Background
Perry, then 18 years old, met J.S., age 11–12, through friendship with her older sister. In May 2022, when J.S. was 14, she accompanied Perry to his home to help build a fence. On May 10, instead of waiting for her sister, J.S. rode alone with Perry. During the drive and after arriving at his house, Perry engaged in a series of sexual advances: he asked J.S. to kiss him, which she reluctantly did; he exposed his penis and masturbated while telling her she had given him an erection; he asked her to perform oral sex; he touched her breasts under her clothing; and he touched her vagina over her clothing. Throughout these encounters, J.S. repeatedly refused and attempted to move away from Perry. Before her sister arrived, Perry asked J.S. not to tell anyone. That evening, J.S. disclosed the incident to her mother.
Perry was indicted on four counts of indecent liberties with a child under age 15 and one count of aggravated sexual battery. He was convicted on all counts. Perry appealed, raising three issues: that multiple indecent liberties convictions violated double jeopardy; that the trial court abused its discretion by recalling the victim for additional testimony; and that the evidence was insufficient to prove the force element of aggravated sexual battery.
The Court’s Holding
The court affirmed all convictions. On the double jeopardy challenge, the court held that Virginia Code § 18.2-370(A), which prohibits any person over 18 from committing distinct enumerated sexual acts with a child under 15, uses disjunctive language (“any”) indicating legislative intent to authorize a separate unit of prosecution for each distinct act. Perry’s three separate acts—exposing his genitals, proposing oral sex, and proposing fondling of J.S.’s genitals—constituted three discrete violations, not a single continuous offense. Adopting Perry’s interpretation would allow defendants to escape accountability by committing multiple sexual assaults against the same victim in quick succession, which the court rejected as contrary to statutory intent and justice.
On the witness-recall issue, the court found no abuse of discretion. The Commonwealth had informed the trial court that J.S. was subject to recall and requested that she not be excused. When recalled on day two, her supplemental testimony clarified and expanded upon her prior testimony rather than merely repeating it. The trial court properly exercised its discretion to permit the recall.
On the sufficiency-of-evidence argument, the court declined to review Perry’s claim that insufficient evidence proved the force, threat, or intimidation element of aggravated sexual battery. Perry had failed to properly preserve this specific argument at trial; his motion to strike asserted only a general challenge that the Commonwealth failed to prove “any of the elements,” not a targeted challenge to the force prong. The court also rejected Perry’s invocation of the “ends of justice” exception, which requires affirmative evidence of innocence or lack of a criminal offense—a standard Perry did not meet by merely asserting lack of proof.
Key Takeaways
- Multiple convictions for distinct indecent liberties acts against the same victim do not violate double jeopardy when the statute authorizes discrete units of prosecution for each prohibited act.
- Trial courts have discretion to permit supplemental witness testimony; no abuse of discretion occurs when the Commonwealth recalls a witness for clarification and expansion of prior testimony.
- Defendants must specifically preserve legal arguments at trial; general or abstract references to statutory elements do not preserve specific sufficiency-of-evidence challenges for appeal.
Why It Matters
This decision clarifies Virginia’s approach to prosecuting serial sexual misconduct within a single criminal episode. By holding that each distinct sexual act constitutes a separate unit of prosecution, the court prevents perpetrators from evading accountability through temporal and geographic proximity to a single victim. The ruling rejects the counterintuitive result that a defendant could commit multiple distinct sexual offenses—exposure, solicitation of oral sex, and fondling—within minutes and escape multiple convictions simply by characterizing them as parts of one continuous transaction.
The decision also reinforces procedural discipline: appellate review is available only for issues specifically raised below, and sufficiency challenges must target the precise element at issue rather than rely on general invocations of evidentiary gaps. The holding balances finality with accuracy by applying a high bar for the “ends of justice” exception, requiring affirmative proof of innocence rather than mere gaps in the Commonwealth’s proof.