Julio R. Basurto, s/k/a Julio Ricardo Basurto v. Commonwealth of VirginiaJulio R. Basurto, s/k/a Julio Ricardo Basurto v. Commonwealth of Virginia
Julio Ricardo Basurto was convicted of abducting and sexually assaulting two different women: A.C. in October 2021 and C.B. in May 2023.2 Basurto argues that the trial court erred when it denied his motion to set aside the verdict because the charges for offenses against the two women were improperly joined, because trial counsel had a conflict of interest that
BACKGROUND4
The Abductions and Assaults
Because Basurto does not challenge the sufficiency of the evidence in this appeal, we provide only an overview of the evidence that was presented at trial related to the two abductions and sexual assaults.
In October 2021, A.C. left a bar where she had been drinking with friends and tried to get an Uber to take her home. Surveillance video showed her walking alone about a half mile from the bar, after midnight, when a dark-colored SUV pulled up to the curb and motioned to her. A.C. walked away while on her phone. A similar-looking SUV had passed her on the same road before this interaction. She ultimately woke up, alone in an unfamiliar car, in an unfamiliar place later determined to be on Army Navy Drive, without her underwear, shorts, or cell phone. She did not remember what had happened, but “realized something was wrong” and that she “had been violated in some way.” She ultimately underwent a sexual assault examination, and
The investigation went “cold” but was reopened in May 2023 after C.B. reported that she “was picked up outside of a bar in Clarendon, was sexually assaulted, and then was located the next morning on Army Navy Drive.” C.B. had also been drinking with friends before she left alone at 1:30 a.m. to call an Uber. When a black SUV pulled up to the curb, C.B. assumed that it was an Uber and got into the backseat.
C.B. quickly “realized that something was off,” and decided to call someone to pick her up. She asked the driver, later identified as Basurto, if she could charge her dead phone. He allowed her into the front seat to use the phone charger, and then he asked if she had “a way to pay for [the] ride.” Realizing that she had no cash and a dead phone, C.B. “freak[ed] out.” The driver said she had to pay “somehow,” then grabbed her by the back of the head and forced her to give him oral sex. He ultimately “kicked [her] out of his car” on Army Navy Drive and drove away. The next morning, she reported the sexual assault to police.
Special Victims Detective Christin Oesterling reviewed surveillance footage from the last bar that C.B. went to and saw C.B. leave at closing time and get into a black SUV that had pulled to the curb. Oesterling discovered that a license plate reader had recorded Basurto‘s SUV entering the Clarendon bar area shortly before C.B. got into the black SUV.
The police gathered parking access records and surveillance video from the parking garage at Basurto‘s apartment complex. Officer Sean Poveda placed a GPS tracker on Basurto‘s SUV and conducted surveillance on him after the C.B. assault. Poveda followed the SUV as it “loop[ed]” around the bar area. Poveda saw a woman alone on a street corner, “stumbling” and unable to “keep her balance.” He watched as Basurto pulled his SUV to the curb near the woman, turned on his hazard lights, and briefly interacted with her before she walked away.
The Trial
Basurto moved for a jury trial on the charges of intent to defile (two counts), forcible sodomy, and object sexual penetration, but the record does not reflect that he moved to sever the charges.6 Four days before the scheduled trial date, Basurto moved for a continuance, alleging that the Commonwealth had failed to comply with the discovery order and that his Brady7 rights had been violated. The trial court reviewed evidence of the Commonwealth‘s compliance with the discovery order and its Brady obligation, including an audit trail from the software the Commonwealth used to disseminate discovery. The audit trail showed that the disputed discovery was sent to Basurto‘s attorney in a timely manner and that the information had been downloaded.
During the hearing, the Commonwealth argued that Basurto‘s “true” reason for seeking the continuance was to secure additional time to provide notice of his intent to introduce DNA evidence, because he had not provided notice 21 days before trial as required by
Before voir dire and opening statements, the Commonwealth moved the trial court to preclude Basurto from “mentioning any DNA” during the opening statement because he had not filed the required notice. Basurto‘s counsel responded that she “[was] not planning on getting into it at opening,” but that if “it bec[ame] an issue,” she would “address it then.” The trial court granted the Commonwealth‘s motion and directed both parties not to refer to “DNA evidence in their opening statement[s].” During voir dire, the Commonwealth told the venire that they were not going to hear “any evidence about like a DNA match in this case like you see on CSI or anything like that,” and asked if any of the prospective jurors believed they could not convict someone “without a DNA certificate or DNA evidence.” Basurto did not object to the question. No member of the venire responded affirmatively to the question.
In its opening statement, the Commonwealth told the jury that Basurto‘s internet search history revealed that he had searched for the quote, “The man who lies to himself has an enemy within,” which is attributed to the Russian novelist Fyodor Dostoevsky. Basurto did not object to the Commonwealth‘s opening statement.
After identifying Basurto in court, A.C. identified herself in the video of Basurto inserting his fingers into her vagina. She was “unconscious, not asleep” when the videos were made on Basurto‘s phone. A.C. had no memory of the assault, did not know Basurto, and never consented to the sexual penetration.
C.B. identified Basurto in court as the person who forced his penis into her mouth. She had never interacted with Basurto before that night. C.B. did not consent to performing oral sex on him.
Basurto moved to strike the Commonwealth‘s evidence as insufficient and argued that venue was improper.8 The trial court denied the motion to strike, finding that there was “sufficient evidence, direct and circumstantial, for a reasonable fact finder to conclude that Mr. Basurto is guilty of these charges.” Basurto rested his case without presenting evidence. When asked whether there were “any other issues” Basurto wanted the trial court to address, Basurto stated that there were none.
In its closing argument, the Commonwealth stated that, hours before Basurto abducted C.B., he had a “moment of self-reflection” when he searched the internet for the Dostoevsky quote (“The man who lies to himself has an enemy within“). The Commonwealth recited the quote after summarizing its evidence of Basurto‘s abductions and sexual assaults of A.C. and C.B. in offenses less than two years apart. Basurto did not object at the time nor did he object
The Motion to Set Aside the Verdict and Sentencing
Upon retaining new counsel, Basurto moved to set aside the verdict, arguing that his “Sixth Amendment right[s] to conflict-free counsel” and to “consultation as to his attorney‘s concession at trial” were violated and constituted a “structural error” because trial counsel had a “conflict of interest“; that the charges should not have been joined; and that there was a “fatal variance in the Commonwealth‘s trial evidence concerning AC [sic].” The motion asserted that the conflict-of-interest claim should not be “analyzed under the Strickland9 doctrine“—applicable to ineffective-assistance-of-counsel claims in habeas corpus cases, “which would require deficient performance and prejudice“—but under the framework for structural errors where prejudice is presumed. Basurto argued that the conflict of interest arose from counsel‘s intent to “hide her mistake” to avoid a disciplinary complaint or sanction for failing to provide a timely notice of an intent to introduce DNA evidence. He claimed that trial counsel abandoned her original trial strategy of a “complete innocence” defense to the C.B. charges after realizing her mistake. Given his claim that trial counsel‘s alleged conflict amounted to a “structural error,” he asserted that he only had to prove an actual conflict of interest for which he did not have to prove prejudice.
In the second part of his motion, Basurto argued that his charges “should not have been joined.” He acknowledged that his trial counsel had not “move[d] to sever the cases,” but said that her decision was driven not by strategy or knowledge of the law but by a clause in the retainer agreement, which “did not provide for an additional [c]ircuit [c]ourt fee in the event the
Finally, Basurto argued that there was a “fatal variance” between the object sexual penetration indictment and the evidence adduced at trial. He noted that the indictment alleged that the offense occurred in Arlington County, but the evidence presented at trial established that the object sexual penetration occurred in the City of Alexandria.
The trial court denied Basurto‘s motion to set aside the verdicts and declined to hold an evidentiary hearing. It ruled that “the issues and arguments raised in the pleadings are essentially ineffective assistance of counsel claims that are more properly addressed at a habeas hearing.” The trial court found that Basurto‘s “structural error” claim was “a very creative way of stating an ineffective assistance claim while straining to keep it within the purview of the trial court.” “[T]here is a line,” the trial court stated, and Basurto‘s claim was “just over into the habeas area . . . [and] would better be addressed in . . . the habeas framework.”
On the conflict-of-interest claim, the trial court noted that Basurto‘s trial counsel had “professionally, zealously[,] and competently represented” him and that she “did not present [him] as guilty to the jury.” Indeed, trial counsel “presented [Basurto] as not guilty, entered a plea of not guilty, vigorously argued the issue of consent, [and] vigorously attacked” C.B.‘s credibility.
Regarding joinder, the trial court ruled that “there is no rule, statute[,] or case law that even suggests that a trial court has a duty to sever cases . . . without the filing of a motion to sever” and that Basurto‘s counsel never objected to trying the cases together. Similarly, the trial court found that trial counsel “did not object” to the language of the object sexual-penetration indictment during the trial. It added that the indictment and the prosecution were permitted under
The court heard victim impact statements from A.C. and C.B. expressing the mental, emotional, physical, and financial toll the assaults had taken on their lives. The trial court also reviewed multiple letters from A.C.‘s and C.B.‘s family and friends describing their experiences supporting the two women through the aftermath of the assaults and the trial process.
Basurto played a video “about the history and characteristics” of his life and an “award he won for his activism.” His sentencing memorandum emphasized his “[e]xtraordinary [s]ervice to [c]ommunity,” including awards for fair housing activism and a community leader award in 2022. Basurto argued that he had made an “[e]xtraordinary [c]ommitment to [p]arenting and [f]amily” by raising three children with “diagnosed disabilities and special needs” as a single parent. The memorandum claimed that Basurto was “neurocognitively impaired by a traumatic brain injury” and that the stress from “key developmental periods harmed his ability to self-regulate.”
Before pronouncing the sentence, the trial court paraphrased the Dostoevsky quote and opined that Basurto had been “hiding in plain sight,” doing “wonderful things,” but also “victimizing two people a year apart.” “[T]he evidence showed beyond [a] reasonable doubt” that Basurto planned, calculated, stalked, and preyed upon vulnerable women, and fell “victim” to his impulses. The trial court determined that the proper sentencing considerations were “protecting the public . . . and provid[ing] for punishment and provid[ing] for rehabilitation.” It found that the evidence showed that Basurto was a sexual predator: he planned both crimes and
ANALYSIS
I. The trial court properly denied Basurto‘s motion to set aside the verdict.
A trial court may “set aside [a jury‘s] verdict for error committed during the trial or if the evidence is insufficient as a matter of law to sustain a conviction.”
Basurto argues that the trial court should have set aside the jury‘s verdict based on what he claims were trial errors: an improper joinder of charges, a conflict of interest with his counsel, and a fatal variance between the indictment and the facts presented at trial. We address each argument in turn.
A. Basurto‘s joinder argument is waived because it was not presented before trial.
Whether “an accused, pursuant to
A “motion to sever charges is decided on the evidence ‘as it appears before trial,’ not on the evidence that ultimately was adduced at trial.” Brooks v. Commonwealth, 73 Va. App. 133, 143 (2021) (quoting Spence v. Commonwealth, 12 Va. App. 1040, 1045 (1991)). A “motion for separate trials must be made before trial begins or it is deemed waived.” Colclasure v. Commonwealth, 10 Va. App. 200, 202 (1990) (quoting Burgess v. Commonwealth, 224 Va. 368, 372 (1982)). Basurto did not move to sever the charges before trial; instead, he moved for a new trial after the jury‘s verdict. Consequently, the issue is waived, and the trial court did not err by refusing to grant a new trial on that basis. Id.
B. Basurto‘s variance argument is waived because it was not presented below.
The purpose of an indictment is to give the accused written notice of “the nature and cause of the accusation against him.” Scott v. Commonwealth, 49 Va. App. 68, 73 (2006) (quoting Hairston v. Commonwealth, 2 Va. App. 211, 213 (1986)). A variance occurs when the indictment differs from the proof at trial, but “[n]ot every variance is fatal.” Purvy v. Commonwealth, 59 Va. App. 260, 266 (2011). “A fatal variance occurs when the criminal pleadings charge one offense and the evidence proves another.” Commonwealth v. Bass, 292 Va. 19, 27 (2016). A “‘non-fatal’ variance is one that does not undermine the integrity of the trial and, thus, does not warrant a reversal on appeal.” Purvy, 59 Va. App. at 266 (quoting Morris v. Commonwealth, 33 Va. App. 664, 668 (2000)).
“[O]nce a verdict has been entered on an indictment, it will be set aside only if the indictment is ‘so defective as to be in violation of the Constitution.‘” Gomez v. Commonwealth, 72 Va. App. 173, 176 (2020) (quoting Reed v. Commonwealth, 281 Va. 471, 480-81 (2011)). The “criminal statute of jeofails,
Renewing the argument made in his motion, Basurto argues that there was a “fatal variance” between the language of the indictment for object sexual penetration and the evidence presented. The record demonstrates that Basurto did not object to the language of that indictment any time before the jury returned its verdict. Thus, “even if the [fatal variance] objection were valid, it came too late.” Gomez, 72 Va. App. at 177 (alteration in original) (quoting Stamper, 228 Va. at 713). See also
Furthermore, Basurto first presented this argument to the trial court in his motion to set aside the verdicts. Under
C. The existing record does not show that Basurto‘s trial counsel had a conflict of interest that amounted to a structural error.
A defendant has a right to effective counsel under the Sixth Amendment of the United States Constitution. Gideon v. Wainwright, 372 U.S. 335 (1963). Basurto argues that his trial counsel labored under a conflict of interest that violated his rights to counsel and due process,
It is true that “claims of ineffective assistance of counsel are not reviewable on direct appeal and . . . can be raised only in a habeas corpus proceeding.” Sigmon v. Dir. of the Dep‘t of Corr., 285 Va. 526, 533 (2013). But it is also true that the functional denial of counsel has sometimes been addressed on direct appeal. See, e.g., Browning v. Commonwealth, 19 Va. App. 295, 297 n.2 (1994) (granting relief on direct appeal after finding that an appellant was constructively denied his right to counsel); Dowell v. Commonwealth, 3 Va. App. 555, 557 (1987) (granting relief on direct appeal where appellant was denied right to counsel due to a conflict of interest). This is because the denial of counsel has been recognized as a structural error, meaning a “defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.” Emmett v. Warden of the Sussex I State Prison, 269 Va. 164, 168 (2005) (quoting Arizona v. Fulminante, 499 U.S. 279, 310 (1991)). Examples of errors that amount to a structural error include the “denial of a public trial, the denial of counsel, the denial of an impartial trial judge, the systematic exclusion of members of the defendant‘s race from the grand jury, the infringement upon a defendant‘s right to represent himself, and the
Before we can determine that a purported conflict of interest rose to the level of denying Basurto representation altogether, we would have to conclude that the record on direct appeal definitively shows a conflict of interest in the first place. “An actual conflict of interest exists when the attorney‘s interests and the defendant‘s interests ‘diverge with respect to a material factual or legal issue or to a course of action.‘” Moore v. Hinkle, 259 Va. 479, 487 (2000) (quoting Cuyler v. Sullivan, 446 U.S. 335, 356 n.3 (1980)). A successful claim requires “proof of effect upon representation.” Spence v. Commonwealth, 60 Va. App. 355, 370 (2012) (quoting Mickens v. Taylor, 535 U.S. 162, 173 (2002)). The mere “possibility of [a] conflict is insufficient to impugn a criminal conviction.” Kenner v. Commonwealth, 71 Va. App. 279, 297 (2019) (quoting Cuyler, 446 U.S. at 350). Successful conflict of interest appeals have involved counsel who impermissibly represented co-defendants, Dowell, 3 Va. App. at 561, where trial counsel admitted a conflict of interest and described how it impacted their performance, Carter v. Commonwealth, 11 Va. App. 569 (1991), and a situation where the private prosecutor on the defendant‘s case concurrently represented the victim in a civil action against the defendant, Price v. Commonwealth, 72 Va. App. 474 (2020).
Basurto did not demonstrate that his trial counsel labored under an actual, rather than a theoretical, conflict of interest that “adversely affect[ed] counsel‘s performance.” Spence, 60 Va. App. at 370 (quoting Mickens, 535 U.S. at 172 n.5). Basurto‘s conflict-of-interest claim
However, Basurto points to no substantive evidence in the existing record to support these allegations or the existence of a conflict. To begin, there was no possibility that any such mistake from counsel could or would remain “hid[den]” if counsel switched trial strategies because the Commonwealth pointed out the failure to give notice of the DNA evidence at the pre-trial motion for a continuance. Beyond that, Basurto himself admits that counsel, in fact, pursued a trial strategy, albeit one that he claims was adopted belatedly. Finally, the trial court found that his counsel vigorously and zealously represented Basurto at trial. Unlike Carter, 11 Va. App. at 571-72, there is no evidence in this record about Basurto‘s counsel‘s side of the story—something that is usually developed on habeas review. Therefore, based on this record, we find that the conflict-of-interest claim is speculative and affirm the trial court‘s denial of the motion to set aside the verdict on the grounds of a conflict of interest amounting to a structural error.
II. Basurto waived his arguments related to the Commonwealth‘s comments or arguments regarding the lack of DNA evidence.
To preserve an objection to an improper comment by the Commonwealth, “defense counsel must object contemporaneously, state the basis for the objection, ‘articulate . . . clearly the action he desire[s] the court to take’ . . . and point out ‘that the action need[s] to be taken before the jury retire[s].‘” Harvey v. Commonwealth, 76 Va. App. 436, 458-59 (2023) (first,
Basurto claims that the prosecutor‘s comments, arguments, and questions about the lack of DNA evidence were improper.11 He adds that these comments “exploit[ed] defense counsel‘s failure to file DNA notices and resulting bar on defense counsel‘s admission of DNA results.” Basurto did not contemporaneously object to the Commonwealth‘s questions or comments during voir dire, or to its closing argument. He did not object during Oesterling‘s trial testimony about the evidentiary value of the DNA evidence collected during the investigation. Basurto did not move for a mistrial or request a cautionary instruction as “required to preserve the issue for appeal.” Bennett, 29 Va. App. at 281. Thus, the argument is waived. Harvey, 76 Va. App. at 458.
III. The trial court did not abuse its discretion in sentencing Basurto by referencing a Dostoevsky quote.
“We review the trial court‘s sentence for abuse of discretion.” Scott v. Commonwealth, 58 Va. App. 35, 46 (2011). A trial court abuses its discretion “when a relevant factor that should have been given significant weight is not considered; when an irrelevant or improper factor is considered and given significant weight; [or] when all proper factors, and no improper ones, are considered, but the court, in weighing those factors, commits a clear error of judgment.”
“Criminal sentencing decisions are among the most difficult judgment calls trial judges face.” Id. “Because this task is so difficult, it must rest heavily on judges closest to the facts of the case—those hearing and seeing the witnesses, taking into account their verbal and nonverbal communication, and placing all of it in the context of the entire case.” Id. “For the determination of sentences, justice generally requires consideration of more than the particular acts by which the crime was committed and that there be taken into account the circumstances of the offense together with the character and propensities of the offender.” Smith v. Commonwealth, 27 Va. App. 357, 361 (1998) (quoting Shifflet v. Commonwealth, 26 Va. App. 254, 259 (1997)).
Relevant factors for sentencing consideration may include the defendant‘s criminal history, prior convictions and pending charges, and convictions on appeal. Thomas v. Commonwealth, 18 Va. App. 656, 659 (1994). In fashioning a sentence, the trial court is charged with considering “various mitigating, extenuating, or even aggravating circumstances.” Swain v. Commonwealth, 28 Va. App. 555, 561 (1998). “It is within the trial court‘s purview to weigh any mitigating factors presented by the defendant.” Khine v. Commonwealth, 82 Va. App. 530, 558 (2024) (quoting Keselica v. Commonwealth, 34 Va. App. 31, 36 (2000)).
The trial court found that the convictions reflected the jury‘s conclusion that Basurto did not stop to help A.C. and B.C. while they were “intoxicated and vulnerable“; instead, he stopped to “victimize and to terrorize and to traumatize” them. Based on the circumstances of the offenses, the trial court found that Basurto was a sexual predator who “delighted” in his crimes and was a danger to the community, despite his otherwise commendable efforts in his church, his family, and his community. Given the impact of his crimes on the community, the trial court determined that it was obligated to “protect the community” from him. We find that the trial court properly relied on the evidence presented at trial and did not abuse its discretion in rendering the sentence.
CONCLUSION
Accordingly, we affirm the trial court‘s judgment.
Affirmed.