COURT OF APPEALS OF VIRGINIA
Present: Judges Chaf in, O’Brien and Russell Argued at Salem, Virginia

FRANKLIN WHITFIELD JACKSON MEMORANDUM OPINION * BY v. Record No. 0766-15-3 JUDGE TERESA M. CHAFIN MARCH 1, 2016 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF PATRICK COUNTY Martin F. Clark, Jr., Judge Vikram Kapil, Deputy Public Defender, for appellant. Victoria Johnson, Assistant A ttorney General (Mark R. Herring, Attorney General, on brief), for appellee.

At the conclusion of a bench trial, the Circui t Court of Patrick Count y convicted Franklin Whitfield Jackson of taking indecent liberties wi th a child in violation of Code § 18.2-370. On appeal, he challenges the sufficiency of the evidence supporting his conv iction. Specifically, Jackson contends that the evidence presented by the Commonwealth fail ed to prove that he directed a statement proposing a sexual act toward the victim. 1 For the reasons that follow, we disagree and affirm Jackson’s conviction.

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

1 We note that the assignments of error presen ted in Jackson’s petition for appeal and his appellate brief slightly differ. The assignment of error in his petition fo r appeal states: “The Court abused its discretion when it found Petitio ner guilty of Va. Code [§] 18.2-370(A) contrary to the statute when the petitioner did not speak to th e victim when he said the offending statement, but was speaking to someone else. ” (Emphasis added). The assignment of error in his opening brief states: “The Court erred when it found Appellant guilty [of] taking indecent liberties with a child in violation of Va. Code [§] 18.2-370(A) cont rary to the statute because the statement was not made to the victim but to another. ” (Emphasis added). “[A] litigant may reword an assignment of erro r so long as the change to the assignment of error ‘does not change the substance of the error alleged.’” Whitt v. Commonwealth, 61UNPUBLISHED- 2 - I. BACKGROUND “On appeal, ‘we review the ev idence in the light most fa vorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quo ting Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987)). So viewed, the evidence is as follows. On August 7, 2014, twelve-year-old B.J.S. was at home with her two older brothers when Jackson knocked on the side door of her house. Jackson, a family friend, was forty-four years old at the time. When B.J.S. answered the door, she noticed that Jackson appeared intoxicated and that he was leaning against something. Jackson asked B.J.S. if her parents were home, and B.J.S. told him that they were not present. Jack son then told B.J.S. that she was a beautiful girl and asked her to come to his car. B.J.S. was frightened by Jackson’s comments and demeanor. She told Jackson that she would not leave the house with him, and she started to back away from the door to get one of her brothers to help her. B.J.S.’s eighteen-year-old brother, Bra ndon, had overheard the c onversation from an adjoining room in the house and was already approaching the door wh en B.J.S. began her retreat. When Brandon asked Jackson why he came to their house that day, Jackson told him that he wanted his sister to “sit on his face.” 2 Although B.J.S. was approximately ten feet away from the door and she was not facing Jackson when he ma de this statement, she clearly heard the

Va. App. 637, 656, 739 S.E.2d 254, 263 (2013) (quoting Allstate Ins. Co. v. Gauthier, 273 Va. 416, 418 n.*, 641 S.E.2d 101, 103 n.* (2007)). As the mino r alteration of the assignment of error in Jackson’s opening brief did not change the subs tance of the assignment of error presented in his petition for appeal and granted for review by this Court, we find the change insignificant and irrelevant to our appellate re view of the issue before us.

2 Jackson did not argue at trial nor does he contend on appeal that this comment did not refer to a sexual act encompassed by Code § 18.2- 370. Therefore, we decline to express an opinion regarding that issue.- 3 - statement and understood that he was referring to her. Brandon threatened Jackson and told him to leave, and Jackson quickly left the house. The following day, B.J.S. told her parents a bout Jackson’s visit a nd they contacted the police. Jackson was charged with taking indecent liberties with a child. At his trial, B.J.S. testified about the events that took place on the day in question. Wh ile she testified that Jackson had directly asked her to come to his car, B.J. S. testified that she only overheard him tell her brother that he wanted her “t o sit on his face” as she was walk ing away from the door. Brandon, however, testified that he heard Jackson ask B.J.S. to come to his car and “sit on his face . . . for a while.” Brandon explained that this statemen t caused him to “come unglued” and approach the door to help his sister. At the conclusion of the Co mmonwealth’s case-in-chief, J ackson moved to strike the evidence against him. Jackson argued that the Commonwealth had failed to establish that he proposed a sexual act to a child because he made the offending statement to Brandon rather than B.J.S. The circuit court disagreed and articula ted three alternative bases for denying Jackson’s motion. First, the circuit court noted that Br andon testified that J ackson made the offending statement directly to B.J.S. Second, the circuit court explained that Jack son could have intended B.J.S. to hear the offending statement even if he di rected it at her brother. Third, the circuit court concluded that the evidence satisfied the elements of the charged offense under a different theory even if B.J.S. had not heard the offending statement because Jackson directly invited her to his car for the purpose of engaging in sexual activity. After hearing argument, the circuit court concluded that the evidence established that Jackson had proposed a sexual act directly to B. J.S. in violation of Code § 18.2-370(A)(4), and emphasized that a comment may be directed to a th ird party even when it is directly spoken to someone else. Alternatively, the circuit court held that the evidence established that Jackson had- 4 - violated Code § 18.2-370(A)(5) by inviting B.J.S. to come to his car for the purpose of engaging in sexual activity. The circuit c ourt convicted Jackson of one c ount of taking indecent liberties with a child in violation of C ode § 18.2-370, and Jackson appealed his conviction to this Court.
II. ANALYSIS When considering the sufficiency of the evidence on appeal, we “presume the judgment of the trial court to be correct” and reverse only if the trial court’ s decision is “plainly wrong or without evidence to support it.” Davis v. Commonwealt h, 39 Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002); see also McGee v. Common wealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259, 261 (1997) ( en banc ). Under this standar d, “a reviewing court does not ‘ask itself whether it believes that the evidence at the trial estab lished guilt beyond a reasonable doubt.’” Crowder v. Commonwealth, 41 Va. App. 658, 662, 588 S.E.2d 384, 387 (2003) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). It asks instead whether “ any rational trier of fact could have found the essential elements of the crime be yond a reasonable doubt.” Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) ( en banc ) (quoting Jackson, 443 U.S. at 319). We do not “substitute our judgment for that of th e trier of fact” even if our opinion were to differ. Wactor v. Commonwealth, 38 Va . App. 375, 380, 564 S.E.2d 160, 162 (2002). “This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evid ence, and to draw reasonable in ferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319. Code § 18.2-370(A) states, in pertinent part, that: Any person 18 years of age or over, who, with lascivious intent, knowingly and intentionally comm its any of the following acts with any child under the age of 15 years is guilty of a Class 5 felony:

. . . .- 5 - (4) Propose to such child the pe rformance of an act of sexual intercourse, anal intercourse, c unnilingus, fellatio, or anilingus or any act constituting an offense under [Code] § 18.2-361; or (5) Entice, allure, persuade, or in vite any such child to enter any vehicle, room, house, or other place, for any of the purposes set forth in the preceding subdivisions of this subsection. In this case, the evidence presented by the Commonwealth supporte d the circuit court’s conclusion that Jackson directly proposed a sexual act listed in Code § 18.2-370(A)(4) to B.J.S. The evidence also supported the ci rcuit court’s alternative holding that Jackson invited B.J.S. to enter his vehicle for the purpose of engaging in sexual activity. “[T]he testimony of a single witness, if found credible by the tr ial court and not found inherently incredible by this Court, is sufficient to s upport a conviction.” McCary v. Commonwealth, 36 Va. App. 27, 41, 548 S.E.2d 239, 246 (2001). Here, B.J.S.’s brother, Brandon, testified that he heard Ja ckson tell B.J.S. that he wanted her to “sit on his face.” Brandon explained that this statem ent prompted him to come to the door to confront Jackson and help his sister. In corroboration of Brandon’ s testimony, B.J.S. testified that Brandon was already on his way to the door as she began to retreat into the hous e following her initial interaction with Jackson. Bra ndon’s testimony was not inherently incredible, and it established that Jackson directly proposed a sexual act to B.J.S. 3 Although B.J.S. testified that she heard Jack son make the offending statement to Brandon as she was walking away from the door, the circuit court could have believed Brandon’s

3 While the circuit court did not empha size Brandon’s testimony when it convicted Jackson of the charged offense, “an appellate cour t’s ‘examination is not limited to the evidence mentioned by a party in trial argument or by the trial court in it s ruling.’” Perry v. Commonwealth, 280 Va. 572, 580, 701 S.E.2d 431, 436 (2010) (quoting Bolden v. Commonwealth, 275 Va. 144, 147, 654 S.E.2d 584, 586 (2008)). Instead, “an appellate court must consider all the evidence admitted at trial that is contained in the record.” Id. Furthermore, we note that the circuit court expressly consid ered Brandon’s testimony when it denied Jackson’s motion to strike.- 6 - testimony rather than B.J.S.’s testimony regarding this subject. In this case, as in all others, the power to segregate evidence “into the believable, partly believable, or wholly unbelievable is an exercise of decisional discretion intrinsic to the factfinding task and essential to its proper performance.” Harper v. Commonwealt h, 49 Va. App. 517, 523, 642 S.E.2d 779, 782 (2007). The trier of fact is not required to accept a witness’ testimony, but in stead is free to “rely on it in whole, in part, or reject it completely.” Rollston v. Co mmonwealth, 11 Va. App. 535, 547, 399 S.E.2d 823, 830 (1991); see also Pugliese v. Commonwealth, 16 Va. App. 82, 92, 428 S.E.2d 16, 24 (1993) (noting a “fact finder is not required to believe all aspects” of a witness’ testimony; it “may reject that which it finds implausible, but accept other parts which it finds to be believable”). “Determining the credibility of wi tnesses who give conflic ting accounts is within the exclusive province of the [factfinder], whic h has the unique opportunity to observe the demeanor of the witnesses as they testif y.” Lea v. Commonwea lth, 16 Va. App. 300, 304, 429 S.E.2d 477, 479 (1993). Nevertheless, even if we assume that Jackson made the offending statement as B.J.S. was walking away from the door, we still conclude that the evidence supported his conviction. The circuit court expressly held that Jackson directed his offending statement toward B.J.S. even if he said it to her brother as she was walking away from him. The circuit court explained that a statement can be directed toward a third party even when it is directly spoken to another individual, and gave an example in which it c onveyed a statement to defense counsel while only speaking to the prosecuting attorne y. The circuit court then analy zed the context of the statement and concluded that Jackson intended to direct the statement toward B.J.S. The circuit court’s inference was reasonable and supported by th e evidence of this case. If Jackson made the offending statement to Brandon ra ther than directly to B.J.S., the context in which Jackson made the statement implied that he intended B.J.S. to hear it. While intoxicated,- 7 - Jackson arrived at B.J.S.’s house and asked her whet her her parents were home. He then told her that she was beautiful and asked her to come to his car. Within seconds of making these statements, he told Brandon that he wanted B.J.S. to “sit on his face.” B.J.S. was within earshot approximately ten feet away when Jackson ma de the offending statement, and the statement specifically referred to her. In light of these circumstances , the circuit court reasonably concluded that Jackson directed the statement toward B.J.S. While we hold that the evidence was suffi cient to support Jackson’s conviction under Code § 18.2-370(A)(4), we conclude that the evidence also supported the circuit court’s alternative holding that Jackson violated Code § 18.2-370(A)(5) by inviting B.J.S. to his car for the purpose of engaging in sexual activity. Both B.J.S. and Brandon testified that Jackson asked B.J.S. to come to his car, and their testimony c oncerning that statement was not contradicted by any other evidence. Although that statement alon e did not establish that Jackson intended to engage in sexual activity with B.J.S. if she acco mpanied him to his car, he announced his intent to do so seconds later. Moreover, the circumstan ces in which Jackson asked B.J.S. to come to his car suggested that he intended to e ngage in sexual activity with her.
III. CONCLUSION In summary, we hold that the eviden ce presented by the Commonwealth supported Jackson’s conviction. The eviden ce established that Jackson ma de an offending statement to B.J.S., either directly or while speaking to he r brother within her ears hot. The evidence also proved that Jackson invited B.J.S. to enter his ca r for the purpose of engaging in sexual activity. For these reasons, we affirm Jackson’s conviction. Affirmed.