1056223
Va. Ct. App.Sep 19, 2023Background
- In Jan 2020 M.R., then 13, frequently stayed at her cousin Nia’s home where Nia’s husband, Lashawn Gordon, had custodial contact with her.
- On Jan 23, 2020, Gordon allegedly grabbed M.R.’s buttocks; weeks later he exposed his penis, asked her to touch it, and then forced her to perform oral sex.
- In early March 2020 Gordon sent lewd Snapchat messages to M.R.; she screenshotted them, showed them to her mother, and reported the abuse.
- Police interviewed M.R.; Detective Olivier testified to M.R.’s out-of-court statements recounting the incidents. Gordon later denied the allegations and claimed some messages were intended for another woman.
- Gordon was charged with forcible sodomy (dismissed at trial), sexual abuse of a child, computer solicitation of a child, and two counts of custodial indecent liberties; the trial court convicted him and sentenced him to an active term of imprisonment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of hearsay (corroborative complaint) | Commonwealth: M.R.’s prompt out-of-court complaints admissible under Va. Code § 19.2-268.2 to corroborate testimony | Gordon: Hearsay statements were inadmissible; no applicable exception | Court: Statements timely (report <2 months) and delay explained by victim’s embarrassment and defendant’s pressure; admissible for corroboration |
| Sufficiency — Sexual abuse (timing) | Commonwealth: Evidence of oral sex and related conduct establishes sexual abuse even if dates imprecise | Gordon: Testimony only showed viewing penis; indictment date window (Feb) not proved | Court: Time is not essential; evidence as a whole supports sexual-abuse conviction |
| Sufficiency — Computer solicitation | Commonwealth: Snapchat message clearly proposed fellatio and intercourse to a child | Gordon: Message did not meet statutory "propose" element | Court: Ordinary meaning of "propose" covers the explicit Snapchat text; conviction affirmed |
| Sufficiency — Custodial indecent liberties (intent) | Commonwealth: Grabbing buttocks plus later sexual acts and messages show lascivious intent in custodial role | Gordon: Touching was not shown to be intentional or sexual | Court: Circumstantial evidence (smirk, subsequent sexual conduct/messages) supports intent and custodial-offense conviction |
Key Cases Cited
- Wilson v. Commonwealth, 46 Va. App. 73 (2005) (timeliness standard for admitting recent complaint under § 19.2-268.2)
- Woodard v. Commonwealth, 19 Va. App. 24 (1994) (recent complaint admissible if delay explained)
- Brown v. Commonwealth, 37 Va. App. 169 (2001) (delay of complaint can be acceptable when explained)
- Terry v. Commonwealth, 24 Va. App. 627 (1997) (victim’s explanation of delay supports admission)
- Farhoumand v. Commonwealth, 288 Va. 338 (2014) (date in indictment not dispositive when time is not essence)
- Grafmuller v. Commonwealth, 57 Va. App. 58 (2010) (computer solicitation targets incitement; solicitation by one who believes recipient is a child is criminal)
- Moyer v. Commonwealth, 33 Va. App. 8 (2000) (statutory terms given ordinary meaning; lascivious intent explained)
- McKeon v. Commonwealth, 211 Va. 24 (1970) (definition of lascivious intent)
- Simon v. Commonwealth, 58 Va. App. 194 (2011) (intent may be proven circumstantially by conduct and statements)
- Rams v. Commonwealth, 70 Va. App. 12 (2019) (cumulative circumstantial evidence can establish guilt)
- Commonwealth v. Minor, 267 Va. 166 (2004) (evidence of other similar offenses admissible to show depraved sexual intent)