833 S.E.2d 900
Va. Ct. App.2019Background
- Victim G.G., appellant’s stepdaughter, initially reported abuse in 2013 but recanted; in 2017 (age 10) she disclosed that when she was 4–5 years old appellant licked her vagina and was drunk, and underwent a videotaped forensic interview at the Collins Child Advocacy Center.
- Appellant was interviewed April 19, 2017 (noncustodial) and then voluntarily returned April 24 for a polygraph; an interpreter was present, the door was unlocked, he was told he could leave, and he sat nearest the door.
- During the April 24 interview Detective Spiggle told appellant to "get up and walk out" if he had touched the child with his tongue; appellant then made oral admissions and wrote two statements (later arrested).
- Pretrial the court denied appellant’s motion to suppress those statements (finding the April 24 interview noncustodial) and admitted three of G.G.’s prior statements (2013 counselor report, 2017 disclosure to CPS worker, and the 2017 Collins Center videotape) under Va. Code § 19.2-268.3.
- At trial G.G. testified and had limited recollection of the Collins interview; the Commonwealth played the videotaped forensic interview; the jury convicted appellant of forcible sodomy by cunnilingus and the trial court denied his motion to set aside the verdict.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether April 24 statements should be suppressed as obtained during custodial interrogation (Miranda) | Commonwealth: interview was noncustodial; no Miranda required | Saucedo: Detective’s "walk out" remark converted the meeting into custodial interrogation requiring Miranda warnings | Court: Noncustodial — totality of circumstances (voluntary arrival, unlocked door, told free to leave, no restraints, relaxed demeanor) supports denial of suppression |
| Whether Collins Center videotaped forensic interview was admissible under Va. Code § 19.2-268.3 and whether admission violated Confrontation Clause | Commonwealth: prior statements were inherently trustworthy and G.G. testified (so Confrontation Clause satisfied) | Saucedo: G.G. could not recall the interview, so she did not "testify" for purposes of the statute and confrontation rights were violated; also argued lack of authentication | Court: Statutory prerequisites met; trial cross-examination opportunity satisfied Confrontation Clause; Collins Center interviewer authenticated the tape |
| Whether evidence proved the element of penetration for forcible sodomy by cunnilingus | Commonwealth: victim’s testimony and videotaped interview described touching/"opening" and licking of her vagina sufficient to show penetration of vulva/vagina | Saucedo: evidence insufficient to prove penetration required for sodomy | Court: Evidence (testimony, gestures to diagram, video) was sufficient — penetration of vulva/vagina established; conviction upheld |
Key Cases Cited
- Miranda v. Arizona, 384 U.S. 436 (1966) (Miranda warnings required prior to custodial interrogation)
- Oregon v. Mathiason, 429 U.S. 492 (1977) (confession at station not custodial when suspect free to leave)
- Missouri v. Seibert, 542 U.S. 600 (2004) (two-step question-first-then-warn interrogation can violate Miranda)
- California v. Beheler, 463 U.S. 1121 (1983) (voluntary stationhouse interview is not necessarily custodial)
- Crawford v. Washington, 541 U.S. 36 (2004) (Confrontation Clause bars admission of testimonial statements unless witness is testifying or unavailable and defendant had prior opportunity for cross-exam)
- Owens v. United States, 484 U.S. 554 (1988) (Confrontation Clause guarantees opportunity for effective cross-examination, not perfect cross-examination)
- Horton v. Commonwealth, 255 Va. 606 (1998) (standards for sufficiency and that penetration of vulva, not necessarily vagina, suffices for cunnilingus sodomy)
- Love v. Commonwealth, 18 Va. App. 84 (1994) (penetration of any portion of the vulva is sufficient for sodomy by cunnilingus)
- Ryan v. Commonwealth, 219 Va. 439 (1978) (penetration is an essential element of sodomy)