text:                     COURT OF APPEALS OF VIRGINIA
  
  
  Present: Chief Judge Fitzpatrick, Judges Benton, Coleman,
       Willis, Elder, Bray, Annunziata, Overton, Bumgardner
            and Lemons
  Argued at Richmond, Virginia
  
  
  CLIFTON MASON, S/K/A
   CLIFTON B. MASON
                                            MEMORANDUM OPINION * BY
  v.        Record No. 0309-97-2           JUDGE SAM W. COLEMAN III
                                              NOVEMBER 10, 1998
  COMMONWEALTH OF VIRGINIA
  
                         UPON A REHEARING EN BANC
  
           FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
                     Oliver A. Pollard, Jr., Judge
  
            Neil Kuchinsky (Neil Kuchinsky & Associates,
            on brief), for appellant.
  
            Kathleen B. Martin, Assistant Attorney
            General (Mark L. Earley, Attorney General, on
            brief), for appellee.
  
  
  
       In a bench trial, appellant, Clifton Mason, was convicted of
  
  four counts of taking indecent liberties with a minor in
  
  violation of Code § 18.2-370.    On appeal, he contends the
  
  evidence was insufficient to support the convictions.      A divided
  
  panel of this Court found the evidence insufficient as to all
  
  four counts.    We granted a petition to rehear en banc two of
  those counts.   Upon rehearing en banc, we find that the evidence
  
  was sufficient to prove that Mason exposed himself to A.W. and
  
  T.B. within the meaning of Code § 18.2-370.       For this reason, we
  
  affirm those convictions.
       *
        Pursuant to Code § 17-116.010 this opinion is not
  designated for publication.
                                BACKGROUND
  
       "On appeal, we review the evidence in the light most
  
  favorable to the Commonwealth, granting to it all reasonable
  
  inferences fairly deducible therefrom."     Martin v. Commonwealth,
  
  4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
  
       Appellant was convicted of taking indecent liberties with
  
  A.W. and T.B. in violation of Code § 18.2-370.    At the time of
  
  the alleged incidents, both victims were under the age of
  
  thirteen.
       At trial, T.B. testified that appellant touched her breasts
  
  and vagina with his hands, pulled down her underpants, and rubbed
  
  his penis on her vagina.   She further testified that appellant
  
  also tried to insert his penis into her vagina, but he did not
  
  succeed because she moved away from him.    The incident happened
  
  at night in an unlighted room.
  
       A.W. testified that appellant touched her breasts with his
  
  hands, pulled down her underwear to her knees, and touched her
  
  between her legs with his "private part."    A.W. further testified
  
  that appellant tried to insert his "private part" into her
  
  "private part."   Eventually, appellant stopped trying to
  
  penetrate her and left the room.    This incident also occurred at
  
  night in an unlighted room.
  
       At the conclusion of all the evidence, appellant argued that
  
  his conduct did not constitute taking indecent liberties as
  
  defined by Code § 18.2-370.    The sole issue is whether the
  
  
  
                                   - 2 -
  evidence is sufficient to show that defendant exposed himself
  
  within the meaning of Code § 18.2-370. 1
  
                               ANALYSIS
  
       When the sufficiency of evidence is challenged on appeal, an
  
  appellate court must review the evidence that tends to support
  
  the conviction and must uphold the conviction unless it is
  
  plainly wrong or lacks evidentiary support.    See Code § 8.01-680;
  
  Commonwealth v. Jenkins, 255 Va. 516, 520, 499 S.E.2d 263, 265
  
  (1998).   "If there is evidence to support the convictions, the
  
  reviewing court is not permitted to substitute its own judgment,
  
  even if its opinion might differ from the conclusions reached by
  
  the finder of fact at the trial."      Id.
  
       T.B. testified that Mason pulled down her underpants and
  
  "rubbed his penis on her vagina."   Although T.B. did not testify
  
  that she visually observed Mason's penis, she testified that
  
  Mason "rubbed" his penis on her.    Similarly, A.W. testified that
  
  Mason "touched her between her legs with his `private part.'"
  
  The inference which the fact finder was entitled to draw from
  
  A.W.'s testimony was that Mason touched her between her legs with
  
  his penis.   See e.g., Fisher v. Commonwealth, 228 Va. 296, 298,
  
  321 S.E.2d 202, 203 (1984) (drawing the inference that "private
       1
        The Commonwealth contends on brief and at oral argument
  that the appellant is procedurally barred by Rule 5A:18 from
  raising a separate sufficiency claim as to these two counts.
  However, we granted the Commonwealth's petition to reconsider the
  merits of the trial court's convictions. The panel
  satisfactorily addressed the procedural bar issue, and we decline
  to reconsider those arguments.
  
  
  
  
                                 - 3 -
  parts" in a girl's testimony described her vagina); Crump v.
  
  Commonwealth, 20 Va. App. 609, 611-12, 460 S.E.2d 238, 239 (1995)
  
  (drawing inference that "private parts" in child's testimony
  
  referred to genitalia).   The Commonwealth offered no evidence
  
  that A.W. or T.B. visually observed Mason's genitalia.
  
       Any person at least eighteen years old who, "with lascivious
  
  intent, . . . knowingly and intentionally:    (1) Expose[s] his or
  
  her sexual or genital parts to any child under the age of
  
  fourteen years to whom such person is not legally married"
  
  commits the crime of taking indecent liberties with children.
  
  Code § 18.2-370.
       Mason argues that "expose" requires proof of visual
  
  perception.   Although the victims felt Mason's penis touching
  
  them, he contends that because the victims did not visually
  
  observe the penis, he did not "expose" himself.     As defined in
  
  the Webster's Third New International Dictionary 802 (1991),
  
  "expose" means "to lay open to view:    lay bare:   make known:   set
  
  forth:   exhibit, display."   Common usage of the word "expose"
  
  also encompasses more than "lay open to view."      For example, a
  
  person is exposed to a toxin even though the person may have no
  
  visual perception of the substance.     "Exposure" means not only to
  
  "lay open to view" but also to "lay open to feel or to touch."
  
       The Virginia Supreme Court has interpreted the word "expose"
  
  in the context of a Charlottesville city ordinance.      See Wicks v.
  Charlottesville, 215 Va. 274, 276, 208 S.E.2d 752, 754-55 (1974)
  
  
  
  
                                  - 4 -
  (upholding conviction under indecent exposure ordinance where
  
  witness saw defendant holding his hand in front of his pants and
  
  urinating on public street but could not actually see organ being
  
  held by hand).   In that case, the Supreme Court declined to adopt
  
  an interpretation that would restrict indecent exposure to
  
  incidents where the offending exposure was actually observed by
  
  one or more persons.   See id.   Similarly, we decline to adopt the
  
  more restrictive definition of "exposure" as suggested by Mason
  
  in the context of Code § 18.2-370.
       The evidence proved that Mason physically touched the
  
  victims' genitals with his bare penis, and this conduct was
  
  sufficient to support the trial court's finding that Mason
  
  "knowingly and intentionally . . . expose[d] . . . his genital
  
  parts" in violation of Code § 18.2-370.   Accordingly, we affirm
  
  the trial court's conviction with respect to these offenses.
  
                                                           Affirmed.
  
  
  
  
                                   - 5 -
  Benton, J., dissenting.
  
       In accord with well established principles of statutory
  
  construction, "penal statutes must be strictly construed against
  
  the Commonwealth and applied only to those cases clearly falling
  
  within the language of the statute."    Branch v. Commonwealth, 14
  
  Va. App. 836, 839, 419 S.E.2d 422, 424 (1992).   When applying
  
  this principle, we must adhere to the equally "important
  
  principle . . . that '[w]ords in a statute are to be construed
  
  according to their ordinary meaning, given the context in which
  
  they are used.'"   City of Virginia Beach v. Board of Supervisors
  
  of Mecklenburg Co., 246 Va. 233, 236, 435 S.E.2d 382, 384 (1993)
  
  (quoting Grant v. Commonwealth, 223 Va. 680, 684, 292 S.E.2d 348,
  
  350 (1982)).   Thus, the act that is charged "must be within both
  
  the letter and the spirit of the statute; and . . . [the accused]
  
  is entitled to the benefit of any reasonable doubt in the
  
  construction of the statute."    Price v. Commonwealth, 209 Va.
  
  383, 385, 164 S.E.2d 676, 678 (1968).
  
       In pertinent part, Code § 18.2-370 provides:
            Any person eighteen years of age or over,
            who, with lascivious intent, shall knowingly
            and intentionally: (1) Expose his or her
            sexual or genital parts to any child under
            the age of fourteen years to whom such person
            is not legally married or propose that any
            such child expose his or her sexual or
            genital parts to such person or (2)
            [Repealed.] (3) Propose that any such child
            feel or fondle the sexual or genital parts of
            such person or propose that such person feel
            or fondle the sexual or genital parts of any
            such child; or (4) Propose to such child the
            performance of an act of sexual intercourse
            or any act constituting an offense under
  
  
                                  - 6 -
             § 18.2-361 . . . shall be guilty of a Class 6
             felony.
  
  
       For purposes of this appeal, the relevant conduct proscribed
  
  in Code § 18.2-370(1) is "[e]xpose . . . sexual or genital
  
  parts."   Thus, by its plain and unambiguous terms, Code
  
  § 18.2-370 speaks only to the exposure of an accused's sexual or
  
  genital parts to a child or propositioning a child to expose his
  
  or her sexual or genital parts to the accused.    Code § 18.2-370
  
  does not encompass cases where the accused touches the child or
  
  the child is caused to touch the accused.   The word "expose"
  
  ordinarily means to lay open to view.    See Webster's Third New
  
  International Dictionary 802 (1991).    I find no authority for the
  
  proposition that "expose" means "to lay open to feel or touch."
  
       The evidence did not prove that the children saw or had the
  
  opportunity to see appellant's genitals during the sexual
  
  incidents they described.   None of the children testified that
  
  appellant exposed his genitals to their sight.    One child
  
  testified that appellant attempted to put his penis in her
  
  vagina, and the second child testified that appellant touched her
  
  between her legs with his "private part."   At all times relevant
  
  to these incidents, however, the room was dark.    No evidence
  
  proved the children saw or could have seen appellant's genitals.
  
  The other two children testified that the appellant touched or
  
  fondled their breasts and vaginas with his hand.   Thus, the
  
  evidence failed to establish that appellant exposed his genitals
  
  to any of the four children.   Consequently, I would hold that
  
  
                                 - 7 -
  appellant's actions, as related by the children, did not fall
  
  within the conduct prohibited by Code § 18.2-370.
  
       The Commonwealth argues that it is irrelevant whether the
  
  children "visually . . . observed his penis."    The Commonwealth
  
  contends that by touching the child with his penis, appellant
  
  violated the statutory proscription.     To prevail on that theory,
  
  however, the Commonwealth "must show that the words of the
  
  [statute] distinctly cover the case.     No conviction can be had if
  
  the words [of the statute] are merely equally capable of a
  
  construction that would, and one that would not, inflict the
  
  penalty."     McKay v. Commonwealth, 137 Va. 826, 830, 120 S.E. 138,
  
  139 (1923).
  
       When we consider the ordinary meaning of the word "expose"
  
  within the context of Code § 18.2-370, we must examine both the
  
  1981 amendment to Code § 18.2-370 and the statutes enacted in
  
  lieu of the language deleted from Code § 18.2-370.    In 1981, the
  
  General Assembly amended Code § 18.2-370 to eliminate subsection
  
  (2), which read:    "In any manner fondle or feel, or attempt to
  
  fondle or feel, the sexual or genital part of any such child, or
  
  the breast of any such female child."    The proscriptions formerly
  
  contained in subsection (2) are now found in other statutes.
  
  Code § 18.2-67.3(A), which the General Assembly enacted in 1981
  
  in its revision of the sexual abuse statutes, reads as follows:
  
  "An accused shall be guilty of aggravated sexual battery if he or
  
  she sexually abuses the complaining witness, and . . . [t]he
  
  
  
                                   - 8 -
  complaining witness is less than thirteen years of age."    Code
  
  § 18.2-67.10(6) defines "sexual abuse" as "an act committed with
  
  the intent to sexually molest, arouse, or gratify any person
  
  where . . . [t]he accused intentionally touches the complaining
  
  witness's intimate parts or material directly covering such
  
  intimate parts."   I believe the General Assembly would not have
  
  transferred prohibition against such conduct from Code § 18.2-370
  
  to Code § 18.2-67.3 if it had intended to continue such
  
  prohibition under subsection (1) of Code § 18.2-370.    See Roger
  
  D. Groot, Criminal Offenses and Defenses in Virginia 387 (3rd ed.
  
  1994) ("Section 18.2-370 formerly criminalized fondling; that
  
  portion has been repealed and is found in § 18.2-67.3.").
  
       Although the Commonwealth and the majority cite Wicks v.
  
  Charlottesville, 215 Va. 274, 208 S.E.2d 752 (1974), as support
  
  for an expanded definition of the word "expose," that case does
  
  not lend comfort to the Commonwealth's argument in this case.
  
  Wicks was prosecuted because he "urinated on a public street in
  
  the presence of others."   Id. at 275, 208 S.E.2d at 754.   On
  
  appeal from his conviction, the Supreme Court interpreted a
  
  Charlottesville ordinance that codified the common law offense of
  
  indecent exposure in a public place.   Id.   See also Noblett v.
  
  Commonwealth, 194 Va. 241, 244-45, 72 S.E.2d 241, 243 (1952).
  
  The Court noted that "indecent exposure" means "'[e]xposure to
  
  sight of the private parts of the body in a lewd or indecent
  
  manner in a public place.'"   Wicks, 215 Va. at 276, 208 S.E.2d at
  
  
  
  
                                 - 9 -
  754 (citation omitted) (emphasis added).   Based in significant
  
  part on this definition, the Court "construe[d] the first six
  
  words of the Charlottesville . . . Code [, 'No person shall
  
  indecently expose himself,'] as contemplating an intentional and
  
  indecent exposure in a public place where it is likely to be
  
  seen, whether actually seen by one or several persons."     Id. at
  
  276, 208 S.E.2d at 755 (emphasis added).
  
       The statute at issue in this case, Code § 18.2-370, is not a
  
  codification of a common law rule and does not parallel the
  
  ordinance addressed in Wicks.    If Wicks has any bearing on this
  
  case, it is because the Supreme Court in applying the common law
  
  principle of indecent exposure recognized the necessity of a
  
  visual connotation to "exposure" by requiring "'that the act is
  
  seen or is likely to be seen by casual observers.'"     215 Va. at
  
  275, 208 S.E.2d at 754 (emphasis added) (quoting Noblett, 194 Va.
  
  at 245, 72 S.E.2d at 243).
  
       The evidence in this case, unlike in Wicks and Noblett, did
  
  not prove that the acts occurred under circumstances where the
  
  appellant's genitals were seen or even likely to have been seen
  
  by the children.   No authority suggests that by proving the
  
  appellant touched the children with his genitals, the
  
  Commonwealth is thereby relieved of its burden of proving beyond
  
  a reasonable doubt that appellant exposed his genitals.    His
  
  genitals were neither seen, as required by the ordinary meaning
  
  of Code § 18.2-370, nor "likely to be seen," if we are required
  
  
  
                                  - 10 -
  to use the Wicks common law definition of indecent exposure in a
  
  public place.   215 Va. at 276, 208 S.E.2d at 755 (emphasis
  
  added).
  
       Simply put, the Commonwealth brought this prosecution under
  
  the wrong statute.   The Commonwealth proceeded in disregard of
  
  the General Assembly's repeal of subsection (2) from Code
  
  § 18.2-370.    Thus, for these reasons and for the reasons stated
  
  in the panel opinion issued May 5, 1998, I would reverse the
  
  convictions.
  
  
  
  
                                 - 11 -
  