QUYEN VINH PHAN LE v. COMMONWEALTH of Virginia.
Record No. 0850-14-4.
Court of Appeals of Virginia, Lexington.
July 28, 2015.
774 S.E.2d 475
caretaker doctrine, we reverse the trial court‘s denial of Cantrell‘s motion to suppress the evidence obtained from the inventory search and remand for a new trial consistent with our analysis and holding if the Commonwealth is so advised.
Reversed and remanded.
Susan Baumgartner, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Present: BEALES, McCULLOUGH and O‘BRIEN, JJ.
O‘BRIEN, Judge.
In two separate bench trials, Quyen Vinh Phan Le (“appellant“) was convicted of three counts of custodial indecent liberties in violation of
Appellant asserts three assignments of error. He contends that “[t]he trial court erred in finding the evidence sufficient under
I. BACKGROUND
Appellant was a Tae Kwon Do instructor in Northern Virginia. He coached two sisters, C.L.K. and C.M.K., who were the victims of these crimes. C.L.K. and C.M.K. trained seven days a week and competed internationally. C.M.K., who began training with appellant when she was nine or ten years old, testified that in 2002, when she was fifteen years old, her relationship with appellant began to change and became sexual. She stated that she and appellant had sexual intercourse on May 9, 2003, her sixteenth birthday, and continued to have sexual relations “probably every day.” Appellant was twenty-nine years old at the time.
Sometime between June 29 and July 30, 2004, C.M.K. thought she was pregnant and appellant took her to Planned Parenthood for a pregnancy test. When the test returned negative, appellant bought C.M.K. birth control pills and had the bills sent to his studio. The sexual relationship continued while C.M.K. was seventeen years old.
In January 2005, C.M.K. began to date someone else with the hope that appellant “would let [her] go.” She continued to attend appellant‘s Tae Kwon Do school and when appellant discovered that she was seeing someone else, he required that she perform oral sex on him as a “kind of punishment.” He ultimately dismissed her from his studio in June 2006. C.M.K. testified that she was relieved when that happened.
Appellant presented evidence that he was close to C.M.K. and C.L.K.‘s family. Their mother was his office manager. She had a key to the studio and was often at the studio when her daughters were there. Appellant elicited testimony from C.M.K. and C.L.K.‘s younger sister, who identified a journal entry from January 2005, in which she wrote that if appellant and C.M.K. “don‘t get married, I‘m going to be pissed.”
At the close of the Commonwealth‘s case, appellant made a motion to strike. He argued that the evidence was insufficient as a matter of law to establish that he committed the crimes and that the evidence was insufficient to establish that one of the offenses occurred during the time frame alleged in the indictment. Appellant also argued at his motion to strike that sexual abuse required non-consensual conduct, which the Commonwealth failed to prove. The trial court overruled the motion to strike. Appellant renewed the motion on the same grounds at the close of the evidence. Once again, the trial court overruled the motion to strike and convicted appellant of the offenses occurring in May of 2003 and July of 2004. The trial court acquitted appellant of the charge alleging an offense which occurred in January of 2005.
In the other trial, for offenses against C.L.K., she testified that she was born in 1991 and began training with appellant at age six. With appellant‘s coaching, C.L.K. progressed and competed internationally. She was taught to respect appellant as a “Master” and follow his commands.
When C.L.K. was sixteen, appellant began a physical relationship with her, which started by him “groping” her breasts and private areas. He told her that they needed a “strong bond” to allow her to continue to achieve her goals. C.L.K. testified that she submitted to appellant‘s advances because she was afraid that otherwise she would lose her opportunity to train and compete on a national level.
In 2008, when C.L.K. was seventeen, she and appellant had sex for the first time. C.L.K. testified that she and appellant had sex “countless times” during the fall of 2008. Appellant‘s computer contained nude pictures of C.L.K. taken May 9, 2008. In 2009, C.L.K. ended the relationship and appellant terminated her from his Tae Kwon Do school. C.L.K. testified that she begged appellant to accept her back into the school, but he demanded sexual acts in exchange.
II. ANALYSIS
A. Marriage and Emancipation
In appellant‘s first assignment of error, he contends that the trial court erred in finding the evidence sufficient to convict him because the Commonwealth did not prove that he was not married to the victims and that the victims were not emancipated. He argues that lack of marriage and emancipation are elements of the crimes.
The offenses against C.M.K. occurred in 2004, when the statute read as follows:
Any person eighteen years of age or older who maintains a custodial or supervisory relationship over a child under the age of eighteen ... or who stands in loco parentis with respect to such child and is not legally married to such child, and who, with lascivious intent, knowingly and intentionally [commits various acts] ... shall be guilty of a Class 6 felony.
Any person 18 years of age or older who, except as provided in
§ 18.2-370 , maintains a custodial or supervisory relationship over a child under the age of 18 and is not legally married to such child and such child is not emancipated who, with lascivious intent, knowingly and intentionally [commits various acts] ... shall be guilty of a Class 6 felony.
The Commonwealth contends that appellant never raised this issue in either trial and therefore, pursuant to Rule 5A:18, it is waived and cannot be considered on appeal. Appellant concedes that he did not raise the issue of the lack of evidence regarding marriage or emancipation during his motions to strike or closing argument at either trial, but nevertheless contends that his argument should be considered based on the ends of justice exception to Rule 5A:18.
Rule 5A:18 states as follows:
No ruling of the trial court ... will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice. A mere statement that the judgment or award is contrary to the law and the evidence is not sufficient to preserve the issue for appellate review.
We have held that “[a]s a precondition to appellate review, Rule 5A:18 requires a contemporaneous objection in the trial court to preserve the issue on appeal.” Thomas v. Commonwealth, 44 Va.App. 741, 750, 607 S.E.2d 738, 742, adopted upon reh‘g en banc, 45 Va.App. 811, 613 S.E.2d 870 (2005). “The primary purpose of requiring timely and specific objections is to afford the trial judge a fair opportunity to rule intelligently on the issues presented, thus avoiding unnecessary appeals and reversals.” Rodriguez v. Commonwealth, 18 Va.App. 277, 284, 443 S.E.2d 419, 424 (1994). “A specific, contemporaneous objection also provides the opposing party an opportunity to address an issue at a time when the course of the proceedings may be altered in response to the problem presented.” Murillo-Rodriguez v. Commonwealth, 279 Va. 64, 79, 688 S.E.2d 199, 207 (2010) (quoting Shelton v. Commonwealth, 274 Va. 121, 126, 645 S.E.2d 914, 916 (2007)). Accordingly, “[t]he Court of Appeals will not
For us to apply the ends of justice exception to the rule as appellant requests, this Court must first determine, from reviewing the record, whether a miscarriage of justice has occurred. “In order to avail oneself of the exception, a defendant must affirmatively show that a miscarriage of justice has occurred, not that a miscarriage might have occurred.” Redman v. Commonwealth, 25 Va.App. 215, 221, 487 S.E.2d 269, 272 (1997).
The law regarding the issue of invoking the ends of justice exception is well-settled:
In order to show that a miscarriage of justice has occurred, an appellant must demonstrate more than that the Commonwealth failed to prove an element of the offense. We will not invoke the exception if the record suggests that the Commonwealth merely inadvertently or unknowingly failed to adduce adequate proof of an element of the offense. In order to show that a miscarriage of justice has occurred, thereby invoking the ends of justice exception, the appellant must demonstrate that he or she was convicted for conduct that was not a criminal offense or the record must affirmatively prove that an element of the offense did not occur.
Id. at 221-22, 487 S.E.2d at 272-73; see also Flanagan v. Commonwealth, 58 Va.App. 681, 695, 714 S.E.2d 212, 218 (2011). Accordingly, for this Court to consider the merits of appellant‘s assignment of error, he must show that either the conduct for which he was convicted is not a criminal offense or that the record affirmatively establishes that an element of the offense did not occur. Merely claiming that the Commonwealth failed to prove an element of the offense will not constitute a miscarriage of justice.
In Redman, the appellant argued for the first time on appeal that the Commonwealth failed to prove two elements of the crime for which he was convicted. Redman, 25 Va.App. at 217, 487 S.E.2d at 271. We declined to apply the ends of justice exception to Rule 5A:18 despite the fact that the Commonwealth clearly did not prove beyond a reasonable doubt two of the elements of the offense. Id. at 223, 487 S.E.2d at 273. We held:
The Commonwealth‘s failure to present sufficient evidence to prove these two elements demonstrates only that a miscarriage of justice may have occurred, not that a miscarriage of justice did occur. Had the defendant made a timely motion to strike the evidence, setting forth the specific grounds therefor, the trial court would have had the opportunity to address the issue by permitting the Commonwealth to reopen and correct the omission, if it be such, or to strike the evidence for lack of proof of a material element.
In the case before us, appellant contends that “because there was no evidence introduced regarding the elements of marital status or emancipation, therefore the record shows these elements did not occur.” This argument ignores the distinction between lack of proof of an element and affirmative proof that the element did not occur. Arguing that the record is devoid of evidence of an element does not equate with affirmative proof that an element did not occur.2
In summary, the Commonwealth was required to prove that appellant was not married to either of the juveniles. The Commonwealth was also required to prove that C.L.K. was not emancipated. However, lack of proof is not affirmative evidence to the contrary, which would warrant exercising the “ends of justice” exception to Rule 5A:18. Therefore, we decline to address the assignment of error and determine that it was waived.
B. Sufficiency of the Evidence to Prove Sexual Abuse
Appellant‘s other assignments of error involve sufficiency of the evidence and issues of statutory construction. “When reviewing the sufficiency of the evidence to support a conviction, the Court will affirm the judgment unless the judgment is plainly wrong or without evidence to support it.” Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008). On appeal, “we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.” Archer v. Commonwealth, 26 Va.App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987)). To the extent an assignment of error involves statutory construction, we review these issues de novo. Burns v. Commonwealth, 279 Va. 243, 250, 688 S.E.2d 263, 266 (2010); Farrakhan v. Commonwealth, 273 Va. 177, 180, 639 S.E.2d 227, 229 (2007).
Appellant contends the evidence was insufficient as a matter of law for the trial court to find that he sexually abused C.M.K. during the June 29, 2004 to July 30, 2004 time frame alleged in the indictment. Appellant argues that C.M.K.‘s testimony at trial was not specific enough to establish that the sexual abuse occurred during the time period charged in the indictment. Because this is a challenge to the sufficiency of the evidence, we “must uphold the conviction unless it was plainly wrong or lacked evidence to support it.” Blevins v. Commonwealth, 63 Va.App. 628, 634, 762 S.E.2d 396, 398 (2014).
C.M.K. testified that she had sexual intercourse with appellant for the first time on her sixteenth birthday. When asked specifically about the time period between June 29, 2004 and July 30, 2004, she testified that “it was still a sexual relationship,” and stated that she had sexual relations with appellant “probably every day.” She also related that during the time alleged in the indictment she thought she was pregnant, so appellant took her to Planned Parenthood for a pregnancy test and to obtain birth control pills.
The Supreme Court of Virginia has held that proof of sexual intercourse is sufficient to sustain a conviction under
Appellant also argues that there was no corroborative evidence of physical contact between himself and C.M.K. However, “[a]s we have stated, the victim‘s testimony alone, if not inherently incredible, is sufficient to support a conviction....” Id. at 519, 628 S.E.2d at 927. “We have repeatedly held that corroboration of the prosecutrix in a rape case is
C. Use of Force as an Element of the Offense
In appellant‘s final assignment of error, he asserts that the evidence was insufficient in both cases because the Commonwealth was required to prove that the offenses with which he was charged were accomplished by the use of force. Appellant was charged with committing indecent liberties by sexually abusing the victims while he was in a custodial relationship with them.
an act committed with the intent to sexually molest, arouse, or gratify any person, where:
a. The accused intentionally touches the complaining witness‘s intimate parts or material directly covering such intimate parts;
b. The accused forces the complaining witness to touch the accused‘s, the witness‘s own, or another person‘s intimate parts or material directly covering such intimate parts;
c. If the complaining witness is under the age of 13, the accused causes or assists the complaining witness to touch the accused‘s, the witness‘s own, or another person‘s intimate parts or material directly covering such intimate parts; or
d. The accused forces another person to touch the complaining witness‘s intimate parts or material directly covering such intimate parts.
The Commonwealth and appellant agree that the relevant portion of the statute is subsection (a). Nevertheless, appellant argues that because subparts (b) and (d) explicitly require the use of force, and because subpart (c) establishes constructive force by the element of age, proof of force was required for a conviction under subsection (a).
When reviewing issues of statutory construction, “courts apply the plain language of a statute unless the terms are ambiguous.” Boynton v. Kilgore, 271 Va. 220, 227, 623 S.E.2d 922, 926 (2006). “[I]f the language is plain, certain and unambiguous, so that no doubt arises from its own terms as to its meaning, then there is no room for interpretation.” Lynchburg Div. of Soc. Servs. v. Cook, 276 Va. 465, 480, 666 S.E.2d 361, 368 (2008) (alteration in original) (quoting Boynton, 271 Va. at 228 n. 10, 623 S.E.2d at 926 n. 10).
Appellant concedes that subsection (a) of the definition of sexual abuse “lacks a mention of any type of force in combination with the touching.” Yet, he urges us to read the element of force into subsection (a) because subparts (b) and (d) require force and subpart (c) uses the complaining witness’ age as constructive evidence of force. He cites cases interpreting the elements of aggravated sexual battery under
However, in the present case, appellant was charged with violations of
“The primary objective of statutory construction is to ascertain and give effect to legislative intent.” Commonwealth v. Zamani, 256 Va. 391, 395, 507 S.E.2d 608, 609 (1998). “Although penal statutes are to be strictly construed against the Commonwealth, courts are nevertheless bound by the plain meaning of unambiguous statutory language and may not assign a construction that
The General Assembly could have chosen to include the words “by force” in subsection (a) of
III. CONCLUSION
For the foregoing reasons, appellant‘s convictions are affirmed.
Affirmed.
Andrew WALLACE v. COMMONWEALTH of Virginia.
Record No. 1476-14-1.
Court of Appeals of Virginia, Norfolk.
July 28, 2015.
774 S.E.2d 482