840 S.E.2d 590
Va. Ct. App.2020Background
- Appellant Paul Chenevert lived with the victim, T.E.; when T.E. was eight she gave her mother a note stating appellant made her "kiss his Boo Boo" and told her not to tell.
- T.E.’s mother had found appellant sleeping in T.E.’s bed multiple times, prompting a forensic interview at a children’s hospital.
- During the forensic interview (T.E. aged eight), T.E. wrote and drew responses; she later testified at trial at age ten.
- The Commonwealth moved to admit T.E.’s handwritten letter to her mother and the drawings from the interview under Va. Code § 19.2-268.3 (the child-victim hearsay exception); the trial court admitted them.
- A jury convicted Chenevert of two counts of forcible sodomy of a minor and two counts of aggravated sexual battery; he received two life sentences plus 20 years.
- On appeal Chenevert argued the letter and drawings were inadmissible hearsay because they were not "statements" within the meaning of § 19.2-268.3; the Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the letter to the mother is a "statement" under Code § 19.2-268.3 and thus admissible hearsay | Commonwealth: statute covers out-of-court statements by child victims describing acts, not limited to forensic interviews | Chenevert: "statement" should be limited to statements made during forensic interviews; statute derogates common law and must be narrowly construed | The term "statement" is not so limited; the plain statutory text covers such out-of-court victim statements — letter admissible once court found reliability and child testified |
| Whether drawings made during the forensic interview are "statements" under Code § 19.2-268.3 | Commonwealth: drawings (and words on them) can be assertions and thus statements under hearsay law and Rule 2:801(a) | Chenevert: drawings are neither speech nor writing and therefore not "statements" | Drawings were statements: they included written assertions and/or nonverbal conduct intended as assertions under Rule 2:801(a); therefore admissible under § 19.2-268.3 |
Key Cases Cited
- Williams v. Commonwealth, 49 Va. App. 439 (2007) (standard for viewing evidence and inferences in the light most favorable to the Commonwealth)
- Commonwealth v. Swann, 290 Va. 194 (2015) (common-law definition of hearsay)
- Isbell v. Commercial Inv. Assocs., Inc., 273 Va. 605 (2007) (statutory construction: statutes in derogation of common law are strictly construed but plain language controls)
- Williams v. Commonwealth, 61 Va. App. 1 (2012) (court will not add or subtract words from plain statutory language)
- Brown v. Commonwealth, 25 Va. App. 171 (1997) (not every out-of-court utterance asserts a fact; context matters in assessing whether something is an assertion)