Mohajer v. Commonwealth9/17/2002
thus, intimidated her into submission. Harris v. Commonwealth, 3 Va. App. 519, 521, 351 S.E.2d 356, 357 (1986); see Bower, 264 Va. at 45, 563 S.E.2d at 738 (holding that sexual assaults are violent acts that inflict bodily hurt on the victim). Accordingly, we affirm his conviction for animate object penetration.
Affirmed.
Humphreys, J., concurring, in part, and dissenting, in part.
I concur with the analysis and holding in Section II(A) of the majority opinion, as well as the analysis and holding of Section II(B)(1), but because I would find the evidence insufficient to establish the requisite intimidation to support the charge of animate object penetration, I do not join in the analysis or holding found in Section II(B)(2) of the majority opinion.
Object sexual penetration may be analogized to the crimes of rape (Code § 18.2-61), forcible sodomy (Code § 18.2-67.1), aggravated sexual battery (Code § 18.2-67.3), and sexual battery (Code § 18.2-67.4), in that each offense requires proof of "force, threat, or intimidation" or "mental incapacity" or "physical helplessness." Therefore, cases interpreting these sections of the code are useful in discerning the meaning and intent of Code § 18.2-67.2. Wactor v. Commonwealth, 38 Va. App. 375, 380, 56 S.E.2d 160, 162-63 (2002).
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) (emphasis added).
We have held that any force used by the defendant in committing sexual assault crimes "must be sufficient to accomplish the act as well as to overcome the will of the victim." Wactor, 38 Va. App. at 381, 564 S.E.2d at 163 (citing Johnson v. Commonwealth, 5 Va. App. 529, 534, 365 S.E.2d 237, 240 (1988)). Thus, "the degree of force required to overcome [the victim's] will, 'necessarily depend on the circumstances of each case, taking into consideration the relative physical condition of the participants and the degree of force manifested.'" Id. at 382, 564 S.E.2d at 163 (quoting Jones v. Commonwealth, 219 Va. 983, 986, 252 S.E.2d 370, 372 (1979)). By analogy, intimidation should be no different.
Although, as the Supreme Court of Virginia stated in Commonwealth v. Bower, 264 Va. 41, 563 S.E.2d 736 (2002), " t 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," the fear of bodily harm must be of a sufficient degree to overcome the mind of the victim and "overbear her will." 264 Va. at 45, 563 S.E.2d at 738; Sutton, 228 Va. at 663, 324 S.E.2d at 670. Accordingly, the degree of intimidation must depend upon the facts and circumstances of each particular case. See Bower, 264 Va. at 46, 563 S.E.2d at 738; see also Jones, 219 Va. at 986, 252 S.E.2d at 372; Mings v. Commonwealth, 85 Va. 638, 640-41, 8 S.E. 474, 475 (1889); Wactor, 38 Va. App. at 382-83, 564 S.E.2d at 163-64.
This case is simply not, as the majority implies, similar to Sutton and Bower. Sutton involved a man's conviction for the rape of his physically impaired, fifteen-year-old niece, who was in his custody. Sutton, 228 Va. at 658-59, 324 S.E.2d at 667. Although Bower directly addressed the issue of intimidation, it involved a man who was convicted of animate object sexual penetration of his thirteen-year-old daughter. Bower, 264 Va. at 43-44,
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