James David Hazelwood v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA Record No. 2013-24-1 JAMES DAVID HAZELWOOD v. COMMONWEALTH OF VIRGINIA Present: Judges AtLee, Chaney and Bernhard Argued at Norfolk, Virginia Opinion Issued June 9, 2026 FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON Michael A. Gaten, Judge Marisa E. Mancini, Assistant Public Defender (Brooke N. Carroll, Assistant Public Defender, on briefs), for appellant. Kelly L. Sturman, Assistant Attorney General (Jason S. Miyares,1 Attorney General, on brief), for appellee. PUBLISHED OPINION BY JUDGE DAVID BERNHARD James David Hazelwood appeals the circuit court’s denial of his motion to strike two counts of obscene sexual display (Code § 18.2-387.1), and three counts of violation of a protective order (Code § 18.2-60.4). Hazelwood argues the evidence was insufficient to prove he engaged in explicitly simulated acts of masturbation, contending that conviction requires conduct that a reasonable observer would perceive as an unambiguous imitation of the physical act of masturbation, not merely a clothed grab or hostile gesture involving the genital area. He further asserts the evidence was insufficient to prove his conduct was obscene and, as to the protective order convictions, insufficient to prove his conduct amounted to “contact.” 1 Jay C. Jones succeeded Jason S. Miyares as Attorney General on January 17, 2026.  This Court reverses and dismisses the obscene sexual display convictions. Under Code § 18.2-387.1, to constitute an “explicitly simulated” act of masturbation, the conduct must, as perceived by a reasonable observer, unambiguously imitate the physical act of masturbation. The word “simulated” sets the threshold: the conduct must assume the appearance of masturbation itself, not merely suggest or allude to it. The word “explicitly” demands more: the simulation must be clear and unambiguous, not merely crude or hostile. These words, read in combination, require conduct that a reasonable observer could not plausibly mistake for anything other than an imitation of masturbation. In determining whether that standard is met when the charged conduct involves clothed contact with the genital area, this Court considers the following objective indicia:2 (1) a sustained, repetitive, or stroking motion of the hand over or upon the genital area, as distinguished from a single grab, shake, or thrust; (2) verbal conduct, sounds, or facial expressions consistent with sexual arousal or solicitation rather than hostility or contempt; and/or (3) circumstances that foreclose a reasonably plausible nonprurient explanation, such as an established adversarial relationship between the defendant and the target. For purposes of this indicium, an adversarial relationship is “established” only where the record contains objective evidence of documented prior conflict, such as a prior protective order, prior criminal complaint, prior judicial proceeding, or a sustained course of hostile conduct reflected in the testimony of percipient witnesses. A defendant’s post-hoc assertion of antipathy toward the target, uncorroborated by the record, is insufficient to invoke this indicium. Together, these indicia are evidentiary guideposts, not 2 This Court emphasizes that the three indicia set out above are not intended to suggest that hostile conduct and prurient conduct are mutually exclusive categories. A defendant’s conduct may be hostile in manner and prurient in character simultaneously. The indicia are guideposts for determining whether the physical act, viewed objectively, rises to the level of an unambiguous simulation of masturbation, not whether the conduct was sexual in nature in any broader sense. -2- additional elements of the offense; no single indicium is alone dispositive or exclusive of consideration of other probative evidence; and the third indicium operates as a contextual lens, not a categorical defense. For ease of reference, this Court refers to these as the first indicium (the character of the hand movement over the genital area), the second indicium (accompanying verbal conduct, sounds, or facial expressions consistent with sexual arousal or solicitation), and the third indicium (relational context, including any documented adversarial history that bears on whether a reasonable observer would perceive a prurient rather than non-sexual hostile purpose). The weight accorded the third indicium is therefore proportional to the degree to which the first two indicia leave the character of the act in genuine equipoise, and where the first or second indicium is strongly satisfied, as when the record establishes a sustained, repetitive stroking motion or verbal conduct plainly consistent with sexual arousal, the existence of a prior adversarial relationship does not, standing alone, negate the explicitly simulated character of the conduct. The question here is whether, taken together, the evidence excludes a reasonable hypothesis of a hostile, nonprurient gesture beyond a reasonable doubt. We hold the evidence was insufficient to support the two obscene sexual display convictions. No reasonable observer would have perceived Hazelwood’s conduct, a brief, clothed grab-and-shake directed at a known adversary in a context of longstanding hostile confrontation, as an unambiguous imitation of masturbation, actual or feigned; the convictions therefore fail the “explicitly simulated” requirement. The evidence was also insufficient to establish that the conduct, considered as a whole, had as its dominant theme an appeal to the prurient interest in sex, as the obscenity element independently requires. This Court, however, affirms the convictions for violation of a protective order. “Contact” under the protective order statutes at issue encompasses both direct and indirect contacts intentionally aimed by the respondent at the petitioner. The evidence raised factual questions for the jury, the jury resolved those questions, and its determinations were not plainly wrong. -3- Accordingly, we may not disturb the circuit court’s judgment convicting Hazelwood of the protective order violations. BACKGROUND In August and September of 2019, summonses were issued charging Hazelwood with two violations of Code § 18.2-387.1 (actual or explicitly simulated acts of masturbation), one violation of Code § 18.2-603 (stalking), and three violations of Code § 18.2-60.4 (violation of protective orders). A warrant was issued in April of 2020 for a fourth violation of a protective order.3 Hazelwood was originally tried in the Hampton General District Court. He appealed the convictions to the Hampton Circuit Court where a trial de novo was held on November 6, 2024. Hazelwood now appeals his five convictions entered by the circuit court, which were based on incidents occurring on May 25, 2019, June 10, 2019, July 22, 2019, September 2, 2019, and April 15, 2020. Collectively, these incidents involved Hazelwood, Jessica Mattson, Charles Double, and Melody Double. At the time of the incidents, Hazelwood lived on East Cummings Avenue.4 The Double siblings5 both lived near Hazelwood’s house at the time of the incidents. Both siblings had had some issues with Hazelwood leading up to the original institution of this case. Melody testified that she and Hazelwood “have been neighbors since [she] was a child.” 3 Hazelwood was acquitted of one protective order violation charge and of the stalking charge. 4 Mattson, Charles’s girlfriend, testified that in 2019, Hazelwood lived on East Curry Street in the City of Hampton. It appears that Mattson misspoke because East Curry Street does not exist in Hampton, although North Curry Street does exist in Hampton. Additionally, based on the map admitted into evidence and on the protective orders, it appears that Hazelwood actually lived on East Cummings Avenue. 5 The siblings are referred to by their first names, Charles and Melody, in this opinion. -4-  I. Overview of the Incidents A. May 25, 2019 Melody testified that on May 25, 2019, she was driving on East Cummings Avenue and “had to stop in front of the house directly next to” Hazelwood’s house “because there’s a stop sign.” “[A]ll of a sudden, [she] heard somebody yell, [‘]Hey, girl,[’] . . . followed by unintelligible words.” Melody did not hear what the person was yelling other than “Hey, girl.” When asked who the person yelling was, Melody responded, “It was James Hazelwood on his porch as I passed by in front of his house.” “[A]s [she] looked over, he was waving with one hand, like gesturing as he yelled. And the other, he was touching his penis and shaking it up and down through his clothes. It was not visible.” She testified that she was about 30 to 40 feet away from Hazelwood. Melody noticed Hazelwood “[b]ecause of him yelling and gesturing for [her].” After hearing Hazelwood say “Hey, girl,” Melody looked toward him “and saw what he was doing and [she] just looked away.” When asked for more detail as to what Hazelwood was doing, Melody responded, “He was grabbing his genital area, clearly holding something through his pants, and shaking up and down aggressively” while “[s]taring at me.” Melody testified that when this was happening, she felt “[a]larmed,” “[k]ind of scared,” and “[f]reaked out.” On cross examination, Melody testified that the car windows were down, and she did not have the radio on. She was not able to hear what Hazelwood said other than “Hey, girl,” and she did not hear him make sexual statements to her. She stated that this incident occurred around noon. Melody did not recall other neighbors being out. Hazelwood did not place his hands inside of his pants, and he never physically exposed himself. She testified that she looked away “probably after about two seconds.” -5-  B. June 10, 2019 Melody testified that on June 10, 2019, she was driving on North Curry Avenue. Her car windows were down, and the radio was off. As she was driving, she saw Hazelwood run out onto the sidewalk and grab “his penis or genitals and shak[e] up and down while yelling.” She further clarified that she saw Hazelwood “grabbing at his penis and shaking, like aggressively.” He made this gesture over his clothing, and he never put his hand inside his pants. Melody looked away “pretty quickly.” She did not know what Hazelwood yelled other than “Hey” and “just sped up and kept going.” Hazelwood “was looking at [her] while he ran onto the sidewalk.” Melody testified this incident made her feel “alarmed and freaked out.” She testified this incident occurred during the day and that she could not recall whether any other people were around. C. July 22, 2019 On July 8, 2019, the Hampton General District Court issued a preliminary protective order against Hazelwood, stating that Hazelwood “shall not commit acts of violence, force, or threat or criminal offenses that may result in injury to person or property” and that he “shall have no contact of any kind with the Petitioner,” Charles Double. The preliminary protective order required Hazelwood to appear in court for the full protective order hearing. On July 22, 2019, while Charles was waiting to get into the Hampton General District Court for the hearing on the full protective order, Hazelwood walked past Charles and said “bitch.” Charles testified that at the time, he “was with Melody and the rest of [his] family and other witnesses as well.” Charles was about 10 to 12 feet away from Hazelwood. On cross-examination, Charles stated that before Hazelwood said “bitch,” Charles “observed him talking to himself or muttering to himself.” When asked, “And then so in passing, you hear the word bitch?,” Charles responded, “No. That wasn’t it. This was directed directly at me.” Charles stated that Hazelwood was looking at him but affirmed that he did not refer to Charles by name or make any specific threats towards Charles. The Hampton -6- General District Court issued a full protective order at the July 22, 2019 hearing, and that order was in effect until July 21, 2021. The protective order again stated that Hazelwood “shall have no contact of any kind with” Charles. D. September 2, 20196 On September 2, 2019, Charles was driving on North Willard Avenue with Mattson in the passenger seat around 10:45 a.m. Charles, who was on the way to work, had to make a U-turn to go back to his house. On the way to his house, Charles observed Hazelwood as he “ran out into his yard, both middle fingers in the air, screaming obscenities in front of his home on Cummings.” Charles was not able to make out any specific words Hazelwood yelled, and the vehicle was “[w]ithin a hundred feet” of Hazelwood. Charles testified he did not recall anybody else present on the street at that time. Mattson testified she saw Hazelwood running in his yard, like he was running toward us from his yard, and he had both his arms in the air with middle fingers at us. We had the windows down and it sounded like he was shouting at us, but I can’t discern what he said specifically. I just know it was aimed towards us. She further testified that Hazelwood “had direct eye contact with Charlie and I.” E. April 15, 2020 While the protective order was still in effect, Charles was in his neighbor’s yard speaking with the neighbor on April 15, 2020. “Hazelwood was standing between his house and his neighbor to the left, and he had his hands in his pants, . . . yelling . . . [‘]Hey, fuck boy,[’] with his hands in his pants, grabbing on himself.” Charles’s attention was drawn to Hazelwood by “[h]im yelling, [‘]Hey, fuck boy.[’]” Charles testified that Hazelwood was looking “[i]n my direction.” 6 In August of 2019, Mattson also obtained a two-year protective order prohibiting Hazelwood from having any contact with Mattson or engaging in criminal offenses that may injure Mattson. The conviction for violation of a protective order based on the September 2, 2019 incident, however, was only for the protective order taken out by Charles. -7- Charles was “about 120 feet away” from Hazelwood, and he did not hear Hazelwood say anything else. II. Motion to Strike and Sentencing After the Commonwealth rested, Hazelwood moved to strike all of the charges. As to the simulated masturbation charges, Hazelwood argued that those charges require a showing of mimicked “stimulation of the genitals with the hand for sexual pleasure.” He asserted there was no evidence that he was actually sexually aroused or that he engaged in the act for sexual pleasure. Further, Hazelwood argued grabbing is not enough for masturbation, which “require[s] more of the stimulation of himself.” Hazelwood also asserted the Commonwealth failed to prove that he “intentionally [or obscenely] engaged in this act as simulated masturbation.” As to the protective order violations, Hazelwood argued the Commonwealth failed to prove that he “intentionally and knowingly attempted to contact or did contact Charles Double.” With respect to the July 22, 2019 incident, Hazelwood and Charles were at the courthouse where both were legally obligated to be for the protective order hearing. Hazelwood only said the word “bitch” in passing and made no indication that the word was directed at Charles. There was no evidence showing that Hazelwood intended for Charles to hear the comment or that he was aware that Charles could hear him. With respect to the September 2, 2019 incident, Hazelwood argued there was no evidence showing that he knew who was in the vehicle or that the gesture was directed at someone in particular. Finally, regarding the April 15, 2020 incident, the record contains no evidence Hazelwood’s statement was directed at Charles rather than at the neighbor with whom Charles was speaking. The Commonwealth countered that, as to the simulated masturbation charges, there is evidence that Hazelwood drew Melody’s attention to him by yelling and then proceeded to grab his crotch to keep her attention. With respect to the July 22, 2019 protective order violation, the -8- Commonwealth noted that Charles had specifically testified that the “bitch” comment was made directly to him. As to the September 2, 2019 incident, the Commonwealth noted Mattson’s testimony that Hazelwood was looking directly at her and Charles when making the gesture. Finally, with respect to the April 15, 2020 incident, the Commonwealth argued that Charles’s testimony indicated that Hazelwood was looking at Charles after saying “Hey, fuck boy.” The circuit court denied the motion to strike. Hazelwood did not present any evidence in his defense and instead renewed his motion to strike, incorporating the arguments from his first motion to strike. The circuit court denied the renewed motion to strike, noting that whether Hazelwood’s behavior underlying the simulated masturbation charges was simply a “rude gesture” as opposed to simulated masturbation was a question for the jury. The jury found Hazelwood guilty of two charges of simulating masturbation in public based on the May 25, 2019 and June 10, 2019 incidents. Additionally, the jury found Hazelwood guilty of three charges of violation of a protective order taken out by Charles based on the July 22, 2019, September 2, 2019, and April 15, 2020 incidents. On November 6, 2024, the Hampton Circuit Court sentenced Hazelwood to 12 months of incarceration with 12 months suspended on each of the simulating masturbation convictions, 12 months with 10 months suspended on the violation of a protective order charge based on the July 22, 2019 incident, 12 months with 8 months suspended on the violation of a protective order charge based on the September 2, 2019 incident, and 12 months with 6 months suspended on the violation of a protective order charge based on the April 15, 2020 incident. Hazelwood thus received a total of 12 months of active incarceration. On each conviction, Hazelwood was also placed under supervision and ordered to complete a mental health assessment, follow any recommended treatment, and complete an anger management program. He now appeals the denial of the motion to strike. -9-  ANALYSIS I. Standard of Review “A motion to strike challenges whether the evidence is sufficient to submit the case to the jury.” Lawlor v. Commonwealth, 285 Va. 187, 223 (2013). “Whether the evidence adduced is sufficient to prove each of [the statutory] elements is a factual finding, which will not be set aside on appeal unless it is plainly wrong.” Linnon v. Commonwealth, 287 Va. 92, 98 (2014) (quoting Lawlor, 285 Va. at 223-24). Applying the inquiry, this Court “review[s] the evidence in the ‘light most favorable’ to the Commonwealth, the prevailing party in the trial court.” Commonwealth v. Cady, 300 Va. 325, 329 (2021) (quoting Commonwealth v. Hudson, 265 Va. 505, 514 (2003)). This Court “discard[s] the evidence of the accused in conflict with that of the Commonwealth, and regard[s] as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom.” Id. (quoting Commonwealth v. Perkins, 295 Va. 323, 323-24 (2018)). “This Court ‘does not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’” Smith v. Commonwealth, 296 Va. 450, 460 (2018) (quoting Perkins, 295 Va. at 327). Instead, “the relevant question is, upon review of the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting Perkins, 295 Va. at 327). On appeal, this Court “may neither find facts nor draw inferences that favor the losing party that the factfinder did not.” Commonwealth v. Garrick, 303 Va. 176, 182 (2024). The question of “[w]hat the elements of the offense are” is one of statutory interpretation, which this Court reviews de novo. Linnon, 287 Va. at 98 (quoting Lawlor, 285 Va. at 223). “When construing a statute, our ‘primary objective,’ as always, is ‘to ascertain and give effect to legislative intent’ from the words of the statute.” Turner v. Commonwealth, 295 Va. 104, 108 - 10 - (2018) (quoting Lawlor, 285 Va. at 236). This Court “give[s] those words ‘their ordinary meaning, unless it is apparent that the legislative intent is otherwise.’” Id. (quoting Phelps v. Commonwealth, 275 Va. 139, 142 (2008)). Moreover, this Court “assume[s] that the legislature chose, with care, the words it used when it enacted the relevant statute.” Alger v. Commonwealth, 267 Va. 255, 261 (2004) (quoting Barr v. Town & Country Props., Inc., 240 Va. 292, 295 (1990)). “[T]he burden is on the Commonwealth to prove every essential element of the offense beyond a reasonable doubt.” Washington v. Commonwealth, 273 Va. 619, 623 (2007) (quoting Dowdy v. Commonwealth, 220 Va. 114, 116 (1979)). The factfinder “is entitled to consider all of the evidence, including circumstantial evidence, . . . in reaching its determination.” Commonwealth v. Moseley, 293 Va. 455, 463 (2017) (quoting Hudson, 265 Va. at 512-13). Yet, “[i]n order for inferences to amount to evidence they must be inferences based on facts that are proved, and not inferences based on other inferences.” Smith v. Commonwealth, 185 Va. 800, 819 (1946). “[I]t is not sufficient that the evidence creates a suspicion or probability of guilt; but it must go further and exclude every reasonable hypothesis except that of guilt.” Id. at 820 (quoting Sutherland v. Commonwealth, 171 Va. 485, 494 (1938)). “This ‘reasonable hypothesis of innocence’ principle is ‘simply another way of stating that the Commonwealth has the burden of proof beyond a reasonable doubt.’” Commonwealth v. Wilkerson, 304 Va. 92, 101-02 (2025) (quoting Moseley, 293 Va. at 463). That formulation is thus not a burden distinct from proof beyond a reasonable doubt; it is the practical expression of that burden in cases built on circumstantial inference, and it compels reversal when the record supplies no evidentiary basis to reject a reasonable hypothesis of innocence beyond a reasonable doubt; it does not require acquittal whenever innocence is merely supposable. Cuffee v. Commonwealth, ___ Va. ___, ___ (Apr. 16, 2026). That principle operates symmetrically: it demands affirmance when the - 11 - jury’s rejection of a hypothesis of innocence rests on an evidentiary basis, see id. at ___; it demands reversal when the jury’s rejection rests on arbitrary disregard of uncontroverted evidence. Id. at ___. Where the Court considers the factfinder’s rejection of a hypothesis of innocence, it does not reweigh the evidence but rather enforces the Commonwealth’s burden of proof. See Commonwealth v. Richerson, ___ Va. ___, ___ (Apr. 23, 2026). In this way, Cuffee and Richerson calibrate appellate review to the quality of the evidentiary record. The de novo review of what the statutory elements require is further guided by additional principles of construction. “Where possible, a statute should be construed with a view toward harmonizing it with other statutes.” Newton v. Commonwealth, 21 Va. App. 86, 90 (1995) (quoting Morris v. Morris, 4 Va. App. 539, 543 (1987)). In keeping with that principle, “[w]hen . . . multiple legislative enactments share ‘a common purpose or [are part of] the same general plan[,]’ we ‘consider [them] as in pari materia’ and attempt to reconcile them.” Anderson v. Clarke, 302 Va. 400, 409 (2023) (third, fourth, and fifth alterations in original) (quoting Morgan v. Commonwealth, 301 Va. 476, 481 (2022)). “[O]ther Code sections using the same phraseology may be consulted in determining the meaning of a statute.” Newton, 21 Va. App. at 90 (quoting Branch v. Commonwealth, 14 Va. App. 836, 839 (1992)); see also Barson v. Commonwealth, 284 Va. 67, 74 (2012) (“[W]hen the legislature uses the same term in separate statutes, that term has the same meaning in each unless the General Assembly indicates to the contrary.” (quoting Jenkins v. Mehra, 281 Va. 37, 48 (2011))). In addition, penal statutes “must be strictly construed with regard to any reasonable ambiguity,” but “we will not apply ‘an unreasonably restrictive interpretation of the statute’ that would subvert the legislative intent expressed therein.” Turner, 295 Va. at 109 (quoting Alger, 267 Va. at 259); see also Harris v. Commonwealth, 83 Va. App. 571, 581 (2025). - 12 -  When the Commonwealth’s proof of a statutory element rests on circumstantial evidence, the standard governing circumstantial evidence becomes an integral part of the sufficiency analysis. Taylor v. Commonwealth, 61 Va. App. 13, 30 (2012). The appellate inquiry therefore focuses not on whether a hypothesis of innocence was thinkable but on whether the factfinder’s rejection of that hypothesis was grounded in the evidence or lacked an evidentiary basis in the record. Cuffee, ___ Va. at ___. Treating any conceivable possibility of innocence as dispositive would improperly transform the Commonwealth’s burden into proof beyond all doubt, which Virginia law does not require. Id. at ___. Circumstantial proof must be “consistent with guilt and inconsistent with innocence.” Commonwealth v. Smith, 259 Va. 780, 783 (2000) (quoting LaPrade v. Commonwealth, 191 Va. 410, 418 (1950)). The Commonwealth, however, “need only exclude reasonable hypotheses of innocence that flow from the evidence, not those that spring from the imagination of the defendant.” Hamilton v. Commonwealth, 16 Va. App. 751, 755 (1993); accord Cuffee, ___ Va. at ___ (“the principle applies only to reasonable hypotheses”). Nevertheless, “the reasonable hypothesis formulation ‘does not leave the jury at liberty to guess, and where a fact is equally susceptible of two interpretations, one of which is consistent with the innocence of the accused, they cannot arbitrarily adopt that interpretation which incriminates him.’” Cuffee, ___ Va. at ___ (quoting Burton v. Commonwealth, 108 Va. 892, 899 (1908)). When, however, the jury has a reasonable evidentiary basis for rejecting the hypothesis of innocence, that principle affords the defendant no relief. Id. at ___; Smith, 185 Va. at 820; Moody v. Commonwealth, 28 Va. App. 702, 706 (1998). These principles govern the statutory analysis that follows. - 13 -  II. Explicitly Simulated Acts of Masturbation Under his first assignment of error, Hazelwood asserts the evidence was insufficient to support the convictions for obscene sexual display. Looking at common dictionary definitions, Hazelwood asserts “[m]asturbation is generally defined as the touching or stimulation of one’s own genitals for the purpose of sexual stimulation or gratification.” As such, to be convicted of an explicitly simulated act of masturbation, there must be evidence that the defendant simulated both the physical manipulation of his genitals and the purpose of sexual gratification. Such an act must be “explicit,” meaning “without any ambiguity or vagueness behind the act or its purpose.” Because “Hazelwood never made any sexual statements or any sexual noises . . . suggestive of actual or feigned sexual gratification,” “never exposed his penis, pretended to ejaculate, or otherwise gave any indication that he was physically aroused,” the evidence was insufficient to convict him of obscene sexual display for either incident. Hazelwood concedes that genital exposure is not required, but maintains that any physical manipulation must be accompanied by apparent sexual purpose, relying on § 18.2-390(3)’s reference to “physical contact in an act of apparent sexual stimulation or gratification.” The Commonwealth responds that Code § 18.2-390(3) is instructive in interpreting the phrase “explicitly simulated acts of masturbation,” as it defines “sexual conduct” as “actual or explicitly simulated acts of masturbation . . . or physical contact in an act of apparent sexual stimulation or gratification with a person’s clothed or unclothed genitals . . . .” According to the Commonwealth, the language in Code §§ 18.2-390(3) and 18.2-387.1 demonstrates that the conduct prohibited under § 18.2-387.1 is the “intentional and obscene movement of the genitals while eliciting attention from others rather than unintentional, brief contact that a person might make to their groin to scratch an itch or fix a zipper.” Exposure of the genitals is not required, nor is a defendant required to “become gratified by his behavior because [the Code] penalizes the - 14 - obscene and explicit simulation of masturbation, when done in public for the purpose of being seen by others.” Under Code § 18.2-387.1, “[a]ny person who, while in any public place where others are present, intending that he be seen by others, intentionally and obscenely as defined in § 18.2-372, engages in actual or explicitly simulated acts of masturbation, is guilty of a Class 1 misdemeanor.” It appears that most, if not all, cases addressing this statute involve actual masturbation as opposed to explicitly simulated acts of masturbation, and those cases did not define “masturbation.” See Harris, 83 Va. App. at 577, 589 (holding that “prosecution under Code § 18.2-387.1 requires proof of multiple acts [of actual or explicitly simulated masturbation] to support multiple convictions” and reversing one of two convictions for the same conduct where two women observed defendant who was naked and who “turned toward them and stroked his penis ‘vigorously’ while making eye contact with each woman”); Johnson v. Commonwealth, 75 Va. App. 475, 478 (2022) (affirming conviction under Code § 18.2-387.1 where librarian looked through window of defendant’s cell and saw him “actively stroking his [exposed] erect penis while looking directly at her”). Turning to the definition of “explicitly simulated acts of masturbation,” this Court looks to the plain meaning of the phrase. The word “simulate” means “to give or assume the appearance or effect of often with the intent to . . . imitate.” Simulate, Merriam-Webster.com, https://www.merriam-webster.com/dictionary/simulate (last visited May 7, 2026); see also simulation, Black’s Law Dictionary 1669 (12th ed. 2024) (“An assumption of an appearance that is feigned, false, or deceptive.”). That definition carries an inherent threshold: the conduct must assume the appearance of the act itself, not merely suggest or allude to it. “Explicitly” means “clearly and without any vagueness or ambiguity,” Explicitly, Merriam-Webster.com, https://www.merriam-webster.com/dictionary/explicitly (last visited May 7, 2026), and is not mere surplusage, Alger, 267 Va. at 261; its inclusion demands that the simulation be clear and - 15 - unambiguous. “Masturbation” means “erotic stimulation especially of the genital organs commonly resulting in orgasm and achieved by manual or other bodily contact.” Masturbation, Merriam-Webster.com, https://www.merriam-webster.com/dictionary/masturbation (last visited May 7, 2026). Code § 18.2-387.1 does not require genital exposure for conviction. Read together, these terms require that a defendant, without ambiguity, imitate the physical act of masturbation itself—the manual stimulation of the genitals in a manner that a reasonable observer would perceive as an unambiguous imitation of that act, as distinguished from a crude, hostile, or indeterminate gesture that happens to involve the genital area. This Court recognizes that a gesture directed at another person and involving the defendant’s genitals may be simultaneously hostile in character and sexual in implication, and, indeed, that the hostility of such a gesture may derive in part from its degrading sexual connotation. The analytical distinction drawn here is not that hostile conduct cannot also be sexual, but that the statute requires the conduct unambiguously to simulate the physical act of masturbation itself, not merely carry a sexual implication or offend on sexual grounds. Where the sexual dimension of the conduct is inferential rather than explicit, the General Assembly has addressed that conduct elsewhere. See Code § 18.2-390(3). Clothed, transient contact with the genital area, without any objective indicia sufficient to exclude a reasonable nonprurient explanation, is insufficient to satisfy the explicitly simulated acts of masturbation requirement. The threshold the General Assembly set in Code § 18.2-387.1 is higher, and it is that threshold, not the offensiveness of the act, that the evidence here fails to satisfy. The statutory requirement that the defendant intend to be seen “by others” in a public place also informs the third indicium (relational context). Where the conduct is directed at a specific known person rather than at the public generally, the pre-existing relationship between the defendant and that person is directly relevant to how a reasonable observer, situated in that person’s position, - 16 - would perceive the act. See Code § 18.2-387.1. The third indicium thus draws its legitimacy not from judicial gloss but from the statute’s own command that the reasonable-observer inquiry be conducted in the full context of the parties’ circumstances and relationship. Where the conduct admits of two equally plausible interpretations, one consistent with an explicit simulation and the other consistent with only a hostile and crude gesture toward a neighbor, the evidence does not prove the simulation was clear and without vagueness or ambiguity. See Smith, 259 Va. at 783. The evidence fails this unified standard. Neither incident presented facts from which a reasonable observer would have perceived Hazelwood as masturbating, actually or feigned, or from which that observer could plausibly have concluded the conduct was anything other than a hostile gesture. He was clothed throughout, the contact lasted approximately two seconds on one occasion and was similarly brief on the other, no sounds or statements consistent with sexual arousal accompanied either incident, and both incidents arose within a longstanding adversarial confrontation with a known neighbor. The hostile-gesture hypothesis at issue here is not a speculative alternative conjured by the defense. It flows directly from the testimony of the Commonwealth’s own witnesses: a longstanding adversarial neighborhood relationship, a target toward whom Hazelwood harbored demonstrated animosity, conduct accompanied by no sexual statement or sound, and gestures only brief in observation. Where the reasonable hypothesis of innocence arises from the Commonwealth’s own uncontradicted evidence, not from speculation by the defense, and the concurrent circumstances point toward the non-prurient explanation rather than away from it, the record provides no evidentiary basis upon which a jury could reject that hypothesis without resorting to conjecture unsupported by the record. Cuffee, ___ Va. at ___. A hypothesis of innocence is reasonable precisely when it “flow[s] from the evidence itself,” Richerson, ___ Va. at ___ (quoting Turner, 218 Va. at 148), and here it flowed directly from the testimony of the - 17 - Commonwealth’s own witnesses, uncontradicted at every point. Because the record supplied no evidentiary basis on which to reject that hypothesis beyond a reasonable doubt, the evidence was insufficient to sustain the convictions. The structure of Code § 18.2-390(3) confirms this reading. That section defines “sexual conduct” in relevant part as “actual or explicitly simulated acts of masturbation . . . or physical contact in an act of apparent sexual stimulation or gratification with a person’s clothed or unclothed genitals.” Code § 18.2-390(3) (emphases added). The General Assembly purposely used “or” to separate these two categories. See Murphy v. Commonwealth, 277 Va. 221, 226 (2009) (“We consider that language in its entirety, rather than by isolating particular words or phrases.”). Had the legislature intended that any contact with clothed genitals could satisfy the first category, the second category, “physical contact in an act of apparent sexual stimulation or gratification,” would be wholly superfluous. This Court will not render any portion of a statute meaningless by construction. See Alger, 267 Va. at 261. The two clauses therefore reach categorically different conduct: the first requires an unambiguous physical imitation of masturbation itself; the second reaches the broader category of contact that merely appears sexual. The Commonwealth’s theory, that aggressively grabbing and shaking clothed genitals while yelling at a passerby satisfies the “explicitly simulated masturbation” prong, conflates these distinct categories and renders the legislature’s deliberate textual distinction without effect. The second category of Code § 18.2-390(3), “physical contact in an act of apparent sexual stimulation or gratification with a person’s clothed or unclothed genitals,” is precisely the provision that would reach conduct like Hazelwood’s: aggressive clothed-genital contact that appears sexual. That the General Assembly placed such conduct in a lower-threshold “apparent” category, separate from and subordinate to “explicitly simulated masturbation,” indicates the legislature understood this type of conduct as insufficient for the first category. - 18 - Code § 18.2-387.1 incorporated only the first category, the unambiguous physical simulation of masturbation itself. Accepting the Commonwealth’s theory would eliminate the second category’s independent work, and this Court will not reduce any part of a statute to surplusage. See Alger, 267 Va. at 261. The difference between the two categories in Code § 18.2-390(3) also illuminates the kind of conduct the General Assembly understood “explicitly simulated masturbation” to reach. The second category, “physical contact in an act of apparent sexual stimulation or gratifica