Parrish v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Frank, Humphreys and Agee
Argued at Chesapeake, Virginia

COREY PARRISH
OPINION BY
v. Record No. 1113-01-1 JUDGE ROBERT P. FRANK
AUGUST 13, 2002
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Wilford Taylor, Jr., Judge

Charles E. Haden for appellant.

Marla Graff Decker, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.

Corey Parrish (appellant) was convicted in a bench trial of

animate object sexual penetration of his six-year-old daughter,

in violation of Code § 18.2-67.2. On appeal, he contends the

trial court violated his right of confrontation by allowing the

victim to testify by closed-circuit television, pursuant to Code

§ 18.2-67.9. For the reasons stated, we affirm appellant's

conviction.

BACKGROUND 1

Prior to trial, the Commonwealth filed a motion to use

closed-circuit television, pursuant to Code § 18.2-67.9, to

allow K.P., the six-year-old victim, to testify outside the

1
We do not recite the facts of the offense, since they are
irrelevant to this analysis.
presence of appellant. Appellant opposed this motion. At a

pretrial hearing on the motion, the Commonwealth called Robin

Bigford as an expert witness. 2

Upon completion of the voir dire, the circuit court ruled

Bigford was qualified to testify as an expert on the sexual

abuse of children. Bigford said she was aware of the

circumstances surrounding the abuse charges. She testified she

met with K.P. on three occasions, and they discussed the

upcoming trial, including some trial procedures and terminology.

According to Bigford, K.P. had a "very difficult time

talking about court." Indeed, even when Bigford attempted to

use dolls and chairs to simulate a courtroom setting, K.P. did

not want to participate.

Additionally, when Bigford was playing house with K.P., to

determine if the child would "play out" anything that happened

to her in the home, she became very nervous when pretending the

father was giving the baby a bath. She told Bigford, who had

the father doll, "[N]o, no, stop it." K.P. then said the father

doll was "naughty or bad," had him go onto the roof of the

dollhouse "for a long time," and said he was not allowed to eat

with the family.

2
While appellant objected to Bigford's qualification as an
expert witness and appealed on that issue as well, the appeal
was not granted on that issue. Therefore, we do not recite her
qualifications.

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 K.P. did verbally express her fear of the courtroom. She

told Bigford that she did not want to talk in front of her

father, and she appeared "[n]ervous and distracted." She ran

around the room after making the statement. K.P. also expressed

her nervousness about testifying to a school counselor.

At the most recent session with Bigford, a few days before

the hearing, K.P. was "especially nervous" and was "throwing

doll furniture around." When Bigford asked if she knew what was

going to happen in a few days, K.P. indicated on Wednesday she

was going to court.

Bigford opined K.P. would "suffer severe emotional trauma"

if she testified in open court in front of appellant, "because

of her young age and her fears and because she is not ready at

this point. She does not understand enough about court, for

instance." Bigford explained, "She is nervous if I bring up

anything about court. When I talk about other things she is not

nervous, but when I talk about court she is nervous and her eyes

got really big when we talked about court." In fact, the only

time K.P. sat quietly and "looked very scared" during a session

was when they were discussing court. Bigford later explained

that the nature of the charges, together with this fear of

court, increased the likelihood of severe emotional trauma.

On cross-examination, Bigford explained her opinion was

based on "[K.P.'s] behaviors and also what she has stated. Her

young age and the fact that she has a short attention span, [and

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she] does not seem able to deal with stress well from what I've

seen." She also noted that the child was not "very verbal" and

possibly suffered from Attention Deficit Disorder, thus making

the open court appearance more traumatizing for her.

K.P. told Bigford that she had testified in juvenile and

domestic relations district court and "didn't want to do it

again. She seemed to feel that she had done it once and she

shouldn't have to do it again."

When asked on cross-examination what specific emotional

trauma K.P. would suffer from testifying in front of appellant,

Bigford said she could not specify particular "symptoms" or

explain the precise effect on her personality. Bigford

explained the emotional trauma could manifest itself in

nightmares, bed-wetting, "not doing well at school," or "not

eating very well . . . . There could be a lot of behaviors that

would express this." She further explained:

The emotional trauma would be something that
she would feel, something that she would
have to work out in therapy. I can't state
exactly how this would be displayed. I can
just state that it's my clinical opinion
that she would suffer that emotional trauma
and that it would be severe.

Bigford also opined that K.P. would feel less apprehensive

testifying on closed-circuit television and that setting would

be less emotionally traumatizing. Bigford further believed K.P.

would be able to communicate better using this procedure.

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 At the conclusion of the hearing, the trial court granted

the Commonwealth's motion to allow K.P. to testify by

closed-circuit television. The trial court was satisfied that

"there is substantial likelihood that the child will suffer

severe emotional trauma" if she testified in open court in the

presence of appellant. The court noted, "[S]he's a

[six]-year-old child, the father is the alleged perpetrator, and

we have the opinion of an expert, clinical opinion of an expert,

that supports the Commonwealth's motion . . . ."

ANALYSIS

Appellant does not contest the constitutionality of Code

§ 18.2-67.9, 3 only its application to the facts of this case.

3
Code § 18.2-67.9 states, in part:

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

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Specifically, he contends the trial court erred in allowing the

six-year-old victim to testify by closed-circuit television

because the evidence did not support the court's finding that

she would suffer "severe emotional trauma" by testifying in open

court. He argues "nervousness" is not sufficient proof of

"severe emotional trauma" under Code § 18.2-67.9. While we

agree nervousness by itself is insufficient to establish severe

emotional trauma, the evidence here included more than

nervousness.

When reviewing the decisions of a trial court, we give

great weight to the court's factual findings, which will not be

disturbed on appeal unless plainly wrong or without evidence to

support them. See Brooks v. Rogers, 18 Va. App. 585, 587, 445

S.E.2d 725, 726 (1994); Shackleford v. Commonwealth, 262 Va.

196, 203-04, 547 S.E.2d 899, 903 (2001). We also view the

evidence and all reasonable inferences in the light most

favorable to the party prevailing below. Byers v. Commonwealth,

37 Va. App. 174, 179, 554 S.E.2d 714, 716 (2001).

"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." Street v. Street, 25 Va. App. 380, 387, 488

S.E.2d 665, 668-69 (1997) (en banc) (citation omitted). The

with written findings in a court not of
record.

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credibility and weight of witnesses' testimony is determined by

the fact finder. Byers, 37 Va. App. at 179, 554 S.E.2d at 716.

In Maryland v. Craig, 497 U.S. 836, 841 (1990), the Supreme

Court of the United States upheld a Maryland statute similar to

Code § 18.2-67.9. The Supreme Court found:

[I]f 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. We believe the Commonwealth made an adequate showing

of necessity in this case.

Appellant contends Bigford only opined K.P. would suffer a

generalized feeling of nervousness if she testified in front of

her father. The record belies this contention. In fact, Bigford

specifically testified that in sexual abuse cases, "much more is

involved than just someone being uncomfortable about testifying

in front of the offender."

Bigford testified she met with six-year-old K.P. on three

occasions. Bigford explained K.P. "had a very difficult time

talking about court" and did not want to "talk" in front of

appellant, her father. Bigford further testified that, after the

victim expressed concern about "talking" in front of appellant,

she became nervous and distracted and threw things around the

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room. K.P. also became nervous when Bigford pretended a father

doll was bathing a baby doll. 4

K.P. was not a verbal child and had a short attention span,

possibly suffering from Attention Deficit Disorder. She did not

deal with stress well. Bigford opined K.P. would suffer severe

emotional trauma if required to testify in open court. This

trauma could manifest itself through, for example, nightmares,

bed-wetting, doing poorly in school, and lack of appetite. K.P.

was already exhibiting a poor appetite. Bigford further opined

that K.P. likely would feel less apprehensive about testifying on

closed-circuit television, which would be less emotionally

traumatizing and enable her to communicate better.

In his ruling, the trial judge relied on the victim's age,

that her father was the accused perpetrator, and Bigford's expert

testimony. Based on these factors, he found a substantial

likelihood existed that K.P. would suffer severe emotional trauma

if she testified in open court in the presence of her father.

The expert's opinion was based on observations and

interaction with the six-year-old victim and on her experience

and training as a counselor of sexually abused children. She

noted the child's behavioral responses whenever her court

appearance was mentioned. She further noted possible future

behavioral problems. She indicated therapy would be needed to

resolve this trauma. Bigford, in great detail, explained the

clinical basis for her opinion. Based on this record, we cannot

say the trial court erred in finding a substantial likelihood

4
One of the allegations involved appellant abusing K.P.

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that, based upon expert opinion testimony, K.P. would "suffer

severe emotional trauma from so testifying." Code § 18.2-67.9.

Appellant also argues no evidence allowed the court to

adduce K.P. was "unavailable to testify," as required by Code

§ 18.2-67.9, since she had testified in person at the preliminary

hearing. While appellant is correct that the victim must be

"unavailable" under Code § 18.2-67.9, unavailability may be shown

by (1) "refusal to testify," (2) "substantial inability to

communicate about the offense," or (3) "substantial likelihood,

based on expert opinion testimony, that the child will suffer

severe emotional trauma from so testifying." Code § 18.2-67.9.

Thus, under the express terms of the statute, if the Commonwealth

proves any one of these three situations exists, it has proven

unavailability. Since the trial court correctly concluded that

the Commonwealth proved "severe emotional trauma" under Code

§ 18.2-67.9(B)(3), we find the victim was "unavailable."

Appellant next contends, even if "severe emotional trauma"

was proven, the closed-circuit television arrangements used in
this case failed to ensure the reliability of the victim's

testimony and did not impress upon the child the seriousness of

the proceeding. Appellant maintains that, on cross-examination,

the victim was allowed to color in a coloring book, which

distracted the child and prevented her from responding to the

attorney's questions. As the Commonwealth correctly points out,

this argument was not made at trial and, therefore, is barred

from our review by Rule 5A:18.

during her bath.

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 At no time during trial did appellant object to the child

having a coloring book. At no time did appellant object to any

procedure involved in the closed-circuit television testimony.

Although appellant asked the child to stop coloring on two

occasions, he made no objection to the trial court, asking that

the coloring book be removed or that the child be instructed to

stop coloring or to pay attention. The trial court was not asked

to intercede in the progress of cross-examination in any way,

except for appellant's request for a five-minute break. 5 At no

time throughout the trial did appellant object to the effect of

the coloring book on the child's testimony.
"No ruling of the trial court . . . will be considered as a

basis for reversal unless the objection was stated together with

the grounds therefor at the time of the ruling, except for good

cause shown or to enable the Court of Appeals to attain the ends

of justice." Rule 5A:18. See also Jacques v. Commonwealth, 12

Va. App. 591, 593, 405 S.E.2d 630, 631 (1991). A contrary rule

would "deny the trial court the opportunity to consider and

weigh, and, if necessary, reconsider before finally ruling."
Floyd v. Commonwealth, 219 Va. 575, 584, 249 S.E.2d 171, 176

(1978). See also Mounce v. Commonwealth, 4 Va. App. 433, 435,

357 S.E.2d 742, 744 (1987). The trial court here was never asked

to amend the procedures used during K.P.'s testimony.

To avail himself of the "miscarriage of justice" exception

to Rule 5A:18, an appellant must "affirmatively show . . . the

error [that has occurred was] clear, substantial and material."

5
Counsel then withdrew this request.

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Brown v. Commonwealth, 8 Va. App. 126, 132, 380 S.E.2d 8, 11

(1989). Such circumstances are not demonstrated in this record.

While K.P.'s testimony was, at times, confusing, inexact, or

inconsistent, nothing suggests the coloring book clearly,

substantially, and materially contributed to this problem such

that a miscarriage of justice occurred. This witness was six

years old, testifying about sexual abuse by her father. She had

attention deficit problems and difficulty expressing herself

verbally. Rule 5A:18, therefore, prevents our review of this

issue.
CONCLUSION

For the reasons stated above, we affirm the trial court's

ruling.

Affirmed.

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