# VIRGINIA: In the Court of Appe als 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 Vir ginia, Appellee.
Upon a Petition for Rehearing En Banc
Before Chief Judge Decker, Judges Humphreys, Petty, Beales, Huff, Chafin, O’Brien, Ru ssell, 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 as ide the judgment rendered herei n on January 15, 2019, and grant a rehearing en banc on the issue(s) raised in the petition. On consideration whereof and pursu ant to Rule 5A:35 of the Rul es of the Supreme Court of Virginia, the petition for rehearing en banc is granted and the appeal of t hose issues is reinstated on the docket of this Court. The mandate previously e ntered 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 t o the opening brief upon rehearing en banc a copy of the opinion previously rendered by the Court in this ma tter. An electronic version of each brief shall be filed with the Court and served on opposing counsel. In a ddition, four printed copies o f each brief shall be filed.-2- It is further ordered that the appellee shall fi le an electroni c 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 ca n 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 MAR Y GRACE O’BRIEN JANUARY 15, 2019 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF AMELIA COUNTY Paul W. Cella, Judge Timothy A. Hennigan (The Nguyen L aw 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 (“appel lant”) was convicted in a ben ch trial of sexual battery by force, in violation of Code § 1 8.2-67.4(A)(i). On appeal, he a rgues the evidence f ailed to establish “that the alleged touching was accomplished by the use of force sufficient to overc ome 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, s he and her sister returned to the reside nce and knocked on the front door, which was locked. Appellant ans wered and told R.W. that she wo ke him up. R.W. apologized, and as she entered the residence, appellant stood in front of her a nd “grabbed [her] br easts right behind

* Pursuant to Code § 17.1-413, th is opinion is not designated fo r publication.

1 We refer to the complaining witn ess by her initials to maintai n her privacy.UNPUBLISHED- 2 - [her] nipples and twisted as hard as he could.” R.W. stated th at she “smacked his hands away” and appellant then “smacked [her] bottom.” R.W.’s sister testified that she observed appellant’s action a nd “couldn’t believe it happened.” She stated that wh en appellant grabbed her sister’s breasts, R.W. told “him to get off of her,” and he did s o “about maybe a minute later.” R.W. testified that appellant also touched her without consent on several other occasions during her stay at the residenc e. Shortly after the May 23 inc ident, R.W. and her husband moved out, and she filed a criminal complaint against appellant. The court denied appellant’s mo tion to strike and found suffic ient evidence of sexual battery based on the May 23 incident. Th e court stated that “because o f the manner in which [R.W.] said that [appellant] grabbed and he ld 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 p revailing party at tr ial. Riner v. Commonwealth, 268 Va. 296, 330 (2 004). We will not set aside t he court’s judgment unless the decision is plainly wrong or without evidence to support it. C ommonwealth v. Anderson, 278 Va. 419, 425 (2009). Code § 18.2-67.4(A)(i) provides that “[a]n accused is guilty o f sexual battery if he sexually abuses . . . the complaining wit ness against the will of the co mplaining witn ess, by force, threat, intimidation, or ruse.” “Sexual a buse” is defined, in part, as when “[t]he accused intentionally touches the complaining witness’s intimate parts or material di rectly covering such intimate parts.” Code § 18.2-67.10 (6)(a). “Intimate parts ” include the breast. Code § 18.2-67.10(2).- 3 - It is undisputed that appellant sexually abused R.W. as that t erm is defined in Code § 18.2-67.10. Ho wever, appellant asserts that the Commonwealth failed to prove that the sexual abuse was accomplishe d by “force” as requir ed by Code § 18.2-67 .4(A)(i). The Commonwealth responds that the testimony that appellant “twisted [her breast s] as hard as he could” for “about maybe a minute” was su fficient to establis h that element of the offense. We addressed the degree of force necessary to support a sexual battery conviction in Johnson v. Commonwealth, 5 Va. A pp. 529 (1988). We stated that “[s]ome force other than merely that force required to accomplish the unlawful touching” is req uired. Id. at 534. “[U]nless some force is used to overcome the will of the complaining wi tness, the unlawful touching constitutes common law assault and battery.” Id. (emphasis added). See Ha ynes v. Commonwealth, No. 1778-98-3, at *2 (Va. Ct. App. Oct. 5, 1999) (defendant con ceded the evidence was sufficient to prove force where he held victim’s hands behind her back whi le touching her vagina). 2 Evidence that appellant acted w ithout warning or provocation c annot satisfy the “force” element of sexual battery. See Woodard v. Commo nwealth, 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 “sque ezed her breasts, grabbed her between her legs, and departed.” Id. The court found that alt hough the battery was not accomplished by forc e or threat, the defendant’s presence in th e apartment intimidated the victim to the extent necessary to convict him of sexual battery. Id. at 408. We reversed the conviction becau se 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, 116 5 (1991)). Noting that t he victim “had time neither to

2 “Although not bindi ng precedent, unpublished opinions can be c ited and considered for their persuasive value.” Otey v. Commonwealth, 61 Va. App. 346 , 350 n.3 (2012) . See also Rule 5A:1(f).- 4 - reflect upon [the defen dant’s] conduc t, nor to submit,” we held that “[w]hile the touching was patently non-consensual and outr ageously offensive, it was acco mplished 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 defe ndant to overcome the victim’s w ill. Here, while the evidence demonstrated that appellant accom plished the battery “by surpri se,” it was insufficient to prove he committed sexual abuse by force. The restra int employed by app ellant was inherent in the act itself; it was not used to ov ercome her will to accomplish the non-cons ensual touching. The Commonwealth asserts that the element of force can be esta blished by the violent nature of the act and the fact t hat 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 address ed sexual offenses requiring proof that a defendant’s act is “acco mplished against t he 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. 2 153-07-2, at *3 (object sexual penetration, in vi olation of Code § 18.2-67.2). However, the Commonwealth’s relia nce on those cases is misplac ed. In both, we affirmed convictions based on evidence th at the defendants’ conduct cons isted of an act of force separately identifiable from the unlawful t ouching. In Clark, the defenda nt’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 K anczuzewski, the defendant’s a ct of “grabbing” the victim prior to a sexual assault was “more than th e force required to accomplish the unlawful touching.” No. 2153-07-2, at *4. We acknowledge d that the defendant “proceede d on” groping his victim “for- 5 - 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. He re, however, any dur ational evidence served only to demonst rate the non-consensua l touching occurred . See id. at *4. T herefore, even if we consider the evidence and in ferences in the light most favor able to the Commonwealth, the totality of facts cannot establish the force necessary to susta in 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.- 6 - Beales, J., dissenting. The majority, relying primarily on Johnson v. Commonwealth, 5 V a. App. 529 (1988), and Woodard v. Commonwealth , 27 Va. App. 405 (1998), holds that “th e totality of facts cannot establish the force necessary to sustain appellant’s conviction for sexual battery.” I respectfully disagree. “Viewing the evidence in the lig ht most favorable to the Common wealth, as we must since it was the prevailing party in the trial court,” Riner v. Commo nwealth, 268 Va. 296, 330 (2004), the evidence shows that, as R.W. was entering the house where she a nd her husband lived with appellant Robinson, a ppellant stood in fro nt of her at the door way 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 the n “smacked [her] bottom.” R.W .’s sister testified that she observed appellant’s action and t hat, when appellant grabbed he r sister’s breasts, R.W. told “him to get off of her.” Her sister te stified that appellant did not d o so, however, un til “about maybe a minute later.” Considering the totality of the circumstances, and giving the t rial 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 unlawfu l touching . . . .” Johnson, 5 Va. App. at 534. In Johnson, the evidence showed that J ohnson positioned hims elf behind the vict im, who was lying in a bed, and “touched” the victim’s genitalia and buttocks. This Court reve rsed Johnson’s con viction, finding “[s]ome force other than merely that force required to accompli sh the unlawful touching” is required. Id. In the case curre ntly before us, however, the e vidence shows the action was more than a mere touching – because appellant “grabbed [her] breasts behi nd [her] nipples and twisted as hard

3 Testimony at trial s hows that R.W. and her husband lived with appellant and his girlfriend in a house belonging to appellant’s girlfriend. The evidence a lso shows that the incident at issue in this case is not the first time that appellant touched R.W. wit hout her consent.- 7 - as he could .” (Emphasis added.) The victim then smacked appellant’s hand s sufficiently to finally get them off of her breasts. Johnson also states that “[w]her e the complaining witness is at least thirteen years old, unless some force is used to overcome the will of the complaini ng witness, the unlawful touching constitutes common law assault an d battery.” Joh nson, 5 Va. Ap p. at 534. This requirement for the necessary force is met in the facts of this case. The victim, by smacking away app ellant’s hands and telling him to “get off of her” not only demonstr ated her lack of consent, which was not in dispute, but also conveyed that he was us ing such force that she could n ot 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” an d then finally let go “about may be 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 w hich she said that he grabbed and held
and twisted her breasts, the requirement of force is met.” (Emphasis adde d.) The majority discusses Woodard and notes that, in that case, th e trial court found the defendant’s actions did not cons titute force or threat, but ins tead constituted in timidation under Code § 18.2-67.4( A). Thus, on ap peal, this Court’s inquiry in Woodard, where this Court reversed the conviction, was limited to “wh ether Woodard sexually abused [the victim] by intimidation.” Woodard, 27 Va. App. at 409. In contrast to the situation in W oodard, the trial court in this case found appellant guilty because he used the necessary force – as opposed to intimidation – to accomplish the sexual abuse. Ther efore, this Court’s decision in Woodard does not control the outcome of this case. Considering the totality of the circumstances, I would hold tha t a rational fact finder could conclude that appellant used mor e force than that necessary mer ely to accomplish the touching because not only did he touch or g rab the victim’s breasts but he also “twisted as hard as he could” –- 8 - 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 sh ort, given the totality of the circumstances, I simply cannot say that no rational fact finder woul d have found the appellant gui lty of sexual battery beyond a reasonable doubt. Consequently, I would a ffirm the circuit c ourt. For these reas ons, I respectfully dissent.