774 S.E.2d 475
Va. Ct. App.2015Background
- Appellant Quyen Vinh Phan Le, a Tae Kwon Do instructor, was convicted after two bench trials of three counts of custodial indecent liberties under Va. Code § 18.2-370.1: one count involving C.M.K. (victim) and two counts involving C.L.K. (victim). The trials were consolidated for appeal.
- The charged conduct spanned several years: sexual activity with C.M.K. beginning when she was 15–16 (first intercourse on her 16th birthday in May 2003) and continuing into 2004; alleged acts with C.L.K. when she was 16–18, with sexual intercourse in 2008 and nude photos from May 2008.
- Appellant moved to strike at trial arguing (a) the Commonwealth failed to prove he was not married to the minors or that they were not emancipated (elements of the statute), (b) the June 29–July 30, 2004 timeframe was not proved for one count, and (c) the Commonwealth was required to prove force; the trial court denied the motions and convicted on May 2003 and July 2004 counts (acquitting one January 2005 charge) and on the 2008 C.L.K. count.
- On appeal, appellant argued (1) lack of proof of non-marriage and non-emancipation, (2) insufficiency of evidence for the 2004 time period, and (3) statutory construction requiring force for sexual abuse under Code § 18.2-67.10(6)(a).
- The Court of Appeals held the marriage/emancipation challenge was waived under Rule 5A:18 (ends-of-justice exception not met), found the evidence sufficient as to the charged time period based on the victims’ credible testimony, and construed § 18.2-67.10(6)(a) to require no proof of force (plain statutory language).
Issues
| Issue | Le’s Argument | Commonwealth’s Argument | Held |
|---|---|---|---|
| Whether conviction must be reversed because Commonwealth did not prove victims were not married or not emancipated | Trial record lacked evidence proving non-marriage/non-emancipation; these are elements of the offense | Issue was not raised at trial; waived under Rule 5A:18; ends-of-justice exception inapplicable | Waived; Court declined to reach merits because appellant failed to show affirmative proof in the record that the elements did not occur |
| Whether evidence was insufficient to prove sexual abuse occurred between June 29–July 30, 2004 (timing) | Victim testimony was not specific enough to place the acts within the indicted timeframe | Victim testified relationship remained sexual during that period, including pregnancy scare and Planned Parenthood visit | Evidence sufficient; victim’s credible testimony, viewed in Commonwealth’s favor, supports conviction |
| Whether corroboration was required to sustain conviction | No physical corroboration of sexual contact existed | Victim’s testimony alone, if credible, is sufficient | Victim’s credible testimony alone sufficed; corroboration not required |
| Whether § 18.2-67.10(6)(a) requires proof of force for sexual abuse (thus making force an element of custodial indecent liberties) | Because other subparts reference force or constructive force, subsection (a) should be read to require force | Subsection (a) contains plain language that requires only intentional touching; General Assembly omitted a force element for (a) | No force element required under § 18.2-67.10(6)(a); plain statutory language controls; conviction stands |
Key Cases Cited
- Nobrega v. Commonwealth, 271 Va. 508 (proof of sexual intercourse can sustain conviction under custodial indecent liberties)
- Redman v. Commonwealth, 25 Va. App. 215 (ends-of-justice exception requires affirmative showing that an element did not occur or that convicted conduct was not criminal)
- Fogg v. Commonwealth, 208 Va. 541 (victim’s testimony alone, if credible, may sustain sexual offense conviction)
- Thomas v. Commonwealth, 44 Va. App. 741 (Rule 5A:18 requires contemporaneous objection to preserve issues for appeal)
- Blevins v. Commonwealth, 63 Va. App. 628 (standard of review for sufficiency of the evidence)