Background
James David Hazelwood was convicted by a Hampton Circuit Court jury of two counts of obscene sexual display under Code § 18.2-387.1 and three counts of violating a protective order under Code § 18.2-60.4, arising from a series of incidents between May 2019 and April 2020 involving his neighbors, siblings Charles and Melody Double, and Charles’s girlfriend Jessica Mattson. On two occasions in May and June 2019, Hazelwood — while standing outside his home — called out to Melody as she drove past and, over his clothing, grabbed and shook his genital area for a matter of seconds. Those incidents formed the basis of the obscene sexual display charges. At no point did Hazelwood expose himself, make sexual sounds, or utter sexually explicit statements.
The three protective order convictions stemmed from separate incidents: saying “bitch” while passing Charles at the courthouse during a protective order hearing; running into his yard and extending both middle fingers as Charles drove by; and yelling “Hey, fuck boy” while standing with his hands inside his pants in the direction of Charles, who was roughly 120 feet away in a neighbor’s yard. After a de novo bench-and-jury trial in November 2024, Hazelwood was sentenced to 12 months of active incarceration and placed under supervision with requirements for mental health assessment and anger management. He appealed, challenging the denial of his motions to strike on all five counts.
At trial, Hazelwood argued that his clothed, brief gestures lacked the unambiguous sexual character required by the obscene sexual display statute and that the Commonwealth had not proven intentional “contact” with Charles for purposes of the protective order charges. The circuit court denied the motions to strike, characterizing the question of whether the conduct was a “rude gesture” versus simulated masturbation as one for the jury.
The Court’s Holding
The Court of Appeals reversed and dismissed both obscene sexual display convictions, holding that Code § 18.2-387.1 requires conduct that a reasonable observer would perceive as an unambiguous imitation of the physical act of masturbation — not merely a crude or hostile gesture involving the genital area. The court parsed the statutory phrase “explicitly simulated acts of masturbation” carefully: “simulate” sets the threshold (the conduct must assume the appearance of the act itself), while “explicitly” demands that the simulation be clear and without vagueness or ambiguity. Together, those words require conduct that a reasonable observer could not plausibly mistake for anything other than an imitation of masturbation.
To guide that inquiry in clothed-contact cases, the court identified three objective indicia: (1) a sustained, repetitive, or stroking hand motion over the genital area, as opposed to a single grab, shake, or thrust; (2) accompanying verbal conduct, sounds, or facial expressions consistent with sexual arousal or solicitation rather than hostility; and (3) relational context — specifically, documented adversarial history (prior protective orders, prior criminal complaints, or judicial proceedings) that forecloses a reasonably plausible nonprurient explanation. These indicia are evidentiary guideposts, not additional elements. Applied to the facts, the court found the evidence fell short: both incidents featured only a brief clothed grab-and-shake, no sexual statements or sounds, and a longstanding adversarial relationship with a known neighbor. The reasonable hypothesis of a hostile, nonprurient gesture flowed directly from the Commonwealth’s own uncontradicted evidence, leaving no evidentiary basis for the jury to reject it beyond a reasonable doubt. The court independently held the evidence also failed to establish that the conduct’s dominant theme was an appeal to the prurient interest in sex, as the obscenity element requires.
The court affirmed all three protective order convictions. It held that “contact” under the applicable statutes encompasses both direct and indirect contacts intentionally aimed by the respondent at the petitioner. The incidents — the directed “bitch” comment at the courthouse, the double-middle-finger display while running toward Charles’s vehicle, and the “Hey, fuck boy” yell while grabbing himself in Charles’s direction — raised factual questions the jury permissibly resolved. Because those determinations were not plainly wrong, the appellate court declined to disturb them.
Key Takeaways
- Under Virginia Code § 18.2-387.1, a clothed grab-and-shake of the genital area directed at a known adversary during a dispute is legally insufficient to constitute an “explicitly simulated act of masturbation” — the statute demands conduct that a reasonable observer could not plausibly interpret as anything other than an imitation of masturbation itself.
- The court established a three-indicium framework for clothed-conduct cases: character of the hand movement (sustained/stroking vs. a single grab); verbal or auditory cues consistent with sexual arousal; and documented adversarial relational context — with the weight of the third indicium proportional to how much the first two leave the act’s character in genuine equipoise.
- A reasonable hypothesis of innocence arising from the Commonwealth’s own uncontradicted evidence — not from speculation by the defense — compels reversal; the jury cannot arbitrarily reject it without an evidentiary basis in the record.
- “Contact” under Virginia’s protective order statutes covers indirect, intentionally aimed contact, so acts like directed expletives and hostile gestures toward a protected person from a distance are sufficient to sustain a conviction even without physical proximity or explicit words addressed by name.
Why It Matters
This decision is the first published Virginia appellate authority to define the “explicitly simulated” threshold for clothed-conduct prosecutions under Code § 18.2-387.1, filling a gap that prior cases — which almost uniformly involved actual, exposed masturbation — left open. The three-indicium framework gives practitioners and trial courts a structured, evidence-anchored analysis for distinguishing criminal simulation from offensive but legally insufficient hostile gestures, and it signals that prosecutorial overreach into the ambiguous space between crude confrontation and sexual display will be checked on sufficiency review.
The opinion also sharpens Virginia’s “reasonable hypothesis of innocence” doctrine in a notable way: it treats the Commonwealth’s own uncontradicted evidence as capable of generating — and indeed compelling recognition of — a reasonable hypothesis of innocence, rather than allowing a jury to reject such a hypothesis without any evidentiary basis. Read alongside the court’s citations to the Supreme Court’s recent decisions in Commonwealth v. Cuffee and Commonwealth v. Richerson, the opinion signals a more disciplined appellate review of sufficiency in circumstantial cases, with direct implications for how Virginia prosecutors build the record in public-indecency and related prosecutions.