White v. Commonwealth

1

ELLIOT EMMANUEL WHITE, A/K/A ELLIOTT EMMANUEL WHITE v. COMMONWEALTH OF VIRGINIA

No. 0254-23-2

Court of Appeals of Virginia

March 12, 2024

FROM THE CIRCUIT COURT OF HENRICO COUNTY L. A. Harris, Jr., Judge

John W. Parsons; John W. Parsons, Attorney at Law, on brief), for appellant.

(Jason S. Miyares, Attorney General; Ryan Douglas Beehler, Assistant Attorney General, on brief), for appellee.

Present: Chief Judge Decker, Judges Fulton and Ortiz

MEMORANDUM OPINION ^[*]

MARLA GRAFF DECKER CHIEF JUDGE

A jury found the appellant guilty of three counts of aggravated sexual battery of his stepdaughter, who was between six and eleven years of age when the offenses occurred. He contends on appeal that the evidence was insufficient because the child's testimony was the only proof that he "touched [her] intimate parts." He suggests the testimony was inherently incredible because she did not report the incidents until she was fourteen years old, she had a motive to fabricate the charges, and there was no corroborating evidence. Because her testimony was not inherently incredible or contrary to human experience and was accepted by the jury, we affirm the convictions.^[1]

BACKGROUND^[2]

The appellant was charged with sexually molesting his stepdaughter, A.H., who was born in May 2006. In December 2012, the appellant moved into the home on Beale Street where A.H. lived with her younger brother and her mother, D.H. During this time, D.H. worked as a nurse on a shift from 3:00 p.m. to 11:00 p.m., and the appellant stayed with the children. A.H. testified that when she was around six years old, the appellant got into her bed at night, put his fingers inside her underwear, and rubbed her vagina and clitoris. A.H. testified that the abuse happened "more than one time" while she lived on Beale Street. Each encounter lasted between five and thirty minutes.

The family moved to a residence on Honeysuckle Court in 2015 D.H. worked in the evenings as a private duty nurse in addition to her regular daytime shift. In the new house, A.H shared a bedroom with her five-year-old brother. The appellant continued the same pattern of sexual abuse against A.H. A.H. testified that while living on Honeysuckle Court the appellant sexually abused her "more than one time."

In 2016, they moved to a house on Ivy Avenue. At that residence, A.H. shared a bedroom with her two-year-old sister. Her brother had a separate bedroom but sometimes slept in A.H.'s room on a small couch or the floor. The appellant continued his sexual abuse against A.H. He came into her bed and touched her in the same manner at night, but he did so less often.

The sexual abuse stopped when the appellant moved out in April 2017. Throughout this period, A.H. did not tell anyone about the abuse because she was afraid of the appellant.

In October 2020, a male friend of D.H.'s moved into the household. His presence made A.H. uneasy because it evoked memories of the appellant's abuse. In December 2020, D.H. questioned A.H. about her "kind of mean" attitude toward the man. A.H., "in tears," told her mother that the appellant had sexually abused her between 2012 and 2017. When interviewed by law enforcement in May 2021, the appellant denied A.H.'s allegations.

After the jury found the appellant guilty of three counts of aggravated sexual battery, the trial court sentenced him on each count to ten years in prison, with seven years of each sentence suspended.

ANALYSIS

The appellant argues that A.H.'s testimony was inherently incredible. He suggests it is so because she delayed in reporting the alleged abuse, her poor grades and dislike of her mother's new boyfriend provided a motive to fabricate the charges, and there was no corroborating evidence. Based on the victim's alleged inherent incredibility, he asserts there was insufficient evidence he "touched [A.H.'s] intimate parts."^[3]

I. Standard of Review

The Court is guided by well-established legal principles. When considering the sufficiency of the evidence, the appellate court views the evidence "in the light most favorable to the Commonwealth, the prevailing party at trial." Barnett v. Commonwealth, 73 Va.App. 111, 115 (2021) (quoting Smith v. Commonwealth, 66 Va.App. 382, 384 (2016)). "Viewing the record through this evidentiary prism requires us to 'discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn'" from that evidence. Commonwealth v. Barney, ____ Va. ____, ____ (Mar. 16, 2023) (quoting Commonwealth v. Perkins, 295 Va. 323, 323-24 (2018) (per curiam)). "The judgment of the trial court is presumed correct and will not be disturbed unless it is plainly wrong or without evidence to support it." Ingram v. Commonwealth, 74 Va.App. 59, 76 (2021) (quoting Smith v. Commonwealth, 296 Va. 450, 460 (2018)).

"It has long been deemed 'an abuse of the appellate powers to set aside a verdict and judgment[] because an appellate court, from the evidence as written down, would not have concurred in the verdict.'" Barney,____ Va. At ____ (quoting Perkins, 295 Va. at 327). Accordingly, "the relevant question is whether 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Washington v. Commonwealth, 75 Va.App. 606, 615 (2022) (quoting Vasquez v. Commonwealth, 291 Va. 232, 248 (2016)). "In applying this standard of review, we eschew the divide-and-conquer approach, which examines each incriminating fact in isolation, finds it singularly insufficient, and then concludes that the sum of these facts can never be sufficient. Instead, in an appellate sufficiency review, the evidence is 'considered as a whole.'" Barney, _____ Va. At ____ (quoting Stamper v. Commonwealth, 220 Va. 260, 273 (1979)).

II. Credibility of the Victim's Testimony and Sufficiency of the Evidence

To convict the appellant of aggravated sexual battery under Code § 18.2-67.3, the Commonwealth had to prove that he "intentionally touch[ed]" the "intimate parts," including "genitalia, anus, groin, breast, or buttocks," or clothing covering such parts, of a child under the age of thirteen years. See Code §§ 18.2-67.3(A), -67.10(2), (6)(a). The appellant's sufficiency challenge is limited to contesting only the finding that he touched A.H.'s "intimate parts." Relying on her delay in reporting the abuse, her alleged motive to fabricate the charges, and the suggested lack of corroborating evidence, he asserts there was no evidence of any touching because A.H. was not a credible witness. The facts and law refute this challenge.

First and foremost, A.H.'s testimony, if found credible by the jury, was "sufficient evidence, standing alone, to support the conviction[s]." See Fisher v. Commonwealth, 228 Va. 296, 299 (1984). A.H. testified she was six years old when the appellant moved into her house in December 2012. She said the sexual abuse began in that house, continued in two other residences where the family lived, and stopped only when the appellant moved out in 2017. In October 2020, her mother's new boyfriend moved into the house, and his presence as a male adult reminded A.H. of the incidents with the appellant. When her mother questioned A.H. in December 2020 about her "kind of mean" attitude toward the new man, A.H. admitted to her that the appellant sexually abused her between 2012 and 2017. A.H. specifically recounted that the appellant frequently climbed into her bed at night, put his fingers inside her underwear, and rubbed her vagina and clitoris in "circular motions" anywhere from five to thirty minutes for each encounter. Her description of the appellant's conduct established that he intentionally touched her genitalia, which constituted aggravated sexual battery under Code § 18.2-67.3. In short, this evidence, accepted by the jury, was sufficient to prove the offenses.

The appellant argues A.H. should not be believed because she did not report the abuse when it occurred. A.H. provided a sound explanation for the delay. She said she told no one because she was afraid of the appellant, who was an adult male living in the homes with her. Child victims often do not report sexual abuse immediately when it happens because of fear of their assailant, shame, or embarrassment. See Wilson v. Commonwealth, 46 Va.App. 73, 77, 80, 88 (2005) (twelve-year-old victim did not report sexual abuse for three years); Love v. Commonwealth, 18 Va.App. 84, 85, 89-90 (1994) (thirteen-year-old victim did not report sexual abuse for seven years); Corvin v. Commonwealth, 13 Va.App. 296, 297-99 (1991) (juvenile victim did not report sexual abuse for fourteen months). Here, A.H. was only six years old when the sexual abuse began. Her abuser was living in the various homes with her and was married to her mother. A.H. was left alone with him and her younger siblings for periods of time. The abuse continued over several years, while they lived in three different homes, until A.H. was eleven years old. In fact, the abuse only stopped when the appellant moved out in 2017. A.H. reported the incidents after he was gone when a new adult male moved into the household in 2020, triggering the horrible memories of abuse. The jury was aware of the delay in reporting and the circumstances surrounding the delay. It was a factor for the jury to consider and weigh with all of the evidence but did not render A.H.'s testimony incredible as a matter of law. See Church v. Commonwealth, 71 Va.App. 107, 122-23 (2019) (stating that it is the jury's responsibility to determine what weight to give admitted evidence); Love, 18 Va.App. at 90 (holding that where the child victim delayed in reporting sexual abuse, it was the...