Suhay v. Commonwealth

75 Va.App. 143

875 S.E.2d 82

Timothy James SUHAY

v.COMMONWEALTH of Virginia

Record No. 0664-21-3

Court of Appeals of Virginia, Salem.

JULY 19, 2022

A. Hunter Jackson (Evans Oliver PLC, on brief), for appellant.

Rosemary V. Bourne, Senior Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Present: Judges Russell,^* Friedman and Callins

OPINION BY JUDGE DOMINIQUE A. CALLINS

Timothy James Suhay appeals his convictions for three counts of electronic solicitation of a minor, in violation of Code § 18.2-374.3(C). Suhay contends that the circuit court erred in denying his request for a deferred disposition under Code § 19.2-303.6, which permits a trial court to defer adjudication of guilt for a criminal defendant who has been diagnosed with autism spectrum disorder if the court finds by clear and convincing evidence that the defendant's criminal conduct was caused by or had a direct and substantial relationship to the disorder. We hold that the circuit court did not err in finding that Suhay's solicitation of a minor was not caused by, nor had a direct and substantial relationship to, his autism spectrum disorder and that any error by the circuit court in applying the requirements of Code § 19.2-303.6 was harmless. Thus, we affirm the judgment of the circuit court.

BACKGROUND

In April 2018, the grandmother of then eleven-year-old S.H. reported to the City of Harrisonburg Police Department that she had found sexually explicit communications and photographs on a tablet computer that S.H. had been using. Harrisonburg Police Detective Greg Miller interviewed S.H. and discovered that she had been communicating with Suhay on the social media platforms Instagram and Google Hangouts. After obtaining a search warrant for both Suhay's and S.H.’s social media accounts, Detective Miller discovered a ninety-eight-page Google Hangouts chat log. The chat log revealed that Suhay, then twenty-four years old, had asked S.H. to send him nude photographs and videos of herself, had suggested to S.H. that they perform various explicit sexual acts, including sexual intercourse, had asked S.H. to fondle her genitalia on camera for him, and had sent S.H. a photograph of his exposed genitalia. During their two-day chat, Suhay repeatedly referred to S.H. as "babe" and also told her that she was "my girl" and was his girlfriend.

Several months later, Detective Miller and Special Agent Tami Ketchem approached Suhay outside his work location at a plastics factory in Charlotte, North Carolina. After being given a Miranda warning, Suhay agreed to answer their questions. Upon being told S.H.’s full name, Suhay responded that he had met S.H. on Instagram and that "I should have not talked bad to her." Suhay then admitted that he had sent a "dirty picture" to S.H. and that "I know I'm in trouble for saying that." He volunteered, "If there's a way that I can undo everything and not get in trouble for it, I would." Detective Miller then showed Suhay the Google Hangouts chat log and told Suhay that "when you look at her pictures of her face and things like that, there's no question how young she is," to which Suhay responded, "Yeah ... it should never have gotten to that point." When asked if he ever thought that S.H. was an adult, Suhay responded, "No. I knew she was younger." Although Suhay first stated he believed S.H. to be thirteen or fourteen years old, he later admitted that S.H. had "said she was ten, eleven." When asked by Special Agent Ketchem whether he knew that S.H. was ten or eleven years old while chatting with her, Suhay answered, "Yes, ma'am." Suhay was then shown the picture of his exposed genitalia that he had sent to S.H., and he admitted that he had sent the picture and then signed and dated it. Suhay was ultimately arrested and extradited to Virginia.

Suhay was charged with twelve counts of electronic solicitation of a minor under Code § 18.2-374.3(C),¹ nine of which were nolle prossed. Suhay's arraignment was held on January 11, 2021, in the Rockingham County Circuit Court. During the arraignment, defense counsel withdrew his motion to suppress the statements made by Suhay during his police interview, and Suhay entered Alford pleas to his three charges. After hearing the Commonwealth's proffer of evidence, the circuit court found that Suhay's guilty pleas were freely, voluntarily, and intelligently made and that the Commonwealth's evidence was sufficient to convict Suhay for his three charges. The circuit court did not immediately enter an adjudication of guilt, however, because defense counsel notified the court that he intended to seek a deferred adjudication under the recently enacted Code § 19.2-303.6.² The new statute permits a trial court to grant a deferred disposition to a criminal defendant who has been diagnosed with autism spectrum disorder and whose criminal conduct was caused by or had a direct and substantial relationship to the disorder. The circuit court continued the matter to April 26, 2021, for a sentencing hearing to determine whether Suhay should be granted a deferred disposition.

At Suhay's sentencing hearing, defense counsel called Dr. Lucy Guarnera, Ph.D., a licensed clinical psychologist who had diagnosed Suhay with Level 1 autism spectrum disorder ("ASD") as part of a court-ordered psychological evaluation. Dr. Guarnera testified that a person with Level 1 ASD is classified as "requiring support," that Suhay displayed the two primary symptoms of ASD, which are "persistent deficits in social communication and social interaction" and "restricted, repetitive patterns of behavior, interests, or activities," that, because Suhay was often teased by his brothers and peers, he would spend more time with younger children who were closer to his development level, that Suhay had "trouble understanding social cues indicating levels of interest in relationships," that Suhay's ASD caused him to have difficulties in transitioning to living independently from his parents, that Suhay's excessive online social media use was typical of a person with ASD, that Suhay's interactions with S.H. were indicative of his ASD because he immediately thought of her as his girlfriend and "considered their relationship to be more serious and more meaningful than it really was," and that Suhay's ASD could have caused him to be unaware of S.H.’s age because "things that would be completely obvious to another person, that could impact on the victim's age ... may not be obvious to someone with an autism spectrum disorder like Mr. Suhay."

On cross-examination, Dr. Guarnera conceded that Level 1 ASD is the mildest form of ASD, that her diagnosis of Suhay's ASD in November 2018 was the first time that Suhay had ever been diagnosed with ASD, that Suhay had never sought mental health care for any of his ASD symptoms until after his current criminal charges, that Suhay was not taking any anti-psychotic or mental health related medications to treat his ASD, that she remembered that Suhay had stated during his police interview that "he thought that [S.H.] was thirteen or fourteen and eventually learned that she was super young, like ten or eleven," that ASD is not a cognitive disorder that would have caused Suhay to have impaired intelligence in any way, that she was aware that Suhay had earned a degree at a community college with a 3.5 grade point average while working full-time at a plastics factory, where he had worked for over five years, and that she had stated in her written psychological evaluation of Suhay that "[p]articularly given the weight of the current evidence, that Mr. Suhay was aware of S.H.’s young age early in their interactions."

During the Commonwealth's closing argument, the Commonwealth's attorney stated that "even if the Court feels that the criminal conduct was caused by or had a direct substantial relationship to [Suhay's] disorder ... it is still in the Court's discretion whether or not to defer this disposition. [ Code § 19.2-303.6 ] says the Court may, not that the Court shall [grant a deferred disposition]." The Commonwealth's attorney added that "The Court may defer, the Court does not have to defer. We ask the Court to consider the position of the attorney for the Commonwealth and the views of the victim in this case." The circuit court noted that "[ Code § 19.2-303.6 ] is a new statute and this is the first time that this statute has been applied in this Court" and concluded that it would be taking the matter under advisement for four weeks before announcing its final decision.

At the final hearing on June 3, 2021, the circuit court denied Suhay's request for a deferred disposition under Code § 19.2-303.6, stating: "After reviewing the file in its entirety, I do not believe that the underlying mental health issue was the cause or established the direct or substantial relationship between the Autism and the actions." The court further stated: "I am also taking into consideration the positions of both the Commonwealth and the victim, as the statute requires. I am not going to do a deferral under [ Code § 19.2-303.6 ]." The court entered adjudications of guilt for Suhay's three charges and imposed an active sentence of ten years’ imprisonment. This appeal followed.

ANALYSIS

On appeal, Suhay contends that the circuit court erred in ruling that he did not satisfy the statutory requirements of Code § 19.2-303.6. Suhay specifically argues that the circuit court erred by prematurely considering the positions of the Commonwealth's attorney and views of the victim when determining whether the factual elements of Code § 19.2-303.6 were satisfied. He further argues that the circuit court also erred in finding that Suhay's criminal conduct was not caused by, nor had a direct and substantial relationship to, his ASD.

I. Statutory Interpretation of Code § 19.2-303.6

"Issues of statutory construction are questions of law which are reviewed de novo. " Fletcher v. Commonwealth , 72 Va. App. 493, 502, 849...