Quyen Vinh Phan Le v. Commonwealth

65 Va.App. 66

774 S.E.2d 475

QUYEN VINH PHAN LE

v.COMMONWEALTH of Virginia.

Record No. 0850–14–4.

Court of Appeals of Virginia.

July 28, 2015.

Lauren Whitley, Senior Assistant Public Defender (Office of the Public Defender, on briefs), for appellant.

Susan Baumgartner, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: BEALES, McCULLOUGH and O'BRIEN, JJ.

Opinion

O'BRIEN, Judge.

In two separate bench trials, Quyen Vinh Phan Le (“appellant”) was convicted of three counts of custodial indecent liberties in violation of Code § 18.2–370.1. Appellant was found guilty of one count of custodial indecent liberties against C.L.K. and two counts of custodial indecent liberties against C.M.K.¹ The trial court acquitted appellant of a third count of custodial indecent liberties against C.M.K. The cases were consolidated for purposes of appeal.

Appellant asserts three assignments of error. He contends that “[t]he trial court erred in finding the evidence sufficient under § 18.2–370.1 as the Commonwealth did not prove beyond a reasonable doubt that [he] was not married to either [C.L.K. or C.M.K.] or that either [C.L.K. or C.M.K.] were not emancipated.” He also asserts that “[t]he trial court erred in finding that [he] had sexually abused [C.M.K.] between June 29, 2004 and July 30, 2004 as charged in the indictment.” Finally, he argues that “[t]he trial court erred in finding sufficient evidence that [he] sexually abused [C.M.K. and C.L.K.] as there was no evidence any force, threat, or intimidation was used.” We disagree. For the following reasons, we affirm the trial court.

I. BACKGROUND

Appellant was a Tae Kwon Do instructor in Northern Virginia. He coached two sisters, C.L.K. and C.M.K., who were the victims of these crimes. C.L.K. and C.M.K. trained seven days a week and competed internationally. C.M.K., who began training with appellant when she was nine or ten years old, testified that in 2002, when she was fifteen years old, her relationship with appellant began to change and became sexual. She stated that she and appellant had sexual intercourse on May 9, 2003, her sixteenth birthday, and continued to have sexual relations “probably every day.” Appellant was twenty-nine years old at the time.

Sometime between June 29 and July 30, 2004, C.M.K. thought she was pregnant and appellant took her to Planned Parenthood for a pregnancy test. When the test returned negative, appellant bought C.M.K. birth control pills and had the bills sent to his studio. The sexual relationship continued while C.M.K. was seventeen years old.

In January 2005, C.M.K. began to date someone else with the hope that appellant “would let [her] go.” She continued to attend appellant's Tae Kwon Do school and when appellant discovered that she was seeing someone else, he required that she perform oral sex on him as a “kind of punishment.” He ultimately dismissed her from his studio in June 2006. C.M.K. testified that she was relieved when that happened.

Appellant presented evidence that he was close to C.M.K. and C.L.K.'s family. Their mother was his office manager. She had a key to the studio and was often at the studio when her daughters were there. Appellant elicited testimony from C.M.K. and C.L.K.'s younger sister, who identified a journal entry from January 2005, in which she wrote that if appellant and C.M.K. “don't get married, I'm going to be pissed.”

At the close of the Commonwealth's case, appellant made a motion to strike. He argued that the evidence was insufficient as a matter of law to establish that he committed the crimes and that the evidence was insufficient to establish that one of the offenses occurred during the time frame alleged in the indictment. Appellant also argued at his motion to strike that sexual abuse required non-consensual conduct, which the Commonwealth failed to prove. The trial court overruled the motion to strike. Appellant renewed the motion on the same grounds at the close of the evidence. Once again, the trial court overruled the motion to strike and convicted appellant of the offenses occurring in May of 2003 and July of 2004. The trial court acquitted appellant of the charge alleging an offense which occurred in January of 2005.

In the other trial, for offenses against C.L.K., she testified that she was born in 1991 and began training with appellant at age six. With appellant's coaching, C.L.K. progressed and competed internationally. She was taught to respect appellant as a “Master” and follow his commands.

When C.L.K. was sixteen, appellant began a physical relationship with her, which started by him “groping” her breasts and private areas. He told her that they needed a “strong bond” to allow her to continue to achieve her goals. C.L.K. testified that she submitted to appellant's advances because she was afraid that otherwise she would lose her opportunity to train and compete on a national level.

In 2008, when C.L.K. was seventeen, she and appellant had sex for the first time. C.L.K. testified that she and appellant had sex “countless times” during the fall of 2008. Appellant's computer contained nude pictures of C.L.K. taken May 9, 2008. In 2009, C.L.K. ended the relationship and appellant terminated her from his Tae Kwon Do school. C.L.K. testified that she begged appellant to accept her back into the school, but he demanded sexual acts in exchange.

Appellant testified that he began having sex with C.L.K. “long after she was eighteen” and that their relationship lasted merely a few months. He indicated that he had surgery in July 2008, and was physically unable to have sexual intercourse for the next three or four months. After considering the evidence, the trial court found appellant guilty of custodial indecent liberties against C.L.K. occurring between September and November of 2008.

II. ANALYSIS

A. Marriage and Emancipation

In appellant's first assignment of error, he contends that the trial court erred in finding the evidence sufficient to convict him because the Commonwealth did not prove that he was not married to the victims and that the victims were not emancipated. He argues that lack of marriage and emancipation are elements of the crimes.

The offenses against C.M.K. occurred in 2004, when the statute read as follows:

Any person eighteen years of age or older who maintains a custodial or supervisory relationship over a child under the age of eighteen ... or who stands in loco parentis with respect to such child and is not legally married to such child, and who, with lascivious intent, knowingly and intentionally [commits various acts] ... shall be guilty of a Class 6 felony.

Code § 18.2–370.1 (2001). The crimes against C.L.K. occurred in 2008, after the statute was amended. The statute in effect in 2008 states:

Any person 18 years of age or older who, except as provided in § 18.2–370, maintains a custodial or supervisory relationship over a child under the age of 18 and is not legally married to such child and such child is not emancipated who, with lascivious intent, knowingly and intentionally [commits various acts] ... shall be guilty of a Class 6 felony.

Code § 18.2–370.1. Therefore, the 2001 version of the statute applied in the case in which C.M.K. was the victim and the 2008 version applied in the case in which C.L.K. was the victim. In both versions of the statute, however, proof that the parties were not married is an element of the offense. The statute as amended in 2008 also requires the Commonwealth to prove that the minor was not emancipated at the time of the offense.

The Commonwealth contends that appellant never raised this issue in either trial and therefore, pursuant to Rule 5A:18, it is waived and cannot be considered on appeal. Appellant concedes that he did not raise the issue of the lack of evidence regarding marriage or emancipation during his motions to strike or closing argument at either trial, but nevertheless contends that his argument should be considered based on the ends of justice exception to Rule 5A:18.

Rule 5A:18 states as follows:

No ruling of the trial court ... will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice. A mere statement that the judgment or award is contrary to the law and the evidence is not sufficient to preserve the issue for appellate review.

We have held that “[a]s a precondition to appellate review, Rule 5A:18 requires a contemporaneous objection in the trial court to preserve the issue on appeal.” Thomas v. Commonwealth, 44 Va.App. 741, 750, 607 S.E.2d 738, 742, adopted upon reh'g en banc, 45 Va.App. 811, 613 S.E.2d 870 (2005). “The primary purpose of requiring timely and specific objections is to afford the trial judge a fair opportunity to rule intelligently on the issues presented, thus avoiding unnecessary appeals and reversals.” Rodriguez v. Commonwealth, 18 Va.App. 277, 284, 443 S.E.2d 419, 424 (1994). “ ‘A specific, contemporaneous objection also provides the opposing party an opportunity to address an issue at a time when the course of the proceedings may be altered in response to the problem presented.’ ” Murillo–Rodriguez v. Commonwealth, 279 Va. 64, 79, 688 S.E.2d 199, 207 (2010) (quoting Shelton v. Commonwealth, 274 Va. 121, 126, 645 S.E.2d 914, 916 (2007) ). Accordingly, “[t]he Court of Appeals will not consider an argument on appeal which was not presented to the trial court.” Ohree v. Commonwealth, 26 Va.App. 299, 308, 494 S.E.2d 484, 488 (1998).

For us to apply the ends of justice exception to the rule as appellant requests, this Court must first determine, from reviewing the record, whether a miscarriage of justice has occurred. “In order to avail oneself of the exception, a defendant must affirmatively show that a miscarriage of justice has occurred, not that a miscarriage might have occurred.” Redman v. Commonwealth, 25 Va.App. 215, 221...