COURT OF APPEALS OF VIRGINIA 

Present: Judges Kelsey, Petty and Senior Judge Willis 

PAUL TALMADGE BOWDEN 

 OPINION BY 

v. Record No. 1651-07-1 JUDGE WILLIAM G. PETTY 

OCTOBER 7, 2008 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ACCOMACK COUNTY 

Glen A. Tyler, Judge 

 (Patrick A. Robbins, on brief), for appellant. Appellant submitting 

on brief. 

 (Robert F. McDonnell, Attorney General; Richard B. Smith, Special 

Assistant Attorney General, on brief), for appellee. Appellee 

submitting on brief. 

 Following a bench trial, appellant, Paul Talmadge Bowden, was convicted of aggravated 

sexual battery in violation of Code § 18.2-67.3. Bowden challenges this conviction, arguing that the 

trial court erred when it held that aggravated sexual battery is a lesser-included offense of forcible 

sodomy. For the reasons stated below, we agree with Bowden and reverse his conviction. 

I. BACKGROUND

 Appellant, Paul Talmadge Bowden, was indicted for committing forcible sodomy by 

cunnilingus on a child less than thirteen years of age in violation of Code § 18.2-67.1. At the 

conclusion of the Commonwealth’s evidence, Bowden moved to strike, arguing that the 

Commonwealth had not proved the element of penetration. After the trial court ruled there was no 

such proof, the Commonwealth contended that even if the evidence was insufficient to prove 

forcible sodomy, “sexual battery [was] still a lesser-included offense.” The trial court agreed and 
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ultimately convicted Bowden of aggravated sexual battery. Bowden was sentenced to twenty years 

incarceration with ten years suspended. This appeal followed. 

II. ANALYSIS

 Because the Due Process Clauses of both the Constitution of the United States and the 

Constitution of Virginia require that a criminal defendant be notified of the nature of the charges 

against him, “an accused cannot be convicted of a crime that has not been charged, unless the 

crime is a lesser-included offense of the crime charged.” Commonwealth v. Dalton, 259 Va. 

249, 253, 524 S.E.2d 860, 862 (2000). It is well settled that “[a] lesser-included offense is an 

offense which is composed entirely of elements that are also elements of the greater offense.” 

Kauffmann v. Commonwealth, 8 Va. App. 400, 409, 382 S.E.2d 279, 284 (1989). “Stated 

differently, an offense is not a lesser-included offense if it contains an element that the charged 

offense does not contain.” Dalton, 259 Va. at 253, 524 S.E.2d at 862 (citing Jones v. 

Commonwealth, 218 Va. 757, 759, 240 S.E.2d 658, 660 (1978)). 

 When determining “whether each [offense] requires proof of a fact which the other does 

not . . . [,]” we examine the offenses “in the abstract, rather than with reference to the facts of the 

particular case under review.” Blythe v. Commonwealth, 222 Va. 722, 726, 284 S.E.2d 796, 798 

(1981) (quoting Blockburger v. United States, 284 U.S. 299, 304 (1932); citing Whalen v. United 

States, 445 U.S. 684, 688 (1980)) (internal quotation marks and citations omitted). Because this 

case involves the trial court’s application of a statute, we review de novo. Ainslie v. Inman, 265 

Va. 347, 352, 577 S.E.2d 246, 248 (2003). 

 Viewing the elements of forcible sodomy and sexual battery in the abstract, we conclude 

that sexual battery is not a lesser-included offense of forcible sodomy. As relevant to our 

analysis, the crime of forcible sodomy is comprised of the following elements: 

1. An accused shall be guilty of forcible sodomy if he or she 

engages in cunnilingus with a complaining witness who is 
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not his or her spouse, or causes a complaining witness, 

whether or not his or her spouse, to engage in such acts 

with any other person, and 

2. The complaining witness is less than thirteen years of age 

or otherwise included in Code § 18.2-67.1(A)(2). 

See Code § 18.2-67.1; see also Horton v. Commonwealth, 255 Va. 606, 612, 499 S.E.2d 258, 

261 (1998). Further, “[p]enetration is an essential element of the crime of sodomy.” Ryan v. 

Commonwealth, 219 Va. 439, 444, 247 S.E.2d 698, 702 (1978). The element of penetration may 

be proved by circumstantial evidence, and the penetration “need only be slight.” Id.; see also

Horton, 255 Va. at 613, 499 S.E.2d at 261-62 (“[W]e conclude that penetration of any portion of 

the vulva is sufficient to prove sodomy by cunnilingus.” (citations omitted)). 

 In contrast, the crime of aggravated sexual battery is composed of the following 

elements: 

1. The accused intentionally touched either the complaining 

witness’s genitalia, anus, groin, breast, or buttocks or 

material covering those body parts; 

2. With the intent to sexually molest, arouse, or gratify either 

the perpetrator or the victim; and 

3. The victim was less than thirteen years of age, or otherwise 

included in Code § 18.2-67.3(A)(2), (3) or (4). 

See Code §§ 18.2-67.3 (aggravated sexual battery) & 18.2-67.10(2), (6) (general definitions). 

 The Attorney General observed on brief that “the only element common to both crimes is 

that the victim must be less than 13 years of age.”1

 Although this statement is not entirely 

 1

 The Attorney General concedes that the trial court erred when it determined that sexual 

battery was a lesser-included offense of forcible sodomy. However, “[o]ur fidelity to the 

uniform application of law precludes us from accepting concessions of law made on appeal.” 

Logan v. Commonwealth, 47 Va. App. 168, 172, 622 S.E.2d 771, 773 (2005) (en banc) (citing 

Cofield v. Nuckles, 239 Va. 186, 194, 387 S.E.2d 493, 498 (1990); Tuggle v. Commonwealth, 

230 Va. 99, 111 n.5, 334 S.E.2d 838, 846 n.5 (1985)). Thus, we review the record presented to 

us independent of the Attorney General’s concession of law. 
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accurate,2

 it describes the issue before us fairly well. Viewing the elements of the crimes in the 

abstract, forcible sodomy requires proof of penetration, while an accused may be convicted of 

sexual battery upon proof that he or she merely touched the clothing covering the victim’s 

“intimate parts.” Compare Horton, 255 Va. at 613, 499 S.E.2d at 261-62 (discussing the 

penetration element), with Code § 18.2-67.10(6) (“‘Sexual abuse’ means an act committed with 

the [requisite] intent, where: [t]he accused intentionally touches the complaining witness’s 

intimate parts or material directly covering such intimate parts[.]”). 

On the other hand, aggravated sexual battery requires proof that the act of touching was 

done with the specific “intent to sexually molest, arouse or gratify . . . .’” Quinones v. 

Commonwealth, 35 Va. App. 634, 640, 547 S.E.2d 524, 527 (2001). In contrast, sodomy, like 

rape, does not require a specific intent. See, e.g., Velesquez v. Commonwealth, 276 Va. 326, 

329, 661 S.E.2d 454, 456 (2008) (“Rape . . . is a general-intent crime . . . .”); State v. Plunkett, 

934 P.2d 113, 119 (Kan. 1997) (“[S]odomy, like rape, is a general intent crime.”). 

Thus, it is apparent from the plain language of the statutes that forcible sodomy and 

aggravated sexual battery each require proof of elements not required by the other. Therefore 

aggravated sexual battery is not a lesser-included offense of forcible sodomy. 

 2

 The act of sodomy, by necessity, requires a type of touching that could fulfill the 

touching element required for a conviction of aggravated sexual battery. 
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III. CONCLUSION

Based upon the foregoing discussion, we reverse Bowden’s conviction and dismiss the 

indictment.3

Reversed.

 3

 The Attorney General asks us to reverse and dismiss the indictment in this case 

“without prejudice to the Commonwealth’s right to charge and try Bowden for aggravated sexual 

battery in violation of [Code] § 18.2-67.3, if the Commonwealth were so disposed.” We decline 

to give an advisory opinion regarding whether a prosecution for sexual battery would violate the 

Double Jeopardy Clause. See Pilson v. Commonwealth, 52 Va. App. 442, 446, 663 S.E.2d 562, 

564 (2008) (“‘Advisory opinions represent an attenuate exercise of judicial power,’ one which 

we traditionally avoid in all but the most extenuating circumstances. None exist here.” (quoting 

Va. State Police v. Elliott, 48 Va. App. 551, 553, 633 S.E.2d 203, 204 (2006))).