WILLIE HICKS, JR. v. COMMONWEALTH OF VIRGINIA
Record No. 1543-18-2
COURT OF APPEALS OF VIRGINIA
DECEMBER 3, 2019
CHIEF JUDGE MARLA GRAFF DECKER
Present: Chief Judge Decker, Judges Petty and Huff
Argued at Richmond, Virginia
PUBLISHED
Leslie M. Osborn, Judge
Steven D. Benjamin (Betty Layne DesPortes; Benjamin & DesPortes, P.C., on briefs), for appellant.1
Rosemary V. Bourne, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Willie Hicks, Jr., appeals his convictions for one count each of rape, aggravated sexual battery, and indecent liberties, in violation of
The appellant was twenty years old at the time of the offenses. The victim, Q.A., was his twelve-year-old female cousin. All offenses occurred during an eleven-day period of time in which the appellant and the victim were both living at a relative‘s home.
The appellant was tried for taking indecent liberties with a child, aggravated sexual battery, and five counts of rape. During the trial, the court refused two categories of evidence proffered by the appellant. It excluded evidence that the victim had genital warts and that she had previously made false accusations of sexual abuse. The court also refused the appellant‘s request to label each of the rapes in a different fashion, such as by numbering them.
Following trial, the jury convicted the appellant of one count each of indecent liberties, aggravated sexual battery, and rape. It acquitted him of the other counts of rape. He was sentenced to a mandatory term of life in prison for the rape, as well as to one year for aggravated sexual battery and twelve months for indecent liberties.
II. ANALYSIS
The appellant challenges the trial court‘s use of identical jury instructions for the five counts of rape on the ground that they failed to require that the jury was unanimous regarding the rape of which it found him guilty. He also contests the court‘s exclusion of evidence concerning a communicable virus and prior false accusations of sexual misconduct.
The appellant argues that the instructions given to the jury permitted it to find him guilty of a single count of rape without requiring that the jurors unanimously agree upon which particular incident supported that conviction.
1. Relevant Trial Events
The appellant was initially charged with eight counts of rape, each of which covered a different date or range of dates between June 12 and June 23, 2017.
At trial, the victim testified that on or about June 12, the appellant climbed into her bed and put his penis “inside” her vagina. When the prosecutor asked about “the next time,” the victim replied that she was once again “in [her] room” and that “[t]he same thing” happened. In response to a later inquiry regarding “how many times” the appellant penetrated her between June 12 and 23, the victim responded, “It was . . . more than once, but I don‘t know exactly how many,” and she indicated that each incident occurred “on a different day.” The victim subsequently clarified that the rapes occurred approximately “every other day” and that the appellant raped her a total of five rather than eight times. She then gave slightly more detailed testimony about the “last time” he raped her.
Following the crimes, the victim reported to police that her clothes hamper contained “three pairs of panties that probably ha[d] semen . . . on them.” The police collected three pairs of her underwear as evidence. The appellant‘s DNA was found in seminal fluid located along with the victim‘s blood in the “interior crotch area” of one of those pairs of underwear.
The appellant testified at trial and denied the allegations. He admitted, based on the DNA evidence, that the sperm found in the victim‘s underwear was his. Nevertheless, he denied
On the prosecutor‘s motion, the trial court dismissed three of the eight rape indictments because the victim‘s testimony supported only five rape charges. Also on the prosecutor‘s motion, the court amended the five rape indictments so that they all contained identical language, each charging the appellant with raping the victim on or about “June 12 through June 23.”
Later, during discussion among the parties and the court regarding the jury instructions, the appellant noted the need “to be able to distinguish [among the rape counts] for purposes of appeal.” He asserted that “if the jury finds [the appellant] guilty on this [rape] instruction and innocent on this [rape] instruction[,] the question for the Court of Appeals is, is there sufficient evidence to sustain its burden beyond a reasonable doubt on this rape.” He consequently argued that the court needed to devise a “way to distinguish each of the charges in the instructions [in order to] keep track on the record what evidence applies to what . . . for purposes of appeal.”
The judge inquired, “How am I going to make [the instructions] different?” The appellant replied that he did not know but said that “if [the judge did not] do it[,] the jury could be in the position of going back there and maybe ten of them think rape one happened and two of them think rape three happened.” The appellant asked about “how [he would] preserve [an objection]” under those circumstances. The judge replied that all five rape instructions “read exactly the same . . . [with the] date range on them.” He observed that he had “done them like that before” and “d[id not] think [he] c[ould] impose a date on the[m].” The appellant reiterated that not having “a way to distinguish” presented a problem. He proposed “call[ing] them rape one, rape two, rape three . . . so that the jury [would] at least [be] talking about the same charge
Following closing arguments, the court instructed the jury, “In order to return a verdict[,] each of you must agree upon the verdict.” It noted that the jury would receive “a set of verdict forms,” including “five verdict forms for rape” “because there are five counts of rape.”
One of the three verdicts returned by the jury read as follows: “We, the jury, find the defendant guilty of rape of a child under the age of thirteen while being eighteen years of age or older on or about June 12[,] 2017 through June 23[,] 2017.” The jury also convicted the appellant of indecent liberties and aggravated sexual battery. It acquitted him of the remaining four rapes. The judge then said to the jury, “[A]s we told you before, this verdict has to be a unanimous verdict.” He polled the jury regarding the verdict, and each juror responded, “Yes,” when asked if it was his or her verdict.
Counsel for the appellant noted his intent to file “a motion to strike the guilty verdict” because “we don‘t know what rape they convicted him of,” but he did not argue that the record failed to prove that the single rape verdict was unanimous. Additionally, although the appellant filed a written motion to set aside the verdict, the motion and the accompanying argument also did not challenge the rape verdict on unanimity grounds. The trial court denied the motion.
2. Juror Unanimity Regarding Offense and Preservation for Appeal
The appellant argues that the trial court‘s instructions to the jury failed to require that the verdict on the rape charge was unanimous.4
The Virginia Constitution mandates that an accused in a criminal prosecution “shall enjoy the right to a speedy and public trial, by an impartial jury . . . , without whose unanimous consent
The appellant argues that the unanimity requirement compelled the trial court to adopt his proposed method of numbering the rapes or, alternatively, to devise another way for the jury to distinguish among the five charged rapes about which it was asked to deliberate. He contends that such action was necessary to ensure that any verdict convicting him of rape involved the same single rape. The appellant suggests that the instructions given by the trial court were inadequate and “allowed for a non-unanimous verdict.” The Commonwealth asserts that the appellant did not adequately preserve the juror unanimity issue for appeal.
Of critical importance in this case is the principle that “[n]ot just any objection will do.” Thomas v. Commonwealth, 44 Va. App. 741, 750 (2005), adopted upon reh‘g en banc, 45 Va. App. 811
In short,
In the appellant‘s case, the only clear basis for his objection to the wording of the rape instructions was that “if the jury finds [the appellant] guilty on this [rape] instruction and innocent on [another rape] instruction[,] the question for the Court of Appeals is, is there sufficient evidence to sustain [the Commonwealth‘s] burden beyond a reasonable doubt on this rape.” The appellant‘s focus was on whether the evidence was sufficient to support the potential
It is true that the appellant also argued that if the instructions did not distinguish among the rape charges in some way, “the jury could be in the position of going back there and maybe ten of them think rape one happened and two of them think rape three happened.” He further proposed amending the instructions to distinguish the rape counts by numbering them, “so that the jury is . . . talking about the same charge when they‘re . . . deliberat[ing] and . . . we can tell which one is which.” However, he proposed these amendments in the context of his articulated concern over how he would preserve a challenge to the sufficiency of the evidence. The trial court ruled on that specific objection.
The appellant made no mention of the constitutional requirement that a jury verdict must be unanimous, and he alluded to it in only the most general of terms. Cf. Molina v. Commonwealth, 272 Va. 666, 672-73 (2006) (holding that the defendant waived the right to challenge his conviction on juror unanimity grounds because he did not argue “prior to submission of the instruction to the jury” that it would permit conviction on “a less than unanimous finding . . . concerning the method employed to commit the crime“). Further, after the instructions and the parties’ closing arguments, when the judge additionally advised the jury that “each of [them had to] agree upon the verdict,” the appellant did not object to the wording of that instruction or ask the court to elaborate that the principle applied to each individual rape charge. Consequently, the record does not support the conclusion that the trial court or the prosecutor, both of whom were entitled to an opportunity to respond to the appellant‘s concern, understood the nature of his objection as involving the unanimous verdict requirement. See generally Lee v. Lee, 12 Va. App. 512, 516 (1991) (en banc) (noting that it is an appellant‘s burden to present a record adequate to show that he preserved his assignment of error).
Accordingly, the appellant failed to preserve this issue for appeal. Consequently, we conclude that
B. Exclusion of Evidence of Communicable Virus
The appellant next argues that the trial court erred by excluding evidence that the complaining witness had genital warts and he did not.
At trial, the Commonwealth called Emily Horne, a pediatric nurse practitioner. Horne testified that she specialized in the examination and treatment of physical and sexual abuse of children. She examined the victim about a month after the reported abuse. On cross-examination, the appellant asked Horne if she “look[ed] for” sexually transmitted diseases during her examination of the victim, and Horne replied that she did. The prosecutor objected on “rape shield” grounds.
Outside the presence of the jury, the prosecutor argued that although the evidence might have been admissible, the appellant failed to comply with the requirement in
The appellant contends that he was entitled to introduce evidence that Q.A. had genital warts. He asserts that he did not have genital warts and consequently the fact that Q.A. allegedly had them was evidence tending to negate her claim that he repeatedly raped her.
The manner in which a trial is “conduct[ed] . . . is committed to the trial judge‘s discretion.” Breeden v. Commonwealth, 43 Va. App. 169, 184-85 (2004) (quoting Justus v. Commonwealth, 222 Va. 667, 676 (1981)). A “circuit court‘s decision to admit or exclude evidence” is also reviewed “under an abuse of discretion standard.” Herndon v. Commonwealth, 280 Va. 138, 143 (2010). “In evaluating whether a trial court abused its discretion . . . , ‘we do not substitute our judgment for that of the trial court. Rather, we consider only whether the record fairly supports [that] action.‘” Grattan v. Commonwealth, 278 Va. 602, 620 (2009) (quoting Beck v. Commonwealth, 253 Va. 373, 385 (1997)). The “abuse-of-discretion standard [also] includes review to determine that the discretion was not guided by erroneous legal conclusions.” Porter v. Commonwealth, 276 Va. 203, 260 (2008) (quoting Koon v. United States, 518 U.S. 81, 100 (1996)). “Only when reasonable jurists could not differ can we say an abuse of discretion has occurred.” Thomas, 44 Va. App. at 753.
Here, the appellant asserted at trial, after the witness began to testify on cross-examination, that evidence of the victim‘s prior diagnosis of genital warts was admissible as “an exception to [the] rape shield [statute].” However, he did not request “an evidentiary hearing” before seeking to admit the evidence as required by
To the extent that the appellant now contends that the proffered evidence was not covered by the rape shield statute at all, he failed to articulate that argument with adequate specificity at
Consequently, we conclude that all aspects of this assignment of error are waived.
C. Exclusion of Evidence of Prior False Accusations
The appellant argues that the trial court erred by excluding his proffered evidence that the complaining witness had previously made false accusations of sexual misconduct against others.
1. Relevant Trial Events
At trial, the appellant asked the court to conduct an assessment pursuant to Clinebell v. Commonwealth, 235 Va. 319 (1988), to determine, outside the presence of the jury, whether he would be permitted to offer evidence that Q.A. had previously made false accusations of sexual misconduct. As part of that assessment, the appellant questioned Tashanda Thomas Coleman, who testified that she was the first cousin of the appellant and the aunt of Q.A.
Coleman claimed that Q.A. had made prior “false accusations of sexual conduct.” She described Q.A.‘s complaints of sexual misconduct against Coleman, Coleman‘s friend, Coleman‘s son, Coleman‘s brother, and a Mr. Dewey. Coleman elaborated that after Q.A. reported that Mr. Dewey “was raping her,” Q.A. “switched it and said it was [the appellant].” According to Coleman, the Department of Social Services (DSS) investigated the complaints against everyone but Mr. Dewey and “thr[ew] out” the complaints “because [Q.A.] was found not to be truthful.”
Following the proffer, the prosecutor objected to Coleman‘s testimony based on hearsay. The judge inquired about DSS records, and the appellant admitted that he had not attempted to subpoena any records. The prosecutor represented that he had some of DSS‘s records showing that Q.A.‘s sister, but not Q.A. herself, had made various prior allegations of sexual assault. The judge said he wanted to hear directly from DSS regarding whether it had any records to substantiate Coleman‘s testimony about prior investigations, noting that “[i]f an investigation was done[, he would] probably let her testify.”
In response to the judge‘s request, DSS Director Gregory testified outside the presence of the jury for purposes of the proffer. She reported that she searched all of DSS‘s records at the court‘s request and found no “prior sexual abuse claims” by Q.A. against her aunt during any time frame.
The court then assessed the admissibility of the proffered evidence by analyzing whether, under Clinebell, it met the “threshold” requirement that “a reasonable probability of falsity
The prosecutor objected, arguing that the proffered testimony had “foundation issues,” was “speculati[ve],” and contained “multiple levels of hearsay.” He also referenced Coleman‘s bias and prior convictions for offenses involving moral turpitude. Finally, he pointed to the evidence impeaching Coleman‘s claim that Q.A. reported at least some of the allegations to DSS and DSS determined that Q.A. was being untruthful.
The appellant disputed the Commonwealth‘s claim that Coleman was biased and argued that she had firsthand knowledge of the accusation made against her personally. He argued further that the evidence was “an exception to the hearsay rule,” although he did not articulate a basis for this assertion.
The court ruled that Coleman‘s claims “with regard to others” were hearsay and double hearsay because the record provided “no basis for how she knew” those things. With regard to Coleman‘s claim that Q.A. made a false report of sexual abuse against Coleman herself and her additional claim that DSS found the complaint to be false, the court noted that “we now know that‘s not true” and no “investigation was actually done.” The court also pointed to Coleman‘s criminal record and her status as “a family member” of the appellant. The court sustained the Commonwealth‘s objection to the proffered testimony, ruling that it was not “just a question of something [going] to the jury because [the court] ha[d] to determine if . . . a reasonable probability [of] falsity exist[ed].” The judge observed that he “had an opportunity to watch” Coleman on the witness stand and concluded that her testimony “d[id] not . . . r[i]se to th[e] level” of establishing a reasonable probability that the victim had made prior false accusations of sexual abuse.
The appellant asserts that the trial court erred by excluding his proffered evidence that Q.A. had previously made false accusations of sexual misconduct against Coleman and others.9
“Appellate courts review evidentiary rulings under an abuse of discretion standard.” Campos v. Commonwealth, 67 Va. App. 690, 702 (2017) (quoting Boone v. Commonwealth, 63 Va. App. 383, 388 (2014)). This “deferential standard” means that “a ‘trial judge‘s ruling will not be reversed simply because an appellate court disagrees[.]’ [O]nly in those cases [in which] ‘reasonable jurists could not differ’ has an abuse of discretion [supporting a reversal] occurred.” Id. (quoting Thomas, 44 Va. App. at 753).
“The measure of the burden of proof with respect to factual questions underlying the admissibility of evidence is proof by a preponderance . . . .” Bloom v. Commonwealth, 262 Va. 814, 821 (2001) (quoting Witt v. Commonwealth, 215 Va. 670, 674 (1975)). The “trial court determines these facts” as part of its decision regarding whether to admit or exclude the proffered evidence. Id. Such subsidiary findings are binding on appeal “unless ‘plainly wrong’ or without evidence to support them.” Campos, 67 Va. App. at 702 (quoting McGee v. Commonwealth, 25 Va. App. 193, 198 (1997) (en banc)). However, to the extent that the admissibility determination involves a question of law, we review that issue de novo. Beckham v. Commonwealth, 67 Va. App. 654, 658 (2017); see John Crane, Inc. v. Jones, 274 Va. 581, 586-87 (2007).
“[W]hen a specific objection is made to evidence or when inquiry is made by the trial judge concerning the purpose of evidence, the proponent of the evidence has the burden of
Critical to this case is the principle that “[u]nless prior claims of sexual abuse are ‘patently untrue’ on their face,” a defendant seeking to prove such claims at trial “must proffer evidence sufficient to persuade [the] trial court of a ‘reasonable probability that the victim‘s allegations were false.‘” Roadcap, 50 Va. App. at 740 (emphasis added) (first quoting Clinebell, 235 Va. at 325; then quoting Richardson v. Commonwealth, 42 Va. App. 236, 242 (2004)). We have recognized repeatedly that “mere denial testimony” by an alleged offender “is inherently self-serving and does not, by itself, establish falsity.” Richardson, 42 Va. App. at 241, quoted with approval in Roadcap, 50 Va. App. at 740. Consequently, a trial court does not abuse its discretion when it concludes that an alleged offender‘s denial is insufficient to support the
The trial court was not required to accept Coleman‘s self-serving testimony that Q.A. previously falsely accused Coleman of sexual abuse. The record makes clear that the trial court gave conscientious consideration to the statutory requirements and the proffered evidence, and took the additional step of asking for any related information from DSS. Although Coleman testified that a DSS report corroborated her assertion regarding both the existence of Q.A.‘s complaint and its falsity, the DSS director who searched the agency‘s records testified that no investigation was conducted and no such report existed. This testimony further supports the trial court‘s conclusion that Coleman‘s allegations failed to meet the standard of establishing a reasonable probability that Q.A. made prior false allegations of sexual misconduct against Coleman.
Additionally, if a trial court need not accept a testifying witness’ self-serving statement that he or she personally did not abuse the complaining witness, the judge is similarly not required to accept as credible that witness’ testimony that third parties also did not do so. See Roadcap, 50 Va. App. at 736, 740. Finally, the appellant did not provide adequate evidence to establish Coleman‘s basis of knowledge for her claims that Q.A.‘s alleged reports about third parties were false. See
For these reasons, we hold that the trial court did not err by refusing to admit Coleman‘s proffered testimony about Q.A.‘s alleged prior false allegations of sexual misconduct.
We conclude that the appellant failed to preserve for appeal his challenge regarding juror unanimity for his single rape conviction because he did not make an adequate contemporaneous objection to the instruction and also did not object immediately after the verdict or when the jury was polled. We similarly hold that he waived his contention that the trial court improperly excluded his proffered evidence that the complaining witness had genital warts because he did not raise the issue prior to trial as required by statute. Finally, we hold that the court did not err in excluding the proffered testimony that the complaining witness had made prior false allegations of sexual abuse because the evidence supports the trial court‘s finding that the appellant failed to make threshold showings that such allegations were made and were false. Consequently, we affirm the convictions.
Affirmed.