Michael David Bailey v. Commonwealth of Virginia, 0370161

Appellant Michael David Bailey (19) was charged with indecent liberties (Code § 18.2-370) after offering to “smack” a 8–10-year-old child (A.V.) on his bare bottom while visiting a 17‑year‑old friend. Other felony counts were reduced to misdemeanors to which Bailey pleaded guilty.
Parties proceeded to a bench trial on stipulated facts: a neighbor would testify she saw Bailey place his hands on clothing covering A.V.’s genitals; Bailey admitted telling A.V. he would buy expensive ice cream if he could "smack" A.V.’s bare bottom; defense witness S.B. would testify she heard only a comment about ice cream and did not see the touching.
The trial court found the evidence sufficient to convict Bailey of indecent liberties (proposing to "feel or fondle" a child under 15) and withheld a final finding pending a pre-sentence report; after a hearing the court entered a finding of guilt.
On appeal Bailey argued that his proposition to "smack" the child did not meet the statutory requirement to propose to "feel or fondle" under Code § 18.2-370(A)(3), because "smack" is a sharp slap (not a caress/fondling).
The Court of Appeals reviewed statutory interpretation de novo and sufficiency of evidence under the presumption that the trial court’s judgment is correct.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether proposing to "smack" a child satisfies the statute’s requirement to propose to "feel or fondle" sexual/genital parts under Va. Code § 18.2-370(A)(3)	Commonwealth: "Feel" and "fondle" are alternative acts; proposing to smack the child constitutes proposing to touch/feel the genital/sexual parts and thus violates § 18.2-370	Bailey: "Smack" denotes a sharp slap, not "fondle;" words "feel or fondle" should be read as equivalent and not satisfied by a smack	Court: "Feel" and "fondle" are distinct; the disjunctive "or" permits either act; a proposal to smack (i.e., touch) the child suffices to prove proposing to "feel or fondle" — conviction affirmed

Kelly v. Commonwealth, 41 Va. App. 250, 584 S.E.2d 444 (appellate standard of review presuming trial court correctness)
Davis v. Commonwealth, 39 Va. App. 96, 570 S.E.2d 875 (standard for presuming trial court judgment correct)
Grimes v. Commonwealth, 288 Va. 314, 764 S.E.2d 262 (questions of law reviewed de novo)
Loudoun Cty. Dep’t of Soc. Servs. v. Etzold, 245 Va. 80, 425 S.E.2d 800 (statutory construction: give plain meaning)
Nicholson v. Commonwealth, 56 Va. App. 491, 694 S.E.2d 788 (courts may not add or subtract statutory words)
Branch v. Commonwealth, 14 Va. App. 836, 419 S.E.2d 422 (prefer plain, rational statutory meaning; penal statutes strictly construed but avoid absurd results)
Bunch v. Commonwealth, 225 Va. 423, 304 S.E.2d 271 (use of disjunctive "or" indicates alternative means of proving an element)