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Present:    Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and
Lemons, JJ., and Compton,∗ S.J.
JAMES ROBERT WELCH, JR.
v.    Record No.  051563                                        OPINION BY JUSTICE DONALD W. LEMONS
April  21,  2006
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether the Commonwealth’s
evidence of a  “sexual relationship” between James R. Welch,
Jr. and a  14-year-old girl is sufficient to support his
conviction under Code  §  18.2-63 for carnal knowledge of a
child.    For the reasons stated below, we will reverse the
judgment of the Court of Appeals of Virginia.
I.    Facts and Proceedings Below
At trial, the Commonwealth’s evidence established that
James Welch, a  27-year-old man, had engaged in unspecified
“sexual relations” with Amanda, a  14-year-old babysitter for
his daughter.    At the close of the Commonwealth’s case-in-
chief, the defendant moved to strike the evidence because the
Commonwealth failed to carry its burden to make a  “specific
showing of certain kinds of acts” constituting carnal
knowledge.    The trial court overruled the motion, stating:
“[I]n all candor, it, probably, would have been better if it
∗ Senior Justice Compton participated in the hearing and
decision of this case before his death on April  9,  2006.




had been more particular, more graphic, if you will; this
description of what they did.    But, nonetheless  .  .  . I’m gonna
[attribute] to the term  ‘sexual relations’ what that term
means.    And  - and, unfortunately, there’s no reason for me to
think that this child doesn’t know what that term means.”
Subsequently, after Welch presented his evidence, the trial
court overruled a renewed motion to strike.    Welch was
convicted and was sentenced to five years incarceration.
Welch appealed to the Court of Appeals of Virginia, where
his conviction was affirmed in an unpublished opinion.    Welch
v. Commonwealth, Record No.  1427-04-3, slip op. at  5  (June  28,
2005).    Welch appeals to this Court upon one assignment of
error:                                                                 “the Virginia Court of Appeals erred in finding that
the acts possibly included in the term  ‘sexual relations’ are
synonymous with the legal definition of  ‘sexual intercourse.’  ”
II.    Analysis
A.    Standard of Review
Welch challenges the sufficiency of the evidence to
support his conviction.    It is well established that, on
appeal, this Court must view the evidence and all reasonable
inferences flowing therefrom in the light most favorable to the
prevailing party at trial, here the Commonwealth.    Commonwealth
v. Norman,  268 Va.  539,  545-46,  604 S.E.2d  82,  85  (2004);
Commonwealth v. Hudson,  265 Va.  505,  514,  578 S.E.2d  781,  786
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(2003).    We will affirm the trial court's judgment unless it is
plainly wrong or without evidence to support it.    Code  §  8.01-
680; Barrett v. Commonwealth,  268 Va.  170,  179,  597 S.E.2d  104,
108  (2004).
B.    Evidence Presented at Trial
The Commonwealth’s case-in-chief at trial consisted of
testimony provided by Amanda and Investigator Jones.    Amanda
testified that she had been  “dating” Welch.    When the
Commonwealth asked her if she had a  “sexual relationship” with
Welch, a term used by the Commonwealth throughout its direct
examination of Amanda, she responded affirmatively:
Q:    Did you have any sexual relationship
with Mr. Welch?
A:    Yes, sir.
Q:    At that location?
A:    Yes, sir.
Q:    Now, how many times would you have had a
sexual relationship with him, at that
location in Augusta?
A:    Over twenty.
At no point during Amanda’s testimony did the Commonwealth ask
her to define what she understood to be a  “sexual
relationship.”
Investigator Candace L. Jones’ notably brief testimony
simply established that she had obtained letters between Welch
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and Amanda from the Commonwealth’s Attorney’s office, and
that, when she confronted Welch during her investigation,
Welch denied being sexually intimate with Amanda.
Significantly, there was no testimony about the content of the
letters and they were not admitted into evidence.    The
Commonwealth rested its case after Jones’ testimony.
During the defendant’s case-in-chief, the Commonwealth
elicited testimony from Amanda’s mother on cross-examination
that Welch admitted to her that he was  “having relations” with
Amanda.    When pressed about what this meant, the following
exchange occurred:
Q:    And did he  - what did he tell you, exactly,
when he said  “he’s having relations”?    Did he
tell you as to whether they were having sex
together?
A:    No.    He said just what I had suspected was
true.
Q:    And what did you suspect?
A:    That they were having sexual relations.
Q:    Okay.    All right.    And he did not give you
any details as to how he would have sexual
relations with your daughter?
A:    No, he did not.
Welch testified on his own behalf, and denied having a
“sexual relationship” and  “being with” with Amanda.    During
cross-examination of Welch, the Commonwealth introduced into
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evidence one letter written by Welch to Amanda during his
incarceration that stated in part:
Well, I was doing fine till someone got into
my s**t, and read your letter to me.    Then
Ronnie talked to one of the wifes  [sic] of
one of the guys on my block  .  .  . and told
her I was a baby rapist so she told her
husband and he told the whole jail that you
and I were f**king now I don’t think I’ll
ever get out cause everyone is trying to
kill me  .  .  . I do love you and even my last
thought will be of you and my last breath
will say your name, Amanda.
In closing arguments, the Commonwealth asserted that the
testimony provided by Amanda and the defendant’s  “confession”
to Amanda’s mother were sufficient to support the conviction.
C.    Carnal Knowledge Statute
Welch was convicted under Code  §  18.2-63 which provides:
If any person carnally knows, without the use
of force, a child thirteen years of age or
older but under fifteen years of age, such
person shall be guilty of a Class  4 felony
.  .  . For the purposes of this section  .  .  .
(ii)  “carnal knowledge” includes the acts of
sexual intercourse, cunnilingus, fellatio,
anallingus, anal intercourse, and animate and
inanimate object sexual penetration.
It is well settled that penal statutes are strictly construed
against the Commonwealth and in favor of a citizen’s liberty.
Martin v. Commonwealth,  224 Va.  298,  300,  295 S.E.2d  890,  892
(1982)  (citing Cox v. Commonwealth,  220 Va.  22,  25,  255 S.E.2d
462,  464  (1979)).                                                   “Such statutes may not be extended by
implication; they must be applied to cases clearly described by
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the language used.”    Id.  (citing Price v. Commonwealth,  209 Va.
383,  385-86,  164 S.E.2d  676,  678  (1968)).    Because  “carnal
knowledge” is defined by particular acts in the statute,
Welch’s conviction can stand only if the facts proven by the
Commonwealth satisfy the elements of one or more of those
specified acts.    The Commonwealth conceded that the act in
question in this case was sexual intercourse.
The elements constituting certain acts of  “carnal
knowledge” are well defined in our case law.    A common element
in each act, whether intercourse or sodomy, is that the
Commonwealth has the burden to prove beyond a reasonable doubt
that penetration, however slight, has occurred.    See e.g.,
Moore v. Commonwealth,  254 Va.  184,  189,  491 S.E.2d  739,  741
(1997)  (“[I]t is universally held that under an indictment
charging statutory rape of a child  .  .  . the prosecution must
prove that there has been an actual penetration to some extent
of the male sexual organ into the female sexual organ”)  (citing
McCall v. Commonwealth,  192 Va.  422,  426,  65 S.E.2d  540,  542
(1951)); Horton v. Commonwealth,  255 Va.  606,  613,  499 S.E.2d
258,  261-62  (1998)  (to prove cunnilingus, the Commonwealth must
prove that there was  “penetration of any portion of the vulva”
by the mouth or tongue); Ashby v. Commonwealth,  208 Va.  443,
444,  158 S.E.2d  657,  658  (1968)  (testimony that the boy placed
his mouth  “on” defendant’s penis did not establish that the
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penis was  “in” the boy’s mouth which is required to prove the
penetration element of fellatio).
As the foregoing cases illustrate, typically appeals
challenging the sufficiency of the evidence under the carnal
knowledge statute involve a technical question of whether a
particular act constituted  “penetration.”    That is not the case
here, where the record is devoid of any details regarding
sexual acts between Welch and Amanda.    The simple question
before this Court is whether the Commonwealth can sustain a
conviction for carnal knowledge based on testimony that the
defendant and the child engaged in a  “sexual relationship.”
The simple answer is  “no;” more particularity is required.
This case aptly illustrates that vague terms, such as
“sexual relationship,” invite speculation that cannot suffice
for proof beyond a reasonable doubt.    Our case law regarding
proof required for conviction of carnal knowledge makes it
quite clear that proof of penetration must be elicited to
support a conviction.    Moore,  254 Va. at  189,  491 S.E.2d at
741.    See also Horton,  255 Va. at  613,  499 S.E.2d at  261-62;
Ashby,  208 Va. at  444,  158 S.E.2d at  658.    The Commonwealth did
not ask Amanda to explain her understanding of  “sexual
relationship,” nor did it inquire about what she did  “over
twenty” times with Welch.    We are left to speculate about what
actually occurred.
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The letter written by Welch does not assist the
prosecution.    The Commonwealth argued on appeal that Welch’s
letter is evidence against him because he did not deny the
rumors circulating around the jail about his relationship with
Amanda.    We do not agree.    The rule the Commonwealth seeks to
invoke has been stated as follows:
When a statement tending to incriminate one
accused of committing a crime is made in his
presence and hearing and such statement is not
denied, contradicted, or objected to by him, both
the statement and the fact of his failure to deny
are admissible in a criminal prosecution against
him, as evidence of his acquiescence in its
truth. The basis of such rule is that the natural
reaction of one accused of the commission of a
crime or of implication therein is to deny the
accusation if it is unjust or unfounded.
Dowden v. Commonwealth,  260 Va.  459,  469,  536 S.E.2d  437,  442
(2000)  (citations omitted).    The letter written by Welch fails
to satisfy the rule quoted above in two respects.    First, the
rule requires that the accusation be  “made in  [the accused’s]
presence and hearing.”    However, Welch’s letter does not reveal
that a direct confrontation of this sort occurred.    Rather, it
states that  “Ronnie talked to one of the wifes  [sic] of one of
the guys on my block  .  .  . and told her I was a baby rapist so
she told her husband and he told the whole jail.”    At most, the
letter recites to Amanda what other people say are the charges
against Welch.    Second, the rule applies only when the accused
fails to deny, contradict, or object in response to the
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accusation.    Obviously, Welch’s letter was not intended to be
his response to the rumors he recited; it was merely a
communication to Amanda.    As a result, Welch’s letter is not
evidence of an admission of guilt.
There may be a wide range of acts that could be fairly
understood by a  14-year-old as sexual in nature, but some of
those acts would not be prohibited under the carnal knowledge
statute.    That is precisely why a conviction under our carnal
knowledge statute has always required specific evidence that
leaves no reasonable doubt that the particular act performed is
one of the acts proscribed.    Such evidence did not exist in
this case.
III.    Conclusion
The Commonwealth failed to carry its burden of proof in
the case at bar.    A bare allegation of  “sexual relations,”
without more, does not prove one of the particular acts
constituting  “carnal knowledge” under Code  §  18.2-63.    We will
reverse the judgment of the Court of Appeals and dismiss the
indictment.
Reversed and dismissed.
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