Ronald Stuart Murry, Jr. v. Commonwealth of VirginiaRonald Stuart Murry, Jr. v. Commonwealth of Virginia
Leah A. Darron, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.
Present: FELTON, C.J., and KELSEY and CHAFIN, JJ.
CHAFIN, Judge.
Ronald Stuart Murry, Jr., (“Murry“) was convicted by the Circuit Court of Hanover County (“circuit court“) of one count of rape in violation of
I. Background
“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)). So viewed, the evidence establishes that all of the convictions involved in this appeal stem from the reports of one complaining witness: B.W., Murry‘s teenage stepdaughter. Murry lived in Hanover County with B.W., her mother, and her two younger siblings. Murry first met B.W. when she was three or four years old, and he acted as a father-figure in her life.
When B.W. was five years old, Murry began coming into her bedroom at night once or twice per week and touching her breasts and vagina, both over and under her clothes. This activity continued until she was thirteen years old. In October or November 2009, when B.W. was thirteen years old, Murry came into her bedroom onе night, removed his and her clothing, and inserted his penis into her vagina. Although B.W. told Murry to stop, he refused and told her that everything was “okay.” B.W. did not tell anyone about this incident until January 2011, when she told her mother. When B.W.‘s mother confronted Murry, he claimed that B.W. instigated the sexual contact and that the intercourse was consensual. He then became emotionally distraught and sought in-patient mental health treatment, during the course of which he made several incriminating statements about molesting B.W.
At his trial for rape and aggravated sexual battery, Murry continued to deny that he raped B.W. Although he admitted that he had sexual intercourse with B.W. when she was thirteen years old, he claimed that B.W. instigated the sexual cоntact and that the intercourse was consensual. He claimed that she never told him to stop during the intercourse and that afterward he stayed in her bed for forty-five minutes discussing what was going on at B.W.‘s school and the day‘s activities. Murry also denied that he inappropriately touched B.W. on her breasts or vagina when she was between the agеs of five and thirteen years old.
The circuit court rejected Murry‘s testimony, finding it “entirely incredible, and ... designed to minimize his culpability and to account for the admissions that he made at the hospital....” The circuit court also found that Murry‘s ongoing sexually abusive relationship with B.W. and his “grooming” behavior likely led to the rape. The circuit court discounted testimony from other individuals concerning the strong, positive relationship between Murry and B.W., stating that Murry “fooled everyone.” The circuit court found Murry guilty on all charges, and sentenced him to a term of 156 years and 7 months of incarceration. The circuit court suspended 140 years of Murry‘s sentence, and thereby imposed an active term of incarceration of 16 years and 7 months.2
Over Murry‘s objection, the circuit court ordered the following condition of his eventual probation: “[Murry] shall submit his person, property, place or residence, vehicle, and personal effects, to search at any time, with or without a search warrant, warrant of arrest or reasonable cause by any Probation Officer or Law Enforcement Officer.” The circuit court imposed this condition for the entire period of Murry‘s suspended sentence, a period effectively equivalent to the rest of his life. Murry objected to this condition,
I agree with the Commonwealth that [Murry] ... groomed this child from an early age to accept his physical advances and that he manipulated her into this at the same time that he was presenting to everyone in his family and ... community what a good person he would be ... to have with children. I mean it‘s classic predatory behavior.... And ... he does not accept responsibility for that, he exhibits distorted behavior about his own role____And, in order to protect the community at the time that he‘s finally released, I want ... law enforcement to have the ability to go directly into his house at any time to see what he‘s doing....3
II. Analysis
Probation is “[a] court-impоsed criminal sentence that, subject to stated conditions, releases a convicted person into the community instead of sending the criminal to jail or prison.” Word v. Commonwealth, 41 Va.App. 496, 502, 586 S.E.2d 282, 285 (2003) (quoting Black‘s Law Dictionary 1220 (7th ed.1999)). “When coupled with a suspended sentence, probation represents ‘an act of grace on the part of the Commonwealth to one who has been convicted and sentenced to a term of confinement.‘” Price v. Commonwealth, 51 Va.App. 443, 448, 658 S.E.2d 700, 703 (2008) (quoting Pierce v. Commonwealth, 48 Va.App. 660, 667, 633 S.E.2d 755, 758 (2006)).
The only limitation placed upon a trial court‘s discretion in its determination of probation conditions is one of reasonableness. Anderson v. Commonwealth, 256 Va. 580, 585, 507 S.E.2d 339, 341 (1998) (citing Dyke v. Commonwealth, 193 Va. 478, 484, 69 S.E.2d 483, 486 (1952)). A condition of probation “must be reasonable, having due regard to the nature of the offense, the background of the offender[,] and the surrounding circumstances.” Nuckoles, 12 Va.App. at 1086, 407 S.E.2d at 356 (quoting Loving v. Commonwealth, 206 Va. 924, 930, 147 S.E.2d 78, 83 (1966), rev‘d on other grounds, 388 U.S. 1 (1967)); see also Anderson, 256 Va. at 585, 507 S.E.2d at 342. “Just as other punishments for criminal convictions curtail an offender‘s freedoms, a court granting probation may impose reasonable conditions thаt deprive the offender of some freedoms enjoyed by law-abiding citizens.” United States v. Knights, 534 U.S. 112, 119, 122 S.Ct. 587, 591 (2001).
“Sex offenders are a serious threat in this Nation.” McKune v. Lile, 536 U.S. 24, 32, 122 S.Ct. 2017, 2024 (2002) (plurality opinion). “When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault.” Id. at 33, 122 S.Ct. at 2024. “As in the present case, the victims of sexual assault are most often juveniles.” Id. at 32, 122 S.Ct. at 2024. Due to their unique threat to society, sex offender probationers are classified and treated differently than other offenders. Unlike non-sex offender probationers, sex offender probationers are required to publicly register their status with the Sex Offender and Crimes Against Minors Registry “to assist the efforts of law-enforcement agencies and others to protect their communities and families from repeat sex offenders[,] and to protect children from becoming victims of criminal offenders. . . .”
Although more commonly encountered in cases when probation is imposed following convictions for contraband offenses (drug offenses, firearm offenses, etc.), see Anderson, 256 Va. at 585, 507 S.E.2d at 342, conditions requiring the waiver of a probationer‘s Fourth Amendment rights are also proper under certain circumstances in cases involving sex offender probationers.4 When rеasonable in light of the nature and circumstances of the probationer‘s offense and his or her background, probation conditions requiring Fourth Amendment waivers may be appropriate to ensure the probationer‘s good behavior, prevent his or her recidivism, and protect the public. Sex offender probationers, like all probationers,
have even more of an incentive to conceal their criminal activities and quickly dispose of incriminating evidence than the ordinary criminal because probationers are aware that they may be subject to supervision and face revocation of probation, and possible incarceration, in proceedings in which the trial rights of a jury and proof beyond a reasonable doubt, among other things, do not apply.
Knights, 534 U.S. at 120, 122 S.Ct. at 592 (citation omitted). By eliminating any degree of suspicion required to justify searches, Fourth Amendment waivers may help probation and law enforcement officers discover evidence of a sex offender probationer‘s recidivism despite his or her efforts to conceal new offenses. Further, by increasing the threat of detection, Fourth Amendment waivers may compel sex offender probationers to comply with the terms of their probation and otherwise remain on good behavior for the duration of their suspended sentences.
In thе present case, the probation condition requiring Murry to waive his Fourth Amendment search rights is reasonable when viewed in light of the circumstances of this case. Although Murry has no past history of similar criminal behavior, the nature of the offenses and the circumstances surrounding them justify the circuit court‘s imposition of the challenged probation condition.
The circuit court described Murry as a sexual predator. He engaged in a pattern of long-term sexual abuse of B.W. that culminated in her rape when she was thirteen years old. Murry molested B.W. once or twice per week for eight years. This continuous sexual abuse of B.W. constituted a “grooming” process designed to break down her opposition to Murry‘s escalating sexual abuse. When Murry eventually raped B.W., he had already abused her hundreds of times over an eight-year period beginning when she was only five years old. Murry told B.W. that the rape was “okay,” and B.W. did not tell anyone about it for over a year.
Despite its regular pattern and frequency, Murry
The pattern of Murry‘s sexual abuse of B.W. and his ability to successfully conceal that abuse demonstrate the need for his increased supervision upon his release from incarceration.
Although Murry was еvaluated as posing a relatively low threat of recidivism for a sex offender, the circuit court could reasonably be concerned about his possible recidivism given the particular details of his offenses. See McKune, 536 U.S. at 32-33, 122 S.Ct. at 2023-25 (sex offenders have a high rate of recidivism). Murry molested a child hundreds of times over an eight-year period, “grooming” hеr to accept future sexual abuse without opposition. At trial, Murry refused to take responsibility for his actions, denying any abuse prior to B.W.‘s rape and claiming that his intercourse with the thirteen year old was instigated by her and was consensual. This manipulative and consistent abuse, coupled with Murry‘s refusal to take responsibility for his actions, could reasonably lead the circuit court to conclude that Murry might reoffend. The probation condition subjecting Murry to suspicionless searches may facilitate the discovery of evidence of similar crimes or other related probation violations should Murry reoffend in the future.
The challenged probation condition is increasingly imрortant given Murry‘s ability to successfully conceal his offenses for long periods of time. In the present case, Murry concealed his sexual abuse of B.W. from her family and the community for an extended period. Although he will be under increased scrutiny due to his status as a sex offender and the additional probation conditions triggered by that status, it was not unreasonable for the circuit court to conclude that Murry could possibly elude this scrutiny if he reoffends in the future. Under such circumstances, there would be little evidence of Murry‘s new sexual abuse to support a search based on probable cause or reasonable suspicion. The probation condition requiring Murry to waive his Fourth Amendment rights and submit to suspicionless searches is the direct result of the circuit court‘s concern that Murry will reoffend and conceal his new offenses, and this concern is supported by the facts of this case.
Although a probation condition requiring the waiver of a probationer‘s Fourth Amendment search rights may not be appropriatе in every case involving a sex offender, such a condition is reasonable under the circumstances presented by this particular case. The probation condition requiring Murry to submit to searches by probation and law enforcement officers with or without reasonable suspicion facilitates his increased supervision, and thereby protects the public by ensuring that he complies with the conditions of his probation and remains on good behavior for the term of his suspended sentence. If Murry reoffends, the challenged condition will allow probation and law enforcement officers to search Murry and, possibly, to obtain evidence of crimes that might otherwise have gone undetected. The challenged condition is reasonable under the facts of this case, and the circuit court did not abuse its discretion by ordering it.
Though we agree with the circuit court‘s decision concerning the challenged probation condition, we remand this case for the correction of a scrivener‘s error in Murry‘s sentencing order pursuant to
Affirmed and remanded.