COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Humphreys and Kelsey
Argued at Richmond, Virginia
ROBERT C. JOHNSON
OPINION BY
v. Record No. 0256-02-2 CHIEF JUDGE JOHANNA L. FITZPATRICK
MAY 20, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Cleo E. Powell, Judge
Todd M. Ritter (Daniels & Morgan, on brief),
for appellant.
Margaret W. Reed, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Robert C. Johnson (appellant) was convicted in a bench
trial of two counts of rape in violation of Code § 18.2-61, two
counts of forcible sodomy in violation of Code § 18.2-67.1 and
two counts of indecent liberties with a child in violation of
Code § 18.2-370.1. On appeal, appellant contends that: (1)
Code § 18.2-67.9, which allows child victims to testify via
closed circuit television, is unconstitutional, both facially
and as applied to him; (2) the Commonwealth failed to carry its
burden to show that the child was unable to testify in person;
and (3) the evidence was insufficient to support the
convictions. For the reasons that follow, we affirm.
I. Background
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible
therefrom. See Juares v. Commonwealth, 26 Va. App. 154, 156, 493
S.E.2d 677, 678 (1997).
In February 1998, Antrina Stokes Johnson, appellant's
girlfriend, gained temporary custody of her four-year-old
cousin, M. 1 In May 1998, appellant, Johnson, her son L, and M
moved to Virginia where appellant worked the night shift as a
jail guard. Johnson worked at Wachovia Bank from 10:00 a.m. to
3:00 p.m. and was responsible for the care of both children.
In January 1999 appellant and Johnson were married in
Virginia. In order to save money for a wedding ceremony in New
York, Johnson worked nights at a Food Lion from June 11, 1999 to
July 26, 1999. Because appellant also worked nights, Johnson
arranged for a neighbor, Keshia Light, to babysit M and L when
she worked at Food Lion. From approximately mid-June to
mid-July 1999, M visited her grandmother in New York. M
returned to Virginia in mid-July, with L, appellant's two
children from a prior marriage and appellant's niece. The
1
M had been living with her paternal grandmother in New
York state since she was three days old. The record shows that
M was born while her mother was in jail. M's grandmother had
physical custody of her continuously until she was 18 months
old. After that time, M lived with her mother and her
grandmother during the time her mother was incarcerated. The
record is unclear why custody changed from the grandmother to
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entire family returned to Buffalo, New York on August 20, 1999,
and Johnson returned custody of M to her father at that time. 2
On December 4, 2000, North Carolina Child Protective
Services (CPS) took custody of M, age seven, from her father and
placed her in foster care with Matty Williams. When she arrived
at Williams' home, Williams gave her a bath. Consistent with
her normal practice, Williams asked M to show Williams her
private parts and asked M if anyone had ever touched her there.
M replied, "No ma'am." A few days later, M complained to
Williams of blood in her urine. After a visit to the doctor, M
told Williams "whenever my cousin would go to work, . . . her
husband would come to my room . . . he would make me put his
private in my mouth." At one point, M told Williams that she
thought appellant was trying to kill her. When asked why, M
said "he put his privates into her, and she couldn't breathe.
That's why she thought he was trying to kill her." M initially
told Williams that she was five when this occurred; but later
said she was six. M identified appellant as the person who
committed the acts.
Dr. Sarah Sinal, a professor of pediatrics at Wake Forest
University, performed a complete physical on the child. She
found that the child's "hymen appeared asymmetric with
the Johnsons.
2
M then spent approximately a month with her father before
leaving with her paternal grandmother to go to California. At
the end of one year, M was returned to North Carolina and
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significant narrowing between twelve and two o'clock."
Dr. Sinal stated that "some children have narrower hymens than
others. But in general there is a fair amount of symmetry."
Dr. Sinal attributed the condition of M's hymen to trauma "and
as it healed there was a loss of tissue." Dr. Sinal stated that
M "had a physical injury . . . that was compatible with having
been painfully penetrated." Dr. Sinal's medical opinion was
that M was "a sexually abused child."
The Commonwealth filed a pretrial motion pursuant to Code
§ 18.2-67.9 to allow M to testify via two-way closed circuit
television. The trial court conducted two hearings on the
motion and received testimony from two experts, Detective Sherry
Kendall and Dr. Pamela Waaland, a licensed clinical psychologist
who specialized in child and adolescent psychology and
neuropsychology. Dr. Waaland testified that "it would be very
traumatic" for M to testify. "In fact, [M] told [Waaland] she
wouldn't be able to do it and she would run out of court and run
away." (Emphasis added). M told Waaland she would feel "scared"
if she had to testify in front of appellant. The experts
concluded that M would likely suffer severe emotional trauma if
she had to testify in front of appellant. The trial court
granted the Commonwealth's motion over appellant's objection.
The trial court convicted appellant of two counts of rape,
two counts of forcible sodomy and two counts of indecent
remained in North Carolina with her father and stepmother.
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liberties with a child and sentenced him to 40 years for each
charge of rape and each charge of forcible sodomy, and 5 years
for each count of indecent liberties, for a total of 170 years.
The trial court ordered that appellant serve his sentences
concurrently, and suspended 30 years and 9 months of each rape
and sodomy sentence, leaving nine years, three months to be
served.
II. Constitutionality of Code § 18.2-67.9
Appellant first contends that Code § 18.2-67.9 is
constitutionally infirm, both facially and as applied to him,
because it violates his Sixth Amendment right to confront the
witnesses against him. We disagree.
A. Facial Validity
"In assessing the constitutionality of a statute, we must
presume that the legislative action is valid. The burden is on
the challenger to prove the alleged constitutional defect."
Woolfolk v. Commonwealth, 18 Va. App. 840, 848, 447 S.E.2d 530,
534 (1994). "Every act of the legislature is presumed to be
constitutional, and the Constitution is to be given a liberal
construction so as to sustain the enactment in question, if
practicable." Moses v. Commonwealth, 27 Va. App. 293, 298, 498
S.E.2d 451, 454 (1998).
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It has long been established that every
presumption is to be made in favor of an act
of the legislature, and it is not to be
declared unconstitutional except where it is
clearly and plainly so. Courts uphold acts
of the legislature when their
constitutionality is debatable, and the
burden is upon the assailing party to prove
the claimed invalidity.
Santillo v. Commonwealth, 30 Va. App. 470, 476, 517 S.E.2d 733,
736 (1999) (citing Peery v. Virginia Board of Funeral Directors
and Embalmers, 203 Va. 161, 165, 123 S.E.2d 94, 97 (1961)).
"The Sixth Amendment's Confrontation Clause, made applicable
to the States through the Fourteenth Amendment, provides: 'In all
criminal prosecutions, the accused shall enjoy the right to be
confronted with the witnesses against him.'" Ohio v. Roberts, 448
U.S. 56, 62-63 (1980). However, the Supreme Court has "never
held . . . that the Confrontation Clause guarantees criminal
defendants the absolute right to a face-to-face meeting with
witnesses against them at trial." Maryland v. Craig, 497 U.S.
836, 844 (1990) (emphasis in original). Instead, "certain narrow
circumstances . . . may warrant dispensing with confrontation at
trial." Id. at 848.
To be sure, face-to-face confrontation may
be said to cause trauma for the very purpose
of eliciting truth but we think that the use
of Maryland's special procedure, where
necessary to further the important state
interest in preventing trauma to child
witnesses in child abuse cases, adequately
ensures the accuracy of the testimony and
preserves the adversary nature of the trial.
Indeed, where face-to-face confrontation
causes significant emotional distress in a
child witness, there is evidence that such
confrontation would in fact disserve the
Confrontation Clause's truth-seeking goal.
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Id. at 856-57 (emphasis in original).
In Craig, the Supreme Court considered a Maryland statute
similar to Code § 18.2-67.9 and held that where
the State makes an adequate showing of
necessity, the state interest in protecting
child witnesses from the trauma of
testifying in a child abuse case is
sufficiently important to justify the use of
a special procedure that permits a child
witness in such cases to testify at trial
against a defendant in the absence of
face-to-face confrontation with the
defendant.
Id. at 855. Craig established three further requirements: (1)
the finding of necessity must be case-specific; (2) the child
must be "traumatized, not by the courtroom generally, but by the
presence of the defendant"; and (3) the emotional distress
suffered by the child witness must be more than "mere nervousness
or excitement or reluctance to testify." Id. at 855-56. All
three requirements are embodied in Code § 18.2-67.9.
Code § 18.2-67.9 provides:
A. The provisions of this section shall
apply to an alleged victim who was fourteen
years of age or under at the time of the
alleged offense and is sixteen or under at
the time of the trial and to a witness who
is fourteen years of age or under at the
time of the trial.
In any criminal proceeding, including
preliminary hearings, involving an alleged
offense against a child, relating to a
violation of the laws pertaining to
kidnapping (§ 18.2-47 et seq.), criminal
sexual assault (§ 18.2-61 et seq.) or family
offenses pursuant to Article 4 (§ 18.2-362
et seq.) of Chapter 8 of Title 18.2, or
involving an alleged murder of a person of
any age, the attorney for the Commonwealth
or the defendant may apply for an order from
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the court that the testimony of the alleged
victim or a child witness be taken in a room
outside the courtroom and be televised by
two-way closed-circuit television. The
party seeking such order shall apply for the
order at least seven days before the trial
date or at least seven days before such
other preliminary proceeding to which the
order is to apply.
B. The court may order that the testimony
of the child be taken by closed-circuit
television as provided in subsection A if it
finds that the child is unavailable to
testify in open court in the presence of the
defendant, the jury, the judge, and the
public, for any of the following reasons:
1. The child's persistent refusal to
testify despite judicial requests to do so;
2. The child's substantial inability to
communicate about the offense; or
3. The substantial likelihood, based upon
expert opinion testimony, that the child
will suffer severe emotional trauma from so
testifying.
Any ruling on the child's unavailability
under this subsection shall be supported by
the court with findings on the record or
with written findings in a court not of
record.
C. In any proceeding in which
closed-circuit television is used to receive
testimony, the attorney for the Commonwealth
and the defendant's attorney shall be
present in the room with the child, and the
child shall be subject to direct and
cross-examination. The only other persons
allowed to be present in the room with the
child during his testimony shall be those
persons necessary to operate the closed-
circuit equipment, and any other person
whose presence is determined by the court to
be necessary to the welfare and well-being
of the child.
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D. The child's testimony shall be
transmitted by closed-circuit television
into the courtroom for the defendant, jury,
judge and public to view. The defendant
shall be provided with a means of private,
contemporaneous communication with his
attorney during the testimony.
By its terms, the statute requires a "case-specific" showing
of necessity. Specifically, in accordance with Craig's mandate,
Code § 18.2-67.9(B) requires the trial court to find that the
child is unavailable to testify in open court in the presence of
the defendant because: the child refuses to testify; the child
is unable to communicate; or there is a "substantial likelihood
. . . that the child will suffer severe emotional trauma." Thus
Code § 18.2-67.9 satisfies all the requirements set forth in
Craig. Additionally, any ruling that the child is unavailable
must be supported by findings on the record.
Furthermore, Code § 18.2-67.9 preserves for the defendant
all of the other elements of the
confrontation right: the child witness must
be competent to testify and must testify
under oath; the defendant retains full
opportunity for contemporaneous
cross-examination; and the judge, jury, and
defendant are able to view (albeit by video
monitor) the demeanor (and body) of the
witness as he or she testifies.
Craig, 497 U.S. at 851. Indeed, Code § 18.2-67.9 goes beyond the
requirements of Craig by providing for testimony via two-way
closed-circuit television, rather than the one-way closed-circuit
television testimony upheld in Craig. This additional element
provides even greater protections for a criminal defendant and
more closely mirrors a courtroom environment. For example, it
allows the trial judge to make instantaneous rulings on
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objections or give instructions to the witness without any break
in the proceedings. "[W]e think these elements of effective
confrontation not only permit a defendant to 'confound and undo
the false accuser, or reveal the child coached by a malevolent
adult,' but may well aid a defendant in eliciting favorable
testimony from the child witness." Id. (quoting Coy v. Iowa, 487
U.S. 1012, 1021 (1988)). Accordingly, we hold that Code
§ 18.2-67.9 comports with the requirements of both Craig and the
Sixth Amendment's Confrontation Clause.
B. Validity as Applied
Next, appellant contends that even if Code § 18.2-67.9 is
constitutional as drafted, it is unconstitutional as applied to
him. Appellant argues that the trial court failed to require
that the trauma would have a "distorting" effect on the child's
testimony or that the trauma was so severe that the use of the
closed-circuit television system was "necessary" because the
witness would otherwise be unable to testify. We disagree.
Having found Code § 18.2-67.9 constitutional, we need only
determine whether the trial court adhered to the statutory
requirements in this case. The trial court found
that the victim is unable to testify in open
court in the presence of the defendant, the
jury, the judge and the public; and . . .
the finding of unavailability is based on
expert testimony that there is a substantial
likelihood that the child will suffer severe
emotional trauma from so testifying.
The record establishes that the trial court took the additional
step of requiring the Commonwealth to have M undergo an
independent psychological examination prior to making a decision
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on the necessity of using closed-circuit television at trial.
The psychologist opined that "it would be very traumatic" for M
to testify in open court in front of appellant. Dr. Waaland
specifically stated that if required to testify, M said "she
wouldn't be able to [testify in front of appellant] and she would
run out of court and run away." (Emphasis added). Despite
appellant's contention that there was no connection between M's
fear of testifying in front of appellant and her ability to
testify, the record is clear. Thus, there was a finding of
"necessity" in the instant case and the evidence before the trial
court supported that finding.
The record also proves that the "other elements" of
appellant's confrontations rights were met. Specifically, the
trial court found M to be competent to testify; she testified
under oath; appellant retained the full opportunity for
contemporaneous cross-examination; and the fact finder was able
to view M's demeanor. See Craig, 497 U.S. at 851. Additionally,
appellant had the opportunity to communicate privately with his
counsel during M's remote testimony. The trial court followed
the statutory requirements and applied them correctly. We
therefore conclude that the application of Code § 18.2-67.9 in
the instant case did not violate appellant's constitutional
protections.
III. Unavailability of Child Victim
Next, appellant contends that the Commonwealth failed to
carry its burden of proving a substantial likelihood that the
child victim would suffer severe emotional trauma as a result of
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testifying in open court in his presence. Appellant argues that
the experts did not sufficiently substantiate their conclusions
of "severe emotional trauma."
"In determining the weight to be given the testimony of an
expert witness, the fact finder may consider the basis for the
expert's opinion. The credibility and weight of witnesses'
testimony is determined by the fact finder." Parrish v.
Commonwealth, 38 Va. App. 607, 613, 567 S.E.2d 576, 578-79
(2002). "While . . . nervousness by itself is insufficient to
establish severe emotional trauma, the evidence here included
more than nervousness." Id. at 612-13, 567 S.E.2d at 578.
The Commonwealth offered two experts at the pretrial hearing
to determine the appropriateness of closed-circuit television
testimony. Both experts, Dr. Waaland and Detective Kendall,
opined that M would suffer severe emotional distress if she had
to testify in front of appellant and was "withdrawn." Because of
this, it would be unlikely M would be capable of testifying in
appellant's presence.
Dr. Waaland stated that she met personally with M and
performed various psychological tests. These included
self-esteem and anxiety measurements, "projective drawings" and
"some intelligence testing to make sure that [M's] reasoning,
judgment, memory was intact [sic]." Dr. Waaland stated, "[M] has
low self-esteem. She reports feeling ashamed. On the anxiety
measures, [M] scored very high, which puts her at risk." Dr.
Waaland testified that "it would be very traumatic" for M to
testify in front of appellant. "In fact, [M] told [Dr. Waaland]
she wouldn't be able to do it and she would run out of court and
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run away." M told Dr. Waaland she would feel "scared" if she had
to testify in front of appellant.
Code § 18.2-67.9 does not require a finding that the
testimony would be "distorted." Rather it requires the trial
court to find a substantial likelihood that M would suffer severe
emotional trauma as a result of testifying in open court in front
of appellant. This determination was based on the testimony of
two experts, whose credibility was for the trier of fact to
determine. Credible evidence supports the trial court's finding.
IV. Sufficiency of the Evidence
Lastly, appellant contends the evidence was insufficient to
support the convictions. He argues that the victim's testimony
was inherently incredible and the evidence proved a lack of
opportunity for him to commit the crimes.
"When the sufficiency of the evidence is challenged on
appeal, we determine whether the evidence, viewed in the light
most favorable to the prevailing party, the Commonwealth, and the
reasonable inferences fairly deducible from that evidence support
each and every element of the charged offense." Haskins v.
Commonwealth, 31 Va. App. 145, 149-50, 521 S.E.2d 777, 779
(1999). "In so doing, we must discard the evidence of the
accused in conflict with that of the Commonwealth, and regard as
true all the credible evidence favorable to the Commonwealth and
all fair inferences that may be drawn therefrom." Watkins v.
Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998).
A. M's Credibility
"Witness credibility, the weight accorded the testimony and
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the inferences to be drawn from proven facts are matters to be
determined by the fact finder." Byers v. Commonwealth, 37 Va.
App. 174, 179, 554 S.E.2d 714, 716 (2001). "The judgment of a
trial court sitting without a jury is entitled to the same weight
as a jury verdict and will not be set aside unless it appears
from the evidence that the judgment is plainly wrong or without
evidence to support it." Reynolds v. Commonwealth, 30 Va. App.
153, 163, 515 S.E.2d 808, 813 (1999).
M testified unequivocally that appellant "told [her] to suck
his private part" and that he put his private part "in [her]
mouth." Then, "He told me to lay back down. . . . He got on top
of me . . . [and] [h]e put his private part into mine." M stated
that she could not breathe because appellant, who weighed 310
pounds, was laying on her stomach. When asked how she knew
appellant was inside her, M stated "because I feeled [sic]
it. . . . It hurted [sic]." She stated that this activity
happened on more than one occasion and that each time was the
same. M said she told appellant to "stop" but that he did not.
She explained that she did not tell her cousin "Cause he told me
not to. I was scared."
This account comports with the other evidence adduced at
trial. First, M gave her foster mother, Matty Williams, a
substantially similar account when she initially made her
complaint. Williams stated that M told her that she thought that
appellant was trying to kill her because he was so heavy she
could not breathe. "[M] said [appellant] put his privates into
her, and she couldn't breathe. That's why she thought he was
trying to kill her." Additionally, M's testimony is consistent
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with a drawing she did at Dr. Waaland's instruction.
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She drew a picture of herself underneath, on
the bed, [appellant] on top of her. At
first she draw [sic] him her size, then she
erased and said he was big, he smothered me,
and very large out of her mouth she draw
[sic] a little [balloon] that said, Stop,
and she was screaming.
Finally, the medical evidence showed that M "is a sexually abused
child." Dr. Sinal explained that M's hymen had narrowing at the
twelve to two position and that it was asymmetrical. Dr. Sinal
stated that in her medical opinion the condition of M's hymen was
consistent with "a painful penetrating injury." Credible
evidence supported M's account.
B. Lack of Opportunity
Lastly, appellant contends that he lacked the opportunity to
commit the crimes. M stated that appellant subjected her to the
abuse at night while her cousin was at work. She also stated
that the only other person in the house on these occasions was
Johnson's son, L.
At trial, appellant submitted his work records and those of
his wife. 3 Several witnesses testified regarding the summer
visitation M had with her paternal grandmother and appellant's
summer visitation with his children from a prior marriage. Taken
together, this evidence showed that there were only two possible
nights (June 11 and 15) that satisfied the conditions M
3
There were a total of eleven days appellant was not at
work but Johnson was working at night. They were: June 11, 15,
24, and 28 and July 3, 7, 8, 12, 15, 21 and 26.
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gave. Although both Johnson and Light testified that Light
generally watched the children when Johnson was working, neither
could say whether the children were with Light on those two
evenings.
The trial court stated,
I think the case is about who you believe
. . . it basically comes down to two people.
It comes down to [M] and it comes down to
[appellant]. And it comes down to who I
believe. Because if I believe [M], then
[appellant] can't be telling the truth. And
if I believe [appellant] then [M] can't be
telling the truth. . . .
[T]here are some issues of timing and
elements of time and where she was and who
[M] was with . . . and [counsel] does a good
job of narrowing it down to possibly two
nights.
* * * * * * *
It comes down to who I believe. That's what
it comes down to. . . . And so I come down
to why would [M] say it was you, Mr.
Johnson? And God help me if I'm wrong, but
the only conclusion I can come to, sir, is
because it was you.
Credible evidence supports the trial court's findings.
Accordingly, the judgment of the trial court is affirmed.
Affirmed.
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