeal, in re liance on Brown v. Commonwealth , 230 Va. 310, 337 S.E.2d 711 (1985), that the “trial court erred in convicting [him ] of aggravated sexual battery, because the eviden ce was insufficient to prove that the alleged touching was not incidental to the commis sion of [the] crime [of] . . . forcible sodomy.” 2 Stated differently, appellant

2 In Brown , the Supreme Court held that one accused of abduction by detention and another crime involving restraint of the victim, both growing out of a continuing course of conduct, is subject upon conviction to separate penalties for separate offenses only when the detention committed in the act- 4 - argues that the Commonwealth’s pr oof of the touching re quired to establish the aggravated sexual battery, was the same touchi ng required to pr ove the forcible sodomy. Appellant concedes that he did not preserve this issue for appeal. However, herequests that we invoke the “ends of justice” exception to Rule 5A:18, on the ba sis that “a review of the record will show that his aggravated sexual battery convic tion was a clear mis carriage of justice.” “The ends of justice exception to Rule 5A:1 8 is narrow and is to be used sparingly.” Copeland v. Commonwealth , 42 Va. App. 424, 442, 592 S.E.2d 391, 399 (200 4) (citing Michaels v. Commonwealth , 32 Va. App. 601, 608, 529 S. E.2d 822, 826 (2000)). “I n order to avail oneself of the exception, a[n] [appellant] must affirmatively show that a miscarriage of justice has occurred, not that a miscarriage might have occurred.” Brow n v. Commonwealth , 8 Va. App. 126, 132, 380 S.E.2d 8, 11 (1989) (c iting Mounce v. Commonwealth , 4 Va. App. 433, 436, 357 S.E.2d 742, 744 (1987)). Such a sh owing “requires proof of an error that was ‘clear, substantial and material.’” Copeland , 42 Va. App. at 442, 592 S.E.2d at 399 (quoting Brown , 8 Va. App. at 132, 380 S.E.2d at 11). “‘In examining a case for miscar riage of justice, we do not simp ly review the su fficiency of the evidence under the usual standard , but instead determine whether th e record contains affirmative evidence of innocence or lack of a criminal offens e.’” Tooke v. Commonwealth , 47 Va. App. 759, 765, 627 S.E.2d 533, 536 (2006) (quoting Lewis v. Commonwealth , 43 Va. App. 126, 134, 596 S.E.2d 542, 546 (2004), rev’d on other grounds , 269 Va. 209, 608 S. E.2d 907 (2005)). Pursuant to the aggravated sexu al battery statute in effect at the time the incident occurred, the Commonwealth was require d to prove that appellant sexually abused T.A., against his will or

of abduction is separate and apart from, and not merely incidental to, the restraint employed in th e commission of the other crime. Brown , 230 Va. at 314, 337 S.E.2d at 713-14. We note th at neither this Court nor the Supreme Court has expanded the “restraint incidental to” theory of Brown beyond cases involving abduction incidental to robbery and rape. See Pryor v. Commonwealth , 48 Va. App. 1, 6, 628 S.E.2d 47, 49 (2006).- 5 - through the use of his physical helplessness, and that T.A. was at least thirt een but less than fifteen years of age. Code § 18.2-67.3(A)(2) (1998). In order to prove appellant was guilty of the forcible sodomy charge, the Commonwealth was required to prove appellant committed fella tio upon T.A. against T.A.’s will or th rough the use of T.A.’s physical helplessness. Code § 18.2-67.1(A)(2) (1998). The record before us on appeal shows that T.A. was fourteen years ol d at the time of the incident. Appellant told the invest igating officer, and testified at tria l, that he touched T.A.’s penis through his pants on the evening in question. T.A. testified th at when he awoke, appellant was sucking his penis with his mouth. Moreover, in his brief to the trial court, appellant conceded that, “if the [trial] [c]ourt decides to be lieve the testimony of [the victim], there is sufficient evidence for a conviction of Aggravat ed Sexual Battery.” From our review of the reco rd, we conclude that there is no affirmative evidence of innocence to show that a criminal offense did not occur. Therefore, appellant has not met his burden of showing that a miscarriag e of justice has occurred. Brown , 8 Va. App. at 132, 380 S.E.2d at 11. Accordingly, “there is no basis upon which to apply the e nds of justice exception to this case.” Copeland , 42 Va. App. at 442, 592 S.E.2d at 399. Affirmed.