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Mohajer v. Commonwealth9/17/2002
563 S.E.2d at 736-38.
The case at bar is inapposite. Indeed, each of the aforementioned cases were based upon facts which established that matters such as the conduct of the defendant, as well as the victim's age, size, custodial or familial relationship to the defendant, and/or physical impairment, placed the victim in a uniquely vulnerable position, evidencing a degree of force or intimidation sufficient to overbear her mind and will.
Here, unlike those cases, there was no evidence, direct or circumstantial, of any conduct by Mohajer that would have tended to impose psychological pressure on Ward sufficient to overcome her mind or will. Indeed, although Mohajer told Ward he was a police officer and showed her what he purported to be a badge, Ward merely testified that this fact made her feel more comfortable with Mohajer. There was no evidence that the statement placed pressure upon her to comply with his advances. Moreover, there was no evidence submitted to establish that Ward's age, her size and/or the relationship between herself and Mohajer in any way contributed to her submission to the assault, nor was there any evidence to demonstrate that, under the circumstances, Ward was uniquely vulnerable or susceptible to such pressure. Instead, the record indicates, at most, that the act, which preceded the forcible sodomy, was accomplished by surprise and that Ward was thus, confused and scared, and unable to indicate that she did not consent to Mohajer's conduct.
Accordingly, I would find that, on these facts, the evidence was insufficient as a matter of law to support the jury's verdict on the count of animate object penetration, and I would reverse Mohajer's conviction and dismiss on this count.
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