COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Benton, Coleman, 

 Willis, Elder, Bray, Annunziata, Overton, Bumgardner 

 and Lemons 

Argued at Richmond, Virginia 

CLIFTON MASON, S/K/A 

 CLIFTON B. MASON 

 MEMORANDUM OPINION* BY 

v. Record No. 0309-97-2 JUDGE SAM W. COLEMAN III 

 NOVEMBER 10, 1998 

COMMONWEALTH OF VIRGINIA 

UPON A REHEARING EN BANC 

 FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG 

Oliver A. Pollard, Jr., Judge 

 Neil Kuchinsky (Neil Kuchinsky & Associates, 

on brief), for appellant. 

 Kathleen B. Martin, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 In a bench trial, appellant, Clifton Mason, was convicted of 

four counts of taking indecent liberties with a minor in 

violation of Code § 18.2-370. On appeal, he contends the 

evidence was insufficient to support the convictions. A divided 

panel of this Court found the evidence insufficient as to all 

four counts. We granted a petition to rehear en banc two of 

those counts. Upon rehearing en banc, we find that the evidence 

was sufficient to prove that Mason exposed himself to A.W. and 

T.B. within the meaning of Code § 18.2-370. For this reason, we 

affirm those convictions. 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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BACKGROUND

 "On appeal, we review the evidence in the light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom." Martin v. Commonwealth, 

4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). 

 Appellant was convicted of taking indecent liberties with 

A.W. and T.B. in violation of Code § 18.2-370. At the time of 

the alleged incidents, both victims were under the age of 

thirteen. 

 At trial, T.B. testified that appellant touched her breasts 

and vagina with his hands, pulled down her underpants, and rubbed 

his penis on her vagina. She further testified that appellant 

also tried to insert his penis into her vagina, but he did not 

succeed because she moved away from him. The incident happened 

at night in an unlighted room. 

 A.W. testified that appellant touched her breasts with his 

hands, pulled down her underwear to her knees, and touched her 

between her legs with his "private part." A.W. further testified 

that appellant tried to insert his "private part" into her 

"private part." Eventually, appellant stopped trying to 

penetrate her and left the room. This incident also occurred at 

night in an unlighted room. 

 At the conclusion of all the evidence, appellant argued that 

his conduct did not constitute taking indecent liberties as 

defined by Code § 18.2-370. The sole issue is whether the 
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evidence is sufficient to show that defendant exposed himself 

within the meaning of Code § 18.2-370.1

ANALYSIS

 When the sufficiency of evidence is challenged on appeal, an 

appellate court must review the evidence that tends to support 

the conviction and must uphold the conviction unless it is 

plainly wrong or lacks evidentiary support. See Code § 8.01-680; 

Commonwealth v. Jenkins, 255 Va. 516, 520, 499 S.E.2d 263, 265 

(1998). "If there is evidence to support the convictions, the 

reviewing court is not permitted to substitute its own judgment, 

even if its opinion might differ from the conclusions reached by 

the finder of fact at the trial." Id.

 T.B. testified that Mason pulled down her underpants and 

"rubbed his penis on her vagina." Although T.B. did not testify 

that she visually observed Mason's penis, she testified that 

Mason "rubbed" his penis on her. Similarly, A.W. testified that 

Mason "touched her between her legs with his `private part.'" 

The inference which the fact finder was entitled to draw from 

A.W.'s testimony was that Mason touched her between her legs with 

his penis. See e.g., Fisher v. Commonwealth, 228 Va. 296, 298, 

321 S.E.2d 202, 203 (1984) (drawing the inference that "private 

 

 1The Commonwealth contends on brief and at oral argument 

that the appellant is procedurally barred by Rule 5A:18 from 

raising a separate sufficiency claim as to these two counts. 

However, we granted the Commonwealth's petition to reconsider the 

merits of the trial court's convictions. The panel 

satisfactorily addressed the procedural bar issue, and we decline 

to reconsider those arguments. 
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parts" in a girl's testimony described her vagina); Crump v. 

Commonwealth, 20 Va. App. 609, 611-12, 460 S.E.2d 238, 239 (1995) 

(drawing inference that "private parts" in child's testimony 

referred to genitalia). The Commonwealth offered no evidence 

that A.W. or T.B. visually observed Mason's genitalia. 

 Any person at least eighteen years old who, "with lascivious 

intent, . . . knowingly and intentionally: (1) Expose[s] his or 

her sexual or genital parts to any child under the age of 

fourteen years to whom such person is not legally married" 

commits the crime of taking indecent liberties with children. 

Code § 18.2-370. 

 Mason argues that "expose" requires proof of visual 

perception. Although the victims felt Mason's penis touching 

them, he contends that because the victims did not visually 

observe the penis, he did not "expose" himself. As defined in 

the Webster's Third New International Dictionary 802 (1991), 

"expose" means "to lay open to view: lay bare: make known: set 

forth: exhibit, display." Common usage of the word "expose" 

also encompasses more than "lay open to view." For example, a 

person is exposed to a toxin even though the person may have no 

visual perception of the substance. "Exposure" means not only to 

"lay open to view" but also to "lay open to feel or to touch." 

 The Virginia Supreme Court has interpreted the word "expose" 

in the context of a Charlottesville city ordinance. See Wicks v. 

Charlottesville, 215 Va. 274, 276, 208 S.E.2d 752, 754-55 (1974) 
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(upholding conviction under indecent exposure ordinance where 

witness saw defendant holding his hand in front of his pants and 

urinating on public street but could not actually see organ being 

held by hand). In that case, the Supreme Court declined to adopt 

an interpretation that would restrict indecent exposure to 

incidents where the offending exposure was actually observed by 

one or more persons. See id. Similarly, we decline to adopt the 

more restrictive definition of "exposure" as suggested by Mason 

in the context of Code § 18.2-370. 

 The evidence proved that Mason physically touched the 

victims' genitals with his bare penis, and this conduct was 

sufficient to support the trial court's finding that Mason 

"knowingly and intentionally . . . expose[d] . . . his genital 

parts" in violation of Code § 18.2-370. Accordingly, we affirm 

the trial court's conviction with respect to these offenses. 

 Affirmed. 
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Benton, J., dissenting. 

 In accord with well established principles of statutory 

construction, "penal statutes must be strictly construed against 

the Commonwealth and applied only to those cases clearly falling 

within the language of the statute." Branch v. Commonwealth, 14 

Va. App. 836, 839, 419 S.E.2d 422, 424 (1992). When applying 

this principle, we must adhere to the equally "important 

principle . . . that '[w]ords in a statute are to be construed 

according to their ordinary meaning, given the context in which 

they are used.'" City of Virginia Beach v. Board of Supervisors 

of Mecklenburg Co., 246 Va. 233, 236, 435 S.E.2d 382, 384 (1993) 

(quoting Grant v. Commonwealth, 223 Va. 680, 684, 292 S.E.2d 348, 

350 (1982)). Thus, the act that is charged "must be within both 

the letter and the spirit of the statute; and . . . [the accused] 

is entitled to the benefit of any reasonable doubt in the 

construction of the statute." Price v. Commonwealth, 209 Va. 

383, 385, 164 S.E.2d 676, 678 (1968). 

 In pertinent part, Code § 18.2-370 provides: 

 Any person eighteen years of age or over, 

who, with lascivious intent, shall knowingly 

and intentionally: (1) Expose his or her 

sexual or genital parts to any child under 

the age of fourteen years to whom such person 

is not legally married or propose that any 

such child expose his or her sexual or 

genital parts to such person or (2) 

[Repealed.] (3) Propose that any such child 

feel or fondle the sexual or genital parts of 

such person or propose that such person feel 

or fondle the sexual or genital parts of any 

such child; or (4) Propose to such child the 

performance of an act of sexual intercourse 

or any act constituting an offense under 
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§ 18.2-361 . . . shall be guilty of a Class 6 

felony. 

 For purposes of this appeal, the relevant conduct proscribed 

in Code § 18.2-370(1) is "[e]xpose . . . sexual or genital 

parts." Thus, by its plain and unambiguous terms, Code 

§ 18.2-370 speaks only to the exposure of an accused's sexual or 

genital parts to a child or propositioning a child to expose his 

or her sexual or genital parts to the accused. Code § 18.2-370 

does not encompass cases where the accused touches the child or 

the child is caused to touch the accused. The word "expose" 

ordinarily means to lay open to view. See Webster's Third New 

International Dictionary 802 (1991). I find no authority for the 

proposition that "expose" means "to lay open to feel or touch." 

 The evidence did not prove that the children saw or had the 

opportunity to see appellant's genitals during the sexual 

incidents they described. None of the children testified that 

appellant exposed his genitals to their sight. One child 

testified that appellant attempted to put his penis in her 

vagina, and the second child testified that appellant touched her 

between her legs with his "private part." At all times relevant 

to these incidents, however, the room was dark. No evidence 

proved the children saw or could have seen appellant's genitals. 

 The other two children testified that the appellant touched or 

fondled their breasts and vaginas with his hand. Thus, the 

evidence failed to establish that appellant exposed his genitals 

to any of the four children. Consequently, I would hold that 
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appellant's actions, as related by the children, did not fall 

within the conduct prohibited by Code § 18.2-370. 

 The Commonwealth argues that it is irrelevant whether the 

children "visually . . . observed his penis." The Commonwealth 

contends that by touching the child with his penis, appellant 

violated the statutory proscription. To prevail on that theory, 

however, the Commonwealth "must show that the words of the 

[statute] distinctly cover the case. No conviction can be had if 

the words [of the statute] are merely equally capable of a 

construction that would, and one that would not, inflict the 

penalty." McKay v. Commonwealth, 137 Va. 826, 830, 120 S.E. 138, 

139 (1923). 

 When we consider the ordinary meaning of the word "expose" 

within the context of Code § 18.2-370, we must examine both the 

1981 amendment to Code § 18.2-370 and the statutes enacted in 

lieu of the language deleted from Code § 18.2-370. In 1981, the 

General Assembly amended Code § 18.2-370 to eliminate subsection 

(2), which read: "In any manner fondle or feel, or attempt to 

fondle or feel, the sexual or genital part of any such child, or 

the breast of any such female child." The proscriptions formerly 

contained in subsection (2) are now found in other statutes. 

Code § 18.2-67.3(A), which the General Assembly enacted in 1981 

in its revision of the sexual abuse statutes, reads as follows: 

"An accused shall be guilty of aggravated sexual battery if he or 

she sexually abuses the complaining witness, and . . . [t]he 
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complaining witness is less than thirteen years of age." Code 

§ 18.2-67.10(6) defines "sexual abuse" as "an act committed with 

the intent to sexually molest, arouse, or gratify any person 

where . . . [t]he accused intentionally touches the complaining 

witness's intimate parts or material directly covering such 

intimate parts." I believe the General Assembly would not have 

transferred prohibition against such conduct from Code § 18.2-370 

to Code § 18.2-67.3 if it had intended to continue such 

prohibition under subsection (1) of Code § 18.2-370. See Roger 

D. Groot, Criminal Offenses and Defenses in Virginia 387 (3rd ed. 

1994) ("Section 18.2-370 formerly criminalized fondling; that 

portion has been repealed and is found in § 18.2-67.3."). 

 Although the Commonwealth and the majority cite Wicks v. 

Charlottesville, 215 Va. 274, 208 S.E.2d 752 (1974), as support 

for an expanded definition of the word "expose," that case does 

not lend comfort to the Commonwealth's argument in this case. 

Wicks was prosecuted because he "urinated on a public street in 

the presence of others." Id. at 275, 208 S.E.2d at 754. On 

appeal from his conviction, the Supreme Court interpreted a 

Charlottesville ordinance that codified the common law offense of 

indecent exposure in a public place. Id. See also Noblett v. 

Commonwealth, 194 Va. 241, 244-45, 72 S.E.2d 241, 243 (1952). 

The Court noted that "indecent exposure" means "'[e]xposure to 

sight of the private parts of the body in a lewd or indecent 

manner in a public place.'" Wicks, 215 Va. at 276, 208 S.E.2d at 
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754 (citation omitted) (emphasis added). Based in significant 

part on this definition, the Court "construe[d] the first six 

words of the Charlottesville . . . Code [, 'No person shall 

indecently expose himself,'] as contemplating an intentional and 

indecent exposure in a public place where it is likely to be 

seen, whether actually seen by one or several persons." Id. at 

276, 208 S.E.2d at 755 (emphasis added). 

 The statute at issue in this case, Code § 18.2-370, is not a 

codification of a common law rule and does not parallel the 

ordinance addressed in Wicks. If Wicks has any bearing on this 

case, it is because the Supreme Court in applying the common law 

principle of indecent exposure recognized the necessity of a 

visual connotation to "exposure" by requiring "'that the act is 

seen or is likely to be seen by casual observers.'" 215 Va. at 

275, 208 S.E.2d at 754 (emphasis added) (quoting Noblett, 194 Va. 

at 245, 72 S.E.2d at 243). 

 The evidence in this case, unlike in Wicks and Noblett, did 

not prove that the acts occurred under circumstances where the 

appellant's genitals were seen or even likely to have been seen 

by the children. No authority suggests that by proving the 

appellant touched the children with his genitals, the 

Commonwealth is thereby relieved of its burden of proving beyond 

a reasonable doubt that appellant exposed his genitals. His 

genitals were neither seen, as required by the ordinary meaning 

of Code § 18.2-370, nor "likely to be seen," if we are required 
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to use the Wicks common law definition of indecent exposure in a 

public place. 215 Va. at 276, 208 S.E.2d at 755 (emphasis 

added). 

 Simply put, the Commonwealth brought this prosecution under 

the wrong statute. The Commonwealth proceeded in disregard of 

the General Assembly's repeal of subsection (2) from Code 

§ 18.2-370. Thus, for these reasons and for the reasons stated 

in the panel opinion issued May 5, 1998, I would reverse the 

convictions.