COURT OF APPEALS OF VIRGINIA 

Present: Judges Petty, Huff and Senior Judge Annunziata 

Argued at Lexington, Virginia 

JOSEPH LOUIS PADUANO 

 OPINION BY 

v. Record No. 0816-13-3 JUDGE ROSEMARIE ANNUNZIATA 

 DECEMBER 30, 2014 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY 

Charles J. Strauss, Judge Designate 

 Glenn L. Berger (Berger & Thornhill, on brief), for appellant. 

 Victoria Johnson, Assistant Attorney General (Mark R. Herring, 

Attorney General; Katherine Quinlan Adelfio, Assistant Attorney 

General, on brief), for appellee. 

 Joseph L. Paduano (“appellant”) appeals his convictions in a bench trial of two counts of 

carnal knowledge of a child between the ages of thirteen and fifteen, second or subsequent 

offense, in violation of Code § 18.2-63(A). He was sentenced to a total of twenty years’ 

incarceration in the Virginia Department of Corrections.1

 On appeal, appellant contends the trial court erred in denying his motion for a bill of 

particulars, in convicting appellant of two counts under Code § 18.2-63(A) for acts that occurred 

during the same incident, and sentencing appellant to two consecutive sentences for the offenses. 

Finding no error, we affirm the convictions. 

 1

 Appellant was also convicted of possession of a firearm by a violent felon, for which he 

received a five-year sentence. This conviction is not currently before us. The appeal of that 

conviction was denied by order dated November 26, 2013. 

PUBLISHED 
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BACKGROUND 

Under familiar principles of appellate review, “‘we consider the evidence and all 

reasonable inferences flowing from that evidence in the light most favorable to the 

Commonwealth, the prevailing party at trial.’” Williams v. Commonwealth, 49 Va. App. 439, 

442, 642 S.E.2d 295, 296 (2007) (en banc) (quoting Jackson v. Commonwealth, 267 Va. 666, 

672, 594 S.E.2d 595, 598 (2004)). So viewed, the evidence is as follows. 

 Between April 8 and 14, 2012, the victim, who was then thirteen, stayed at the 

Pittsylvania County home of her sister, T.P. T.P. and appellant, who was her husband, lived in 

the home with their children and a roommate. 

 On one night during the time period, the victim was alone with appellant playing pool in 

the basement of the home. The other children were upstairs, and T.P. was not at home. 

Appellant kissed the victim, and when he pulled up her shirt several times, the victim pulled it 

back down again. He also touched her breasts under her shirt. Against the victim’s will, 

appellant tried to pull down the victim’s pants several times. In the course of his attempts to 

remove the victim’s pants, appellant penetrated her vagina with his finger. He then turned the 

victim around, bent her over the pool table, and put his penis inside her vagina. Appellant had 

sexual intercourse with the victim for several minutes. After this sequence of events, appellant 

left the victim in the basement and went upstairs. 

 On May 26, 2012, police officers responded to a call from T.P. claiming that appellant 

was threatening to commit suicide. T.P. reported that appellant became upset after she 

confronted him about having sex with the victim. 

 Law enforcement officers located appellant shortly after arriving on the scene, and 

detained him in the back of the officers’ patrol vehicle. When the police later interviewed 

appellant, he admitted that he had had sex with the victim. 
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In addition to the firearms charge, a Pittsylvania County grand jury indicted appellant on 

two counts of carnal knowledge of a minor, in violation of Code § 18.2-63(A). Specifically, the 

grand jury charged: 

Between April 8, 2012 and April 14, 2012, . . . [appellant] . . . [d]id 

unlawfully and feloniously, while being over the age of 18 years, 

engage in sexual intercourse with T.M.H., a child born May 22, 

1998, the accused having been previously sentenced for carnally 

knowing while over the age of 18 a child between 13 and 15 years 

of age, in violation of . . . Code § 18.2-63 . . . . 

The grand jury further charged: 

Between April 8, 2012 and April 14, 2012, . . . [appellant] . . . [d]id 

unlawfully and feloniously, while being over the age of 18 years, 

did [sic] commit animate object sexual penetration of T.M.H., a 

child born May 22, 1998, the accused having been previously 

sentenced for carnally knowing while over the age of 18 a child 

between 13 and 15 years of age, in violation of . . . Code 

§ 18.2-63 . . . . 

Prior to trial on these indictments, appellant filed a motion for a bill of particulars 

pursuant to Code §§ 19.2-230 and 19.2-266.2, in which he alleged that “[appellant] has been 

indicted on three offenses which appear to involve the same act and/or code section. The dates 

are the same for each of the three offenses but span six days.”2

 Appellant argued at the hearing 

on his motion that “issues of double jeopardy . . . require that the Commonwealth provide 

[appellant] the information as to whether or not this is one incident at one time and . . . exactly 

what behavior they are alleging makes this two offenses rather than one.” The trial court denied 

appellant’s motion for a bill of particulars, noting that the indictments sufficiently described each 

of the alleged offenses. 

 2

 Appellant was also indicted for taking indecent liberties with a minor, in violation of 

Code § 18.2-370.1(A), but the trial court granted appellant’s motion to strike this charge. 
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I. 

Bill of Particulars 

 Code § 19.2-220 provides that an indictment against a defendant 

shall be a plain, concise and definite written statement, (1) naming 

the accused, (2) describing the offense charged, (3) identifying the 

county, city or town in which the accused committed the offense, 

and (4) reciting that the accused committed the offense on or about 

a certain date. In describing the offense, the indictment . . . may 

use the name given to the offense by the common law, or the 

indictment . . . may state so much of the common law or statutory 

definition of the offense as is sufficient to advise what offense is 

charged. 

 “A defendant is not entitled to a bill of particulars as a matter of right.” Goins v. 

Commonwealth, 251 Va. 442, 454, 470 S.E.2d 114, 123 (1996). Ordinarily, “an indictment 

sufficiently charges a statutory offense if it follows the language of the statute.” Sims v. 

Commonwealth, 28 Va. App. 611, 619, 507 S.E.2d 648, 652 (1998). “‘The purpose of a bill of 

particulars is to state sufficient facts regarding the crime to inform an accused in advance of the 

offense for which he is to be tried. He is entitled to no more.’” Swisher v. Commonwealth, 256 

Va. 471, 480, 506 S.E.2d 763, 768 (1998) (quoting Hevener v. Commonwealth, 189 Va. 802, 

814, 54 S.E.2d 893, 899 (1949)). However, “‘when the statutory language does not in itself fully 

and clearly set forth all material elements of the offense,’” Sims, 28 Va. App. at 619, 507 S.E.2d 

at 652 (quoting 2 Charles E. Torcia, Wharton’s Criminal Procedure § 265, at 127 (13th ed. 

1990)), a trial court “may direct the filing of a bill of particulars,” Code § 19.2-230. “‘The 

decisive consideration in each case is whether the matter claimed to be left out of the indictment 

has resulted in depriving an accused of a substantial right and subjects him to the danger of being 

tried upon a charge for which he has not been indicted.’” Ward v. Commonwealth, 205 Va. 564, 

569, 138 S.E.2d 293, 297 (1964) (quoting Livingston v. Commonwealth, 184 Va. 830, 837, 36 

S.E.2d 561, 565 (1946)). A “trial court’s decision whether to require the Commonwealth to file 
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a bill of particulars is a matter committed to its sound discretion.” Muhammad v. 

Commonwealth, 269 Va. 451, 493, 619 S.E.2d 16, 40 (2005) (citing Quesinberry v. 

Commonwealth, 241 Va. 364, 372, 402 S.E.2d 218, 223 (1991)). 

Here, the indictments against appellant set forth the specific charges against him. The 

indictments specifically track the language of Code § 18.2-63. The first indictment alleged that 

appellant had carnal knowledge of the victim by “engag[ing] in sexual intercourse,” and the 

second indictment alleged that appellant had carnal knowledge of the victim by “commit[ting] 

animate object sexual penetration.” Moreover, each indictment identified the time at which the 

carnal knowledge act was alleged to have occurred, and against whom it occurred. Appellant 

argues the Commonwealth was required to file a bill of particulars further describing the nature 

of the “animate object sexual penetration” at issue. However, the Commonwealth is not required 

to disclose the evidence upon which it planned to rely to prove an element of the offense. See 

Sims, 28 Va. App. at 620, 507 S.E.2d at 653 (stating that a defendant “should not be permitted to 

use a bill of particulars to expand the scope of discovery in a criminal case”). 

We conclude that appellant has not identified any legally required matter that was “left 

out of the indictment[s] [that] resulted in depriving [him] of a substantial right and subject[ed] 

him to the danger of being tried upon a charge for which he [w]as not . . . indicted.’” Ward, 205 

Va. at 569, 138 S.E.2d at 297. Therefore, the trial court did not abuse its discretion in denying 

the motion for a bill of particulars. 

II. 

Conviction of Two Counts of Carnal Knowledge 

Appellant contends that because the two crimes occurred during the course of one 

incident, the trial court erred in convicting him of two separate crimes of carnal knowledge. 

Appellant argues his two convictions were not warranted because “the [General Assembly] in 
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defining carnal knowledge . . . as including a number of acts, . . . did not intend that each [act] be 

prosecuted and punished separately whe[n] it occurred in the same incident . . . .” We do not 

agree with appellant’s proffered construction of the statute. 

Code § 18.2-63(A) provides that “[i]f any person carnally knows, without the use of 

force, a child thirteen years of age or older but under fifteen years of age, such person shall be 

guilty of a Class 4 felony.” For the purposes of this provision, “‘carnal knowledge’ includes the 

acts of sexual intercourse, cunnilingus, fellatio, anilingus, anal intercourse, and animate and 

inanimate object sexual penetration.” Code § 18.2-63(C)(ii). 

To interpret Code § 18.2-63(A) and its definitional provisions, “we rely on the familiar 

principles of statutory construction, and review this issue de novo.” Hines v. Commonwealth, 59 

Va. App. 567, 573, 721 S.E.2d 792, 795 (2012). “The primary objective of statutory 

construction is to ascertain and give effect to legislative intent.” Commonwealth v. Zamani, 256 

Va. 391, 395, 507 S.E.2d 608, 609 (1998). In pursuit of this objective, “[c]ourts are required to 

apply the plain language of a statute when possible and may not rewrite it.” Parker v. Warren, 

273 Va. 20, 23, 639 S.E.2d 179, 181 (2007).

 We find no ambiguity in Code § 18.2-63(A), which defines carnal knowledge to include 

sexual intercourse and animate object sexual penetration without the use of force with “a child 

thirteen years of age or older but under fifteen years of age . . . .” “‘To prove that sexual 

intercourse occurred, the evidence must establish that “there has been an actual penetration to 

some extent of the male sexual organ into the female sexual organ.”’” Carter v. Commonwealth, 

16 Va. App. 118, 127, 428 S.E.2d 34, 41 (1993) (quoting Spencer v. Commonwealth, 238 Va. 

275, 283, 384 S.E.2d 775, 779 (1989)). To prove animate object sexual penetration, the evidence 

must prove the defendant “penetrate[d] the labia majora or anus of a complaining witness . . . .” 

Code § 18.2-67.2(A). 
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 Our decision in Carter, 16 Va. App. at 127-28, 428 S.E.2d at 41-42, is instructive. There, 

the victim was raped multiple times and forced to commit oral sodomy over a two-hour time 

period. We concluded that “‘generally rape is not a continuous offense’” and “‘each act of 

intercourse constitutes a separate and distinct offense.’” Id. at 127, 428 S.E.2d 42 (quoting State 

v. Midyette, 360 S.E.2d 507, 508 (N.C. Ct. App. 1987), aff'd per curiam, 366 S.E.2d 440 (N.C. 

1988)). Finding “no legal or logical bar to separate punishment where . . . each of the 

[appellant’s] ‘repenetrations’ was clearly volitional, criminal, and occasioned by separate acts of 

force,” Carter, 16 Va. App. at 128-29, 428 S.E.2d at 42, we affirmed the trial court’s finding that 

the defendant was guilty of multiple counts of rape. 

This logic applies with equal force in the present case, where appellant’s digital 

penetration and sexual intercourse with the victim were occasioned by separate acts perpetrated 

against “a child thirteen years of age or older but under fifteen years of age . . . .” Specifically, 

the evidence established that while appellant was facing the victim and struggling with her to 

remove her pants, he digitally penetrated her with his hand. Then, after appellant successfully 

removed the pants, he turned the victim around, bent her over the pool table, and inserted his 

penis into her vagina for several minutes. Each penetration was proscribed by Code 

§ 18.2-63(A) and was occasioned by independent acts. 

The plain meaning of the statute creates separate offenses for each penetration. The trial 

court, accordingly, did not err in finding appellant guilty of two violations of Code § 18.2-63(A).

III. 

Two Sentences for Violating Code § 18.2-63 

In his third assignment of error, appellant argues that the trial court erred by sentencing 

appellant to consecutive sentences for two offenses under the same statute.3

 Specifically, 

 3

 The trial court imposed two ten-year sentences, to be served consecutively, for 

appellant’s two convictions under Code § 18.2-63. 
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appellant argues that under the Double Jeopardy Clause of the United States Constitution the trial 

court erred by sentencing him twice for the same offense. Additionally, appellant argues that 

even if two convictions were permissible, the sentences “merge under the rule of lenity, thus 

providing for sentencing on only one of the two counts.” 

A. Double Jeopardy 

 “‘The double jeopardy clauses of the United States and Virginia Constitutions provide 

that no person shall be put twice in jeopardy for the same offense.’” Tharrington v. 

Commonwealth, 58 Va. App. 704, 709, 715 S.E.2d 388, 390 (2011) (quoting Martin v. 

Commonwealth, 221 Va. 720, 722, 723 S.E.2d 778, 780 (1981)). “The federal constitutional 

provision concerning double jeopardy embodies three guarantees: ‘[i]t protects against a second 

prosecution for the same offense after acquittal[; i]t protects against a second prosecution for the 

same offense after conviction[; a]nd it protects against multiple punishments for the same 

offense.’” Stephens v. Commonwealth, 263 Va. 58, 62, 557 S.E.2d 227, 229 (2002) (quoting 

North Carolina v. Pearce, 395 U.S. 711, 717 (1969), overruled on other grounds, Alabama v. 

Smith, 490 U.S. 794 (1989)). 

 “The Double Jeopardy Clause is not abridged if an accused is subjected to punishment for 

two offenses that are supported by separate and distinct acts.” Roach v. Commonwealth, 51 

Va. App. 741, 748, 660 S.E.2d 348, 351 (2008). 

 As noted above, appellant’s two convictions were based upon separate and distinct acts. 

Thus, we do not find that double jeopardy prohibited the imposition of two sentences for the 

convictions. 
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B. The Rule of Lenity 

Appellant argues that, even were multiple convictions permissible, Code § 18.2-63(A) is 

“unclear as to the legislature’s intent to double the punishment and the rule of lenity requires 

construing the statute against the Commonwealth.” 

“Only when a ‘penal statute is unclear’ do courts apply the rule of lenity and strictly 

construe the statute in the criminal defendant’s favor.” De’Armond v. Commonwealth, 51 

Va. App. 26, 34, 654 S.E.2d 317, 321 (2007) (quoting Waldrop v. Commonwealth, 255 Va. 210, 

214, 495 S.E.2d 822, 825 (1998)). If a statute is not ambiguous, however, “the rule of lenity is 

not applicable to guide statutory interpretation.” Id. (citing United States v. Johnson, 529 U.S. 

53, 59 (2000)). Rather, “we construe the language according to its plain meaning without resort 

to rules of statutory interpretation.” Holsapple v. Commonwealth, 266 Va. 593, 598, 587 S.E.2d 

561, 564 (2003). 4

Indeed, 

the rule of lenity serves only to resolve genuine, plausible 

ambiguities and “does not abrogate the well-recognized canon that 

a statute . . . should be read and applied so as to accord with the 

purpose intended and attain the objects desired if that may be 

accomplished without doing harm to its language.” 

De’Armond, 51 Va. App. at 35, 654 S.E.2d at 321 (quoting Cartwright v. Commonwealth, 223 

Va. 368, 372, 288 S.E.2d 491, 493 (1982)). 

 4

 We further explained in De’Armond, 51 Va. App. at 34-35, 654 S.E.2d at 321, 

“The simple existence of some statutory ambiguity,” moreover, “is 

not sufficient to warrant applications of that rule, for most statutes 

are ambiguous to some degree.” Muscarello v. United States, 524 

U.S. 125, 138 (1998). And the “mere possibility of articulating a 

narrower construction” does not by itself make the rule of lenity 

applicable. Smith v. United States, 508 U.S. 223, 239 (1993). Nor 

can the rule be “invoked by a grammatical possibility” that raises a 

manifestly “implausible reading” of the legislative purpose. Caron 

v. United States, 524 U.S. 308, 316 (1998). 
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We find no ambiguity in Code § 18.2-63 to justify application of the rule of lenity. 

Under Code § 18.2-63(A), it is a Class 4 felony to “carnally know[], without the use of force, a 

child thirteen years of age or older but under fifteen years of age . . . .” Code § 18.2-63(C) 

defines “carnal knowledge” to include “the acts of sexual intercourse, cunnilingus, fellatio, 

anilingus, anal intercourse, and animate and inanimate object sexual penetration.” Read together 

with its definitional provisions, Code § 18.2-63(A) is unambiguous. Its language creates an 

offense that may be committed by single act rather than one inherently “‘continuous in its 

character.’” De’Armond, 51 Va. App. at 35, 654 S.E.2d at 321-22 (citing Blockburger v. United 

States, 284 U.S. 299, 302 (1932)). Specifically, each act included within Code § 18.2-63(C) is 

sufficient in and of itself to support a conviction under Code § 18.2-63(A). This unambiguous 

statutory language forecloses use of the rule of lenity in the present case. Accordingly, we do 

not find that the trial court erred in refusing to apply the rule of lenity in this instance. 

CONCLUSION 

 For the foregoing reasons, we find no error in the trial court’s rulings, and we affirm the 

convictions. 

Affirmed.