VIRGINIA: 

In the Court of Appeals of Virginia on Tuesday the 12th day of February, 2019. 

Johnathan Reeves Robinson, Appellant, 

 against Record No. 1679-17-2 

 Circuit Court No. CR17000069-00 

Commonwealth of Virginia, Appellee. 

Upon a Petition for Rehearing En Banc 

Before Chief Judge Decker, Judges Humphreys, Petty, Beales, 

Huff, Chafin, O’Brien, Russell, AtLee and Malveaux 

 On January 29, 2019 came the appellee, by the Attorney General of Virginia, and filed a petition 

requesting that the Court set aside the judgment rendered herein on January 15, 2019, and grant a rehearing en 

banc on the issue(s) raised in the petition. 

 On consideration whereof and pursuant to Rule 5A:35 of the Rules of the Supreme Court of Virginia, 

the petition for rehearing en banc is granted and the appeal of those issues is reinstated on the docket of this 

Court. The mandate previously entered herein is stayed pending the decision of the Court en banc. 

 The parties shall file briefs in compliance with the schedule set forth in Rule 5A:35(b). The appellant 

shall attach as an addendum to the opening brief upon rehearing en banc a copy of the opinion previously 

rendered by the Court in this matter. An electronic version of each brief shall be filed with the Court and 

served on opposing counsel. In addition, four printed copies of each brief shall be filed. 

 
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It is further ordered that the appellee shall file an electronic version and four additional copies of the appendix 

previously filed in this case.1

 A Copy, 

 Teste: 

 Cynthia L. McCoy, Clerk 

 original order signed by a deputy clerk of the

 By: Court of Appeals of Virginia at the direction 

 of the Court 

 Deputy Clerk 

 1

 The guidelines for filing electronic briefs and appendices can be found at 

www.courts.state.va.us/online/vaces/resources/guidelines.pdf. 
COURT OF APPEALS OF VIRGINIA 

Present: Judges Beales, O’Brien and Malveaux 

Argued at Richmond, Virginia 

JOHNATHAN REEVES ROBINSON 

 MEMORANDUM OPINION* BY 

v. Record No. 1679-17-2 JUDGE MARY GRACE O’BRIEN 

 JANUARY 15, 2019 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF AMELIA COUNTY 

Paul W. Cella, Judge 

Timothy A. Hennigan (The Nguyen Law Firm, PLC, on brief), for 

appellant. 

Donald E. Jeffrey, III, Senior Assistant Attorney General (Mark R. 

Herring, Attorney General, on brief), for appellee. 

 Johnathan Reeves Robinson (“appellant”) was convicted in a bench trial of sexual battery by 

force, in violation of Code § 18.2-67.4(A)(i). On appeal, he argues the evidence failed to establish 

“that the alleged touching was accomplished by the use of force sufficient to overcome the victim’s 

will.” We agree and reverse appellant’s conviction. 

BACKGROUND 

 In April and May of 2017, R.W.1

 and her husband resided with appellant. R.W. testified 

that on May 23, 2017, she and her sister returned to the residence and knocked on the front door, 

which was locked. Appellant answered and told R.W. that she woke him up. R.W. apologized, and 

as she entered the residence, appellant stood in front of her and “grabbed [her] breasts right behind 

 *

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 

1

 We refer to the complaining witness by her initials to maintain her privacy. 

UNPUBLISHED 
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[her] nipples and twisted as hard as he could.” R.W. stated that she “smacked his hands away” and 

appellant then “smacked [her] bottom.” 

 R.W.’s sister testified that she observed appellant’s action and “couldn’t believe it 

happened.” She stated that when appellant grabbed her sister’s breasts, R.W. told “him to get off of 

her,” and he did so “about maybe a minute later.” 

 R.W. testified that appellant also touched her without consent on several other occasions 

during her stay at the residence. Shortly after the May 23 incident, R.W. and her husband moved 

out, and she filed a criminal complaint against appellant. 

 The court denied appellant’s motion to strike and found sufficient evidence of sexual battery 

based on the May 23 incident. The court stated that “because of the manner in which [R.W.] said 

that [appellant] grabbed and held and twisted her breasts, the requirement of force [had been] met,” 

and convicted appellant of sexual battery. 

DISCUSSION 

 When reviewing a challenge to the sufficiency of the evidence, this Court views the 

evidence in the light most favorable to the Commonwealth, the prevailing party at trial. Riner v. 

Commonwealth, 268 Va. 296, 330 (2004). We will not set aside the court’s judgment unless the 

decision is plainly wrong or without evidence to support it. Commonwealth v. Anderson, 278 Va. 

419, 425 (2009).

 Code § 18.2-67.4(A)(i) provides that “[a]n accused is guilty of sexual battery if he sexually 

abuses . . . the complaining witness against the will of the complaining witness, by force, threat, 

intimidation, or ruse.” “Sexual abuse” is defined, in part, as when “[t]he accused intentionally 

touches the complaining witness’s intimate parts or material directly covering such intimate parts.” 

Code § 18.2-67.10(6)(a). “Intimate parts” include the breast. Code § 18.2-67.10(2). 
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 It is undisputed that appellant sexually abused R.W. as that term is defined in Code 

§ 18.2-67.10. However, appellant asserts that the Commonwealth failed to prove that the sexual 

abuse was accomplished by “force” as required by Code § 18.2-67.4(A)(i). The Commonwealth 

responds that the testimony that appellant “twisted [her breasts] as hard as he could” for “about 

maybe a minute” was sufficient to establish that element of the offense. 

 We addressed the degree of force necessary to support a sexual battery conviction in 

Johnson v. Commonwealth, 5 Va. App. 529 (1988). We stated that “[s]ome force other than merely 

that force required to accomplish the unlawful touching” is required. Id. at 534. “[U]nless some 

force is used to overcome the will of the complaining witness, the unlawful touching constitutes 

common law assault and battery.” Id. (emphasis added). See Haynes v. Commonwealth, 

No. 1778-98-3, at *2 (Va. Ct. App. Oct. 5, 1999) (defendant conceded the evidence was sufficient 

to prove force where he held victim’s hands behind her back while touching her vagina).2

 Evidence that appellant acted without warning or provocation cannot satisfy the “force” 

element of sexual battery. See Woodard v. Commonwealth, 27 Va. App. 405 (1998). In Woodard, 

the victim entered her apartment and found the defendant inside, uninvited. Id. at 407. After the 

victim told Woodard that she did not want to date him, he “squeezed her breasts, grabbed her 

between her legs, and departed.” Id. The court found that although the battery was not 

accomplished by force or threat, the defendant’s presence in the apartment intimidated the victim to 

the extent necessary to convict him of sexual battery. Id. at 408. 

 We reversed the conviction because when the defendant “simply grabbed her abruptly,” that 

action did not constitute intimidation, which requires “fear of bodily harm.” Id. at 410 (citing Clark 

v. Commonwealth, 12 Va. App. 1163, 1165 (1991)). Noting that the victim “had time neither to 

 2

 “Although not binding precedent, unpublished opinions can be cited and considered for 

their persuasive value.” Otey v. Commonwealth, 61 Va. App. 346, 350 n.3 (2012). See also Rule 

5A:1(f). 
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reflect upon [the defendant’s] conduct, nor to submit,” we held that “[w]hile the touching was 

patently non-consensual and outrageously offensive, it was accomplished by surprise, not by 

intimidation.” Id. 

Although the issue in the case before us is “force” as opposed to “intimidation,” a similar 

analysis applies; sexual battery, under Code § 18.2-67.4(A)(i), whether achieved by force or 

intimidation, requires the defendant to overcome the victim’s will. Here, while the evidence 

demonstrated that appellant accomplished the battery “by surprise,” it was insufficient to prove he 

committed sexual abuse by force. The restraint employed by appellant was inherent in the act itself; 

it was not used to overcome her will to accomplish the non-consensual touching. 

 The Commonwealth asserts that the element of force can be established by the violent 

nature of the act and the fact that appellant did not release R.W. for “about maybe a minute,” citing 

Clark v. Commonwealth, 30 Va. App. 406 (1999), and Kanczuzewski v. Commonwealth, 

No. 2153-07-2 (Va. Ct. App. Mar. 10, 2009). Both cases addressed sexual offenses requiring proof 

that a defendant’s act is “accomplished against the will of the complaining witness, by force, threat 

or intimidation.” Clark, 30 Va. App. at 409 (aggravated sexual battery, in violation of Code 

§ 18.2-67.3); Kanczuzewski, No. 2153-07-2, at *3 (object sexual penetration, in violation of Code 

§ 18.2-67.2). 

 However, the Commonwealth’s reliance on those cases is misplaced. In both, we affirmed 

convictions based on evidence that the defendants’ conduct consisted of an act of force separately 

identifiable from the unlawful touching. In Clark, the defendant’s act of lying on top of a victim 

was more force than required to accomplish the unlawful act of touching her intimate parts. 30 

Va. App. at 410. Similarly, in Kanczuzewski, the defendant’s act of “grabbing” the victim prior to a 

sexual assault was “more than the force required to accomplish the unlawful touching.” No. 

2153-07-2, at *4. We acknowledged that the defendant “proceeded on” groping his victim “for 
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about one or two minutes” after she told him it hurt and asked him to stop, which “reinforce[d] the 

trial court’s finding that force was used.” Id. at *1, *4. Here, however, any durational evidence 

served only to demonstrate the non-consensual touching occurred. See id. at *4. Therefore, even if 

we consider the evidence and inferences in the light most favorable to the Commonwealth, the 

totality of facts cannot establish the force necessary to sustain appellant’s conviction for sexual 

battery. 

 Accordingly, we reverse the conviction and remand the case for further proceedings, if the 

Commonwealth be so advised. 

Reversed and remanded. 

 
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Beales, J., dissenting. 

The majority, relying primarily on Johnson v. Commonwealth, 5 Va. App. 529 (1988), and 

Woodard v. Commonwealth, 27 Va. App. 405 (1998), holds that “the totality of facts cannot 

establish the force necessary to sustain appellant’s conviction for sexual battery.” I respectfully 

disagree. 

“Viewing the evidence in the light most favorable to the Commonwealth, as we must since 

it was the prevailing party in the trial court,” Riner v. Commonwealth, 268 Va. 296, 330 (2004), the 

evidence shows that, as R.W. was entering the house where she and her husband lived with 

appellant Robinson, appellant stood in front of her at the doorway and “grabbed [her] breasts right 

behind [her] nipples and twisted as hard as he could.”3 The victim, R.W., stated that she “smacked 

his hands away” and appellant then “smacked [her] bottom.” R.W.’s sister testified that she 

observed appellant’s action and that, when appellant grabbed her sister’s breasts, R.W. told “him to 

get off of her.” Her sister testified that appellant did not do so, however, until “about maybe a 

minute later.” 

Considering the totality of the circumstances, and giving the trial judge, as the finder of fact, 

the deference required, the evidence shows that appellant used more force than “merely that force 

required to accomplish the unlawful touching . . . .” Johnson, 5 Va. App. at 534. In Johnson, the 

evidence showed that Johnson positioned himself behind the victim, who was lying in a bed, and 

“touched” the victim’s genitalia and buttocks. This Court reversed Johnson’s conviction, finding 

“[s]ome force other than merely that force required to accomplish the unlawful touching” is 

required. Id. In the case currently before us, however, the evidence shows the action was more than 

a mere touching – because appellant “grabbed [her] breasts behind [her] nipples and twisted as hard 

 3

 Testimony at trial shows that R.W. and her husband lived with appellant and his girlfriend 

in a house belonging to appellant’s girlfriend. The evidence also shows that the incident at issue in 

this case is not the first time that appellant touched R.W. without her consent. 
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as he could.” (Emphasis added.) The victim then smacked appellant’s hands sufficiently to finally 

get them off of her breasts. 

Johnson also states that “[w]here the complaining witness is at least thirteen years old, 

unless some force is used to overcome the will of the complaining witness, the unlawful touching 

constitutes common law assault and battery.” Johnson, 5 Va. App. at 534. This requirement for the 

necessary force is met in the facts of this case. The victim, by smacking away appellant’s hands and 

telling him to “get off of her” not only demonstrated her lack of consent, which was not in dispute, 

but also conveyed that he was using such force that she could not immediately break away and that 

her will was overcome. The fact that appellant “grabbed [her] breasts right behind [her] nipples and 

twisted as hard as he could” and then finally let go “about maybe a minute later” is enough for a 

rational fact finder to conclude that he used force beyond that simply necessary to touch her breasts. 

Indeed, the trial court found that, “because of the manner in which she said that he grabbed and held 

and twisted her breasts, the requirement of force is met.” (Emphasis added.) 

The majority discusses Woodard and notes that, in that case, the trial court found the 

defendant’s actions did not constitute force or threat, but instead constituted intimidation under 

Code § 18.2-67.4(A). Thus, on appeal, this Court’s inquiry in Woodard, where this Court reversed 

the conviction, was limited to “whether Woodard sexually abused [the victim] by intimidation.” 

Woodard, 27 Va. App. at 409. In contrast to the situation in Woodard, the trial court in this case 

found appellant guilty because he used the necessary force – as opposed to intimidation – to 

accomplish the sexual abuse. Therefore, this Court’s decision in Woodard does not control the 

outcome of this case. 

Considering the totality of the circumstances, I would hold that a rational fact finder could 

conclude that appellant used more force than that necessary merely to accomplish the touching 

because not only did he touch or grab the victim’s breasts but he also “twisted as hard as he could” – 
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and held on to her in that manner for about a minute, according to the victim’s sister, who was 

standing stunned next to her. In short, given the totality of the circumstances, I simply cannot say 

that no rational fact finder would have found the appellant guilty of sexual battery beyond a 

reasonable doubt. 

Consequently, I would affirm the circuit court. For these reasons, I respectfully dissent.