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Mohajer v. Commonwealth9/17/2002
the context of an alleged sexual assault. See id. Furthermore, Brown offered her expert opinion as to Ward's injuries in terms of whether or not her injuries were consistent or inconsistent with consensual sexual intercourse. Brown offered no "diagnosis" of Ward's injuries, nor in offering her testimony did she act outside the statutory definition of the duties of a registered nurse. See id. Thus, we affirm the decision of the trial court on this issue. B. SUFFICIENCY OF THE EVIDENCE
Mohajer next argues the Commonwealth failed to establish the acts of sodomy and animate object penetration were accomplished against Ward by intimidation or force. See Code ยง 18.2-67.1. We disagree.
On review of a claim asserting the sufficiency of the evidence, "'this Court does not substitute its judgment for that of the trier of fact. Instead, the [verdict] will not be set aside unless it appears that it is plainly wrong or without supporting evidence.'" Jett v. Commonwealth, 29 Va. App. 190, 194, 510 S.E.2d 747, 748 (1999) (quoting Canipe v. Commonwealth, 25 Va. App. 629, 644, 491 S.E.2d 747, 754 (1997)).
1. Forcible Sodomy
Ward testified that Mohajer "grabbed her head and turned it" toward him. Ward stated she "tried to turn head and tried to fight [the attack] off," but could not bring herself to do so. Then, Mohajer turned her head toward him again and proceeded to hit her in the face with his penis until he "shoved it into mouth." We find that, on this evidence, the jury could have reasonably concluded that Mohajer perpetrated the sodomy by force. Thus, we affirm his conviction on this count.
2. Animate Object Penetration
In addition, we find the evidence was sufficient, as a matter of law, to prove beyond a reasonable doubt that Mohajer used intimidation to accomplish animate object penetration, and we affirm his conviction of the charge.
Intimidation may occur without threats. Intimidation . . . means putting a victim in fear of bodily harm by exercising such domination and control of her as to overcome her mind and overbear her will. Intimidation may be caused by the imposition of psychological pressure on one who, under the circumstances, is vulnerable and susceptible to such pressure. Sutton v. Commonwealth, 228 Va. 654, 663, 324 S.E.2d 665, 670 (1985); accord Commonwealth v. Bower, 264 Va. 41, 44, 563 S.E.2d 736, 737 (2002). "It defies human experience to conclude that fear of the possibility of bodily injury caused by sexual assault is insufficient 'fear of bodily harm' for purposes of establishing sexual assault by intimidation." Bower, 264 Va. at 45, 563 S.E.2d at 738.
In this case, Mohajer's actions "frightened" Ward to the point that her body "just locked down." During the incident, she cried, clutched her fist, and prayed he would stop. She testified that after he touched her breasts without her consent, she was "scared to death," because she "had no idea what was going to happen next." Ward thus feared the harm inherent in Mohajer's assault, viz., bodily harm. See id. (holding that fear of sexual assault is sufficient to prove fear of bodily harm because " exual assaults are assaults against the body of the victim are violent acts which common knowledge tells us inflict bodily hurt on the victim"). Her fear of bodily harm thus prevented her from communicating her objection to Mohajer's assault and was, therefore, sufficient to "overbear her will." Sutton, 228 Va. at 663, 324 S.E.2d at 670.
Considering the totality of the circumstances, notably Ward's statements of fear and the vaginal injury she sustained, a reasonable juror could infer that Mohajer "put [Ward] in fear of bodily harm" and,
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