Charles W. Simmons v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Moon, Senior Judges Cole and Duff
CHARLES W. SIMMONS
v. 	Record No. 0460-94-3 	MEMORANDUM OPINION* BY
CHIEF JUDGE NORMAN K. MOON
COMMONWEALTH OF VIRGINIA 	AUGUST 29, 1995
FROM THE CIRCUIT COURT OF THE CITY OF SALEM
G. O. Clemens, Judge
Barry M. Tatel (Neil E. McNally; Key and Tatel, P.C.,
on brief), for appellant.
Monica S. McElyea, Assistant Attorney General
(James S. Gilmore, III, Attorney General,
on brief), for appellee.
Charles W. Simmons appeals his conviction for sodomy by or
with the mouth in violation of Code § 18.2-361. 	On appeal,
Simmons contends that the Commonwealth's evidence was
insufficient to convict him for oral sodomy and that the trial
court erred when it gave jury instruction number seven. 	We hold
that jury instruction number seven was improper because it
singled out for emphasis a part of the evidence tending to
establish a pivotal fact in the jury's determination of Simmons's
guilt or innocence. 	The instruction was also a misstatement of
the law.
When a trial judge instructs the jury in the law, he or
she may not "single out for emphasis a part of the
evidence tending to establish a particular fact." . . .
The danger of such emphasis is that it gives undue
prominence by the trial judge to the highlighted
evidence and may mislead the jury.
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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Terry v. Commonwealth, 5 Va. App. 167, 170, 360 S.E.2d 880, 882
(1987) (citations omitted); also see Woods v. Commonwealth, 171
Va. 543, 199 S.E. 465 (1938) (reversible error for a trial judge
to single out for emphasis a part of the evidence tending to
establish a particular fact). 	Furthermore, "[a] statement made
in the course of a judicial decision is not necessarily proper
language for a jury instruction." 	Snyder v. Commonwealth, 220
Va. 792, 797, 263 S.E.2d 55, 58 (1980); see also Yeager v.
Commonwealth, 16 Va. App, 761, 766, 433 S.E.2d 248, 251 (1993).
In this case, instruction number seven commented on a piece
of circumstantial evidence tending to establish a key element of
the offense charged against Simmons. 	The instruction was taken
in part from the Model Jury Instructions, but was further based
on language found in Ryan v. Commonwealth, 219 Va. 439, 444-45,
247 S.E.2d 698, 702 (1978). 	The instruction gave undue
prominence to the duration of the alleged sexual act which was
but one of many pieces of circumstantial evidence the jury could
have considered in reaching a verdict. 	Thus, there existed a
danger that the jury would be misled because instruction seven
permitted the jury to base its decision on an inference or
presumption that duration alone was sufficient to prove
penetration.
In holding as we do, we note that instruction number seven
was not taken verbatim from the text of Ryan, but more closely
reflects one of the case's headnotes. 	Id. at 439, 247 S.E.2d at
698. 	Ryan never established that duration alone could, as a

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matter of law, prove penetration. 	Rather, the Court's comment
emphasized "the victim's account of Ryan's protracted assault,"
id. at 444-45, 247 S.E.2d at 702 (emphasis added), from which the
jury could reasonably infer that penetration occurred. 	The Court
noted that, among other pieces of circumstantial evidence, "the
condition, position, and proximity of the parties . . . may
afford sufficient evidence of penetration to support a charge of
sodomy by cunnilingus." 	Id. (citation omitted).
Thus, for purposes of considering the sufficiency of the
evidence to support penetration the language quoted from Ryan is
instructive in what legal effect to give to the evidence of the
duration of the encounter. 	However, it is not proper for the
jury to be instructed that duration alone is sufficient to prove
penetration.
Therefore, we reverse Simmons's conviction and remand his
case for a new trial.
Reversed and remanded.