Viney v. Com.

Present: All the Justices

PERNELL LEE VINEY

v. Record No. 041338 OPINION BY JUSTICE DONALD W. LEMONS

March 3, 2005

COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In a bench trial in the Circuit Court for the City of

Hampton, Pernell Lee Viney ("Viney") was convicted of two

counts of taking indecent liberties with a child in violation

of Code § 18.2-370. On appeal, Viney argues that there was

insufficient evidence of lascivious intent to sustain his

convictions.

I. Facts and Proceedings Below

A. Background

On April 14, 2002, thirteen-year-old A.L. and nine-year-

old H.H. rode their bicycles to Tyler Elementary School to

play. As they were playing, both girls noticed Viney's maroon

car enter a parking lot adjacent to the playground. According

to A.L., Viney began to clean his car.

When the girls left the playground, they rode their bikes

past Viney. As they did so, A.L. testified that Viney "looked

up at us and we looked at him and then he looked down and we

looked down and he exposed himself." In exposing himself,

A.L. testified that Viney "pulled his shorts up" and "to the

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side." Throughout the encounter, Viney said nothing to the

girls and did not motion for them to approach him.

At trial, Viney testified that he was at the school

cleaning his car, but that he did not intentionally expose

himself to the girls. Viney testified that he was wearing

basketball shorts and an athletic supporter that was old,

"stretched out in places," and "quite a bit worn." Because of

the condition of the athletic supporter, Viney stated that,

"if something fell out, I mean it's possible. I'm not denying

that, but there was no lascivious intent. It was not

intentional and I wasn't aware of it."

B. Proceedings Below

During his bench trial, both upon conclusion of the

Commonwealth's case-in-chief and upon conclusion of the

presentation of all the evidence, Viney moved to strike the

Commonwealth's evidence. In denying the motion at the

conclusion of all the evidence, the trial court stated:

I have no doubt that what these –

particularly what [A.L.] told me is anything

but the truth. I believe her one hundred

percent and this can't happen two ways. It can

only happen one way and I believe what she told

me.

The real issue here is whether or not

there is lascivious intent and I believe there

was based on his actions, the motioning of the

eyes and to direct their attention to his groin

area and then he pulls up his shorts.

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He says it never happened. He says if it

did, it was an accident and I just don't

believe that.

The trial court found Viney guilty of both offenses as charged

and sentenced Viney to serve a total of four years in prison,

with three years suspended.

On appeal, the Court of Appeals considered the same issue

now before this Court: whether the evidence was sufficient to

prove that Viney acted with lascivious intent. A panel of the

Court of Appeals unanimously affirmed the judgment of the

trial court in an unpublished opinion. Viney v. Commonwealth,

No. 0559-03-1 (May 4, 2004). We granted Viney's petition for

appeal.

II. Analysis

A. Standard of Review

When examining a challenge to the sufficiency of the

evidence, an appellate court must review the evidence in the

light most favorable to the prevailing party at trial and

consider any reasonable inferences from the facts proved.

Zimmerman v. Commonwealth, 266 Va. 384, 386, 585 S.E.2d 538,

539 (2003). The judgment of the trial court is presumed to be

correct and will be reversed only upon a showing that it is

"plainly wrong or without evidence to support it." Code

§ 8.01-680; Jackson v. Commonwealth, 267 Va. 178, 204, 590

S.E.2d 520, 535 (2004).

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B. "Lascivious Intent"

Viney was indicted for violation of Code § 18.2-

370(A)(1), which states: "Any person eighteen years of age or

over, who, with lascivious intent, shall knowingly and

intentionally . . . [e]xpose his or her sexual or genital

parts to any child to whom such person is not legally married"

shall be guilty of a Class 5 felony. The term "lascivious" is

not defined in the statute. However, we defined it in McKeon

v. Commonwealth, 211 Va. 24, 175 S.E.2d 282 (1970), as "a

state of mind that is eager for sexual indulgence, desirous of

inciting to lust or of inciting sexual desire and appetite."

Id. at 27, 175 S.E.2d at 284.

We enumerated evidence that may prove lascivious intent

as follows: (1) that the defendant was sexually aroused; (2)

that the defendant made gestures toward himself or to the

child; (3) that the defendant made improper remarks to the

child; or (4) that the defendant asked the child to do

something wrong. Id., 211 Va. at 27, 175 S.E.2d at 284; see

also Campbell v. Commonwealth, 227 Va. 196, 200, 313 S.E.2d

402, 404 (1984). "The four factors identified in McKeon are

set forth in the disjunctive. This means that proof of any

one factor can be sufficient to uphold a conviction under the

statute." Campbell, 227 Va. at 200, 313 S.E.2d at 404.

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McKeon involved a conviction under former Code § 18.1-214. *

Campbell involved a conviction under the current statute at

issue in this case, Code § 18.2-370.

C. Sufficiency of the Evidence

Viney maintains that his conduct amounts to no more than

indecent exposure punishable as a Class 1 misdemeanor. Code

§ 18.2-387. He asserts that lack of proof of lascivious

intent precludes his conviction for a felony. Viney and the

Commonwealth agree that only one of the four factors mentioned

in McKeon is at issue in this case: that the defendant made

gestures toward himself or to the child.

Viney contends that his “glance down, as a matter of law,

is far short of what has ever been considered a ‘gesture’

sufficient to establish ‘lascivious intent.’ ” He argues that

eye movements do not constitute a gesture and that, even if

considered a gesture, his eye movements in this case cannot

prove lascivious intent.

The Commonwealth replies that “a rational trier of fact

could conclude that the evidence proved beyond a reasonable

doubt that Viney’s eye movement, combined with the purposeful

movement of his shorts” was a gesture sufficient “to prove he

exposed his penis with lascivious intent.” We agree with

*

Repealed by Acts 1975, cc. 14, 15.

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Viney that, absent proof of lascivious intent, he could only

be found guilty of misdemeanor indecent exposure under Code

§ 18.2-387. However, we agree with the Commonwealth that the

proof in this case satisfies the evidentiary standard for

lascivious intent under Code § 18.2-370.

A gesture is “a movement usually of the body or limbs

that symbolizes or emphasizes an idea, sentiment, or

attitude.” Webster's Third New International Dictionary 952-

53 (1993). While Viney apparently disagrees, we have little

trouble concluding that the eyes are a part of the body and

that they are used for non-verbal communicative purposes. But

this case is not about eye movements or glances alone. The

evidence proves that Viney made eye contact with the girls and

then directed their attention to his groin area by

intentionally glancing down. Only then did he intentionally

pull his shorts aside to expose his previously unexposed

penis. Unquestionably, Viney’s acts qualify as a “gesture.”

The remaining issue is his intent.

Intent may be, and most often is, proven by

circumstantial evidence and the reasonable inferences to be

drawn from proven facts. Commonwealth v. Hudson, 265 Va. 505,

512-14, 578 S.E.2d 781, 785-86, cert. denied, 540 U.S. 972

(2003). Viney urges us to compare the facts of previous

opinions of the Court in consideration of proof of lascivious

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intent. Upon doing so, we conclude that the Commonwealth’s

proof was sufficient to establish beyond a reasonable doubt

that Viney acted with lascivious intent.

In McKeon, the defendant was dressed in a bathrobe

standing on his porch. He called to a young girl to “turn

around.” When she did so, she saw him smiling, with his hands

on his hips and his robe open in the front exposing his

“private parts.” 211 Va. at 24-25, 175 S.E.2d at 283. We

noted there was "no evidence that the defendant was sexually

aroused; that he made any gestures toward himself or to her;

that he made any improper remarks to her; or that he asked her

to do anything wrong." Id. at 27, 175 S.E.2d at 284. We

reversed McKeon’s conviction for lack of proof of lascivious

intent beyond a reasonable doubt. By contrast, in this case,

Viney’s gesture included making eye contact with the girls and

then, by glancing down to his groin, he directed their eyes to

his groin. Having directed their attention to his groin, he

then moved his shorts aside and exposed his penis.

In Breeding v. Commonwealth, 213 Va. 344, 192 S.E.2d 807

(1992) (per curiam), we held that the accused did not act with

lascivious intent when he drove to an area where two girls

were playing and asked them for directions. He was seated in

the car with his trousers unbuckled and unzipped. The girls

testified that they saw his “privacy.” Id. at 344, 192 S.E.2d

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at 807. We held that there was no evidence that Breeding made

any “suggestive remarks or gestures and there was no evidence

he was sexually aroused.” Id. at 344-45, 192 S.E.2d at 807.

As in McKeon, it was the lack of proof of particular acts from

which inferences of intent could be drawn that caused this

Court to reverse Breeding’s conviction.

Viney’s conduct evincing his intent is more akin to the

facts presented in Campbell v. Commonwealth. The evidence

proved that Campbell had been hiding behind a bush. He

gestured “toward himself” to get the attention of an 8 year

old girl. Upon getting her attention, he pulled his pants off

to his knees, exposing his genitalia. Campbell, 227 Va. at

197-98, 313 S.E.2d at 403. After he exposed himself, Campbell

“beckoned” to the girl again. Id. at 198, 313 S.E.2d at 403.

Like Campbell, Viney used a gesture to direct attention to

himself and more particularly to his groin area. Like

Campbell, after Viney directed the girls’ attention to his

groin, he purposefully adjusted his clothing to expose his

previously unexposed penis.

Because of gestures and other direct and circumstantial

evidence taken in context, the evidence proves that Viney

exposed his genital parts to two children while evincing a

“state of mind that is eager for sexual indulgence, desirous

of inciting to lust or of inciting sexual desire and

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appetite.” McKeon, 211 Va. at 27, 175 S.E.2d at 284. Upon

consideration of our case law and the facts of this case, we

cannot say that the trial court was plainly wrong or without

evidence to support its judgment. Nor can we conclude that

the Court of Appeals erred in its affirmation of the trial

court’s judgment.

III. Conclusion

For the reasons discussed herein, the judgment of the

Court of Appeals will be affirmed.

Affirmed.

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