COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Haley and Senior Judge Annunziata
Argued at Alexandria, Virginia
LIONEL NICHOLAS CAMPBELL
MEMORANDUM OPINION* BY
v. Record No. 1443-05-4 JUDGE JAMES W. BENTON, JR.
DECEMBER 19, 2006
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Burke F. McCahill, Judge
Lorie E. O’Donnell, Public Defender, for appellant.
Karen Misbach, Assistant Attorney General (Robert F. McDonnell,
Attorney General, on brief), for appellee.
The trial judge convicted Lionel Nicholas Campbell of rape. Campbell contends the trial
judge erred in admitting the report of a “sexual assault nurse examiner” as a business record
exception to the hearsay rule. He further contends the evidence was insufficient to support his
conviction for rape because the evidence failed to corroborate his confession. We affirm the
conviction.
I.
The grand jury indicted Lionel Nicholas Campbell for having sexual intercourse with a
teenager against her will by force, threat, or intimidation, in violation of Code § 18.2-61. At trial,
the grandmother of the fourteen-year-old girl testified she took the teenager, who is her daughter’s
child, to a hospital after the teenager told her about an incident involving the teenager and
Campbell. Campbell is married to the teenager’s mother.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
After the police received a report of the incident, a police officer met with the teenager and
her grandmother, and the officer then contacted a sexual assault nurse examiner. The officer
brought them to the nurse for an examination, and he later obtained a warrant to arrest Campbell.
Campbell was arrested in South Carolina two months later and was extradited to Virginia. After
returning to Virginia, Campbell agreed to be interviewed by the police and made statements the
police recorded.
The transcript of the statements was offered in evidence. In the interview, Campbell said he
discovered that his wife, who was visiting in Jamaica when these events occurred, was having a
romantic affair with a man in Jamaica. Campbell said he became distressed when he learned of his
wife’s affair; he blamed the teenager, his wife’s daughter, for the breakup of his marriage.
Campbell testified the teenager remained in his care while her mother was in Jamaica, and he
described instances he said demonstrated the teenager’s disrespectful conduct toward him.
One night after Campbell talked to his wife on the telephone, he permitted the teenager to
visit at her friend’s home. Later that night, Campbell woke from a dream about his wife, “got a
knife and . . . thought about slitting [his] wrist.” He telephoned the teenager and told her to come
home. He explained he wanted to talk to her about her disrespectful conduct. When the teenager
arrived home, Campbell angrily sent her to her room. Blaming the teenager for his wife leaving, he
directed her to remove her clothing, giving as his reason the marital problems he was experiencing.
When the teenager asked him why he was holding a knife, Campbell said he “looked at her and
thought, and put it down.”
Campbell then “tried to have sex with her.” He said he took her to his room to obtain a
lubricant because he didn’t want to hurt her. In his bedroom, he began having sexual intercourse
with the teenager, saying “it’s your fault.” He testified he “never actually held her down [but] . . .
just told her what to do.” As this was occurring, the teenager asked why he was “doing it so hard.”
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The next day Campbell became worried when the teenager did not return home from school.
He went to the school searching for her because he knew “she [was] mad at [him]” and he “needed
to know if she was OK.” He said he “was hoping she didn’t do anything to herself as a result [of the
incident].” The following day, he called the school because she had not returned home. Later that
day she called him from school and “said she was OK and she said she was still hurt.” He asked if
she informed anyone about the events and told her he was sorry. Campbell said he later drove to
South Carolina after he “heard about jail and [an] arrest warrant.”
In the interview, Campbell also said he threatened the teenager and told her not to tell
anyone about the event. He did not specify when he made this threat. Campbell also said he had
twice engaged in consensual “sex” with the teenager a year before this incident, explaining she
initiated those prior events.
In addition to the transcript of Campbell’s statements, the prosecutor introduced in evidence
a certificate of analysis concerning human biological materials obtained from the teenager and
Campbell. A forensic technician testified, “the DNA profile that was foreign to [the teenager] that
was obtained from the sperm fraction of her vaginal/cervical swabs is consistent with the DNA
profile of Campbell.” She testified, “[t]herefore, Campbell cannot be eliminated as a possible
contributor to this genetic material.” She further testified that the probability of randomly selecting
an unrelated individual with the same DNA profile was one in greater than six billion.
Over a hearsay objection, the trial judge admitted in evidence a report of a sexual assault
nurse examiner. The judge ruled the report was a business record. The report disclosed that the
teenager’s genitalia appeared “abnormal but the nature of the abnormalities are non-specific and
may or may not be supportive of the reported allegation.” By agreement between the prosecutor
and Campbell’s attorney, a page was redacted from the report to exclude information related by a
police officer.
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At the conclusion of the prosecutor’s evidence, the trial judge denied Campbell’s motion to
strike the evidence. Campbell rested without presenting evidence and renewed the motion to strike
the evidence. Following arguments, the trial judge made specific findings and convicted Campbell
of rape.
II.
Campbell contends the trial judge erred in admitting the nurse’s report as a business record
exception to the hearsay rule. He argues the report was hearsay and its admission violated his right
of confrontation. The Commonwealth responds the trial judge properly ruled that the report was a
business record and that, under Crawford v. Washington, 541 U.S. 36, 58 (2004), business records
are not “testimonial.” The Commonwealth further argues, however, that, if the trial judge erred, the
error was harmless. We agree that the error, if any, was harmless.
The primary evidence in this prosecution was Campbell’s extra judicial admissions to the
police of his activity with the teenager. “[A]s a general principle of law, an accused cannot be
convicted solely on his uncorroborated extra judicial admission or confession.” Watkins v.
Commonwealth, 238 Va. 341, 348, 385 S.E.2d 50, 54 (1989). To obtain a conviction, the evidence
must corroborate the corpus delicti. Id. Undoubtedly, the prosecutor offered the nurse’s report for
the purpose of corroborating Campbell’s admissions.
As the Supreme Court of Virginia has noted “the . . . harmless error standard has been
applied expressly by the Supreme Court of the United States in appeals in which the constitutional
Confrontation Clause has been violated.” Dearing v. Commonwealth, 260 Va. 671, 674, 536 S.E.2d
903, 904 (2000). See Coy v. Iowa, 487 U.S. 1012, 1021 (1988); Luginbuyhl v. Commonwealth, 48
Va. App. 58, 64, 628 S.E.2d 74, 77-78 (2006) (en banc).
The standard that guides our analysis of the harmless error issue
in this case is clear. Thus, “before a federal constitutional error
can be held harmless, the court must be able to declare a belief that
it was harmless beyond a reasonable doubt;” otherwise the
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conviction under review must be set aside. Chapman v. California,
386 U.S. 18, 24 (1967). This standard requires a determination of
“whether there is a reasonable possibility that the evidence
complained of might have contributed to the conviction.” Id. at 23.
In making that determination, the reviewing court is to consider a
host of factors, including the importance of the tainted evidence in
the prosecution’s case, whether that evidence was cumulative, the
presence or absence of evidence corroborating or contradicting the
tainted evidence on material points, and the overall strength of the
prosecution’s case. Delaware v. Van Arsdall, 475 U.S. 673, 684
(1986); see also Harrington v. California, 395 U.S. 250, 254
(1969); Schneble v. Florida, 405 U.S. 427, 432 (1972) (erroneously
admitted evidence harmless where it was merely cumulative of
other overwhelming evidence of guilt).
Lilly v. Commonwealth, 258 Va. 548, 551, 523 S.E.2d 208, 209 (1999).
On brief, Campbell acknowledges that the nurse’s report and the certificate of analysis of
the DNA were offered to corroborate his admission that he and the teenager engaged in sexual
intercourse. The DNA analysis corroborated his admission in that it excluded, with an extremely
high degree of probability, someone other than Campbell as the person who had sexual intercourse
with the teenager. In particular, the analysis disclosed the presence of DNA from sperm consistent
with Campbell being the contributor and established the probability of random selection yielding
this result as one in greater than six billion.
In light of the corroborative value of the DNA analysis, the value of the nurse’s report was
marginal. The nurse’s report was redacted to eliminate references to Campbell and the teenager’s
allegations about the events. Though the report noted some abnormality in the teenager’s genitalia,
it concluded “the abnormalities are non-specific and may or may not be supportive of the reported
allegation.”
The nurse’s report was, therefore, merely cumulative of the DNA report as evidence
corroborating the admitted sexual contact. The DNA evidence was uncontroverted and provided
overwhelming proof of sexual contact between Campbell and the teenager. We hold, therefore, that
the admission of the nurse’s report, even if error, was harmless beyond a reasonable doubt under
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these circumstances. See Pitt v. Commonwealth, 260 Va. 692, 696, 539 S.E.2d 77, 79 (2000)
(holding evidence harmless where it was merely cumulative of other substantial evidence); Dearing,
260 Va. at 674, 536 S.E.2d at 904 (holding evidence harmless because it was cumulative of other
evidence).
III.
Campbell also contends the evidence was insufficient to convict him of rape because it
failed to prove the sexual intercourse was accomplished through force, threat, or intimidation. He
argues his confession merely established consensual sexual intercourse and, further, argues the
corroborating evidence proved nothing more than sexual intercourse. The Commonwealth contends
Campbell’s confession established that the sexual intercourse was accomplished by intimidation,
force, or threat and that other evidence sufficiently corroborated the confession.
The indictment charged a crime under Code § 18.2-61. This statute provides, in pertinent
part, that “[i]f any person has sexual intercourse with a complaining witness . . . and such act is
accomplished . . . against the complaining witness’s will, by force, threat or intimidation of or
against the complaining witness . . . he . . . shall be guilty of rape.” Defining these elements, the
Supreme Court has explained that, “in the context of [a prosecution for] sexual crimes, an act
undertaken against a victim’s will and without the victim’s consent is an act undertaken with force.”
Martin v. Commonwealth, 272 Va. 31, 35, 630 S.E.2d 291, 292 (2006). In other words, one inquiry
to be made “is whether the act or acts were effected with or without the victim’s consent.” Jones v.
Commonwealth, 219 Va. 983, 986, 252 S.E.2d 370, 372 (1979). The other elements are as follows:
As used in the statute, threat means expression of an intention to
do bodily harm. Intimidation may occur without threats.
Intimidation, as used in the statute, means putting a victim in fear
of bodily harm by exercising such dominion and control of her as
to overcome her mind and overbear her will. Intimidation may be
caused by the imposition of psychological pressure on one who,
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under the circumstances, is vulnerable and susceptible to such
pressure.
Sutton v. Commonwealth, 228 Va. 654, 663, 324 S.E.2d 665, 670 (1985).
It is well established that in a rape prosecution, as in every other criminal prosecution,
“the Commonwealth must prove the element of corpus delicti, that is, the fact that the crime
charged has been actually perpetrated.” Cherrix v. Commonwealth, 257 Va. 292, 305, 513
S.E.2d 642, 651 (1999). The primary evidence in this prosecution was Campbell’s extra judicial
admissions to the police. In his recorded statements, Campbell gave a detailed description of his
conduct with his teenage stepdaughter. Campbell asserts, however, he only acknowledged
having sexual intercourse with the teenager. He argues “he did not state that he intimidated
[her], that he forced [her] to have sex or that she did not consent to having sex with him.” We
believe the trial judge properly found that the statements, viewed in totality, established the
statutory elements of rape.
The Supreme Court addressed the issue of intimidation in Commonwealth v. Bower, 264
Va. 41, 563 S.E.2d 737 (2002), where a parent sexually assaulted his thirteen-year-old daughter
while she pretended to be asleep. The Court held the age of the child, the existence of a familial
relationship, and the child’s vulnerable position are relevant in determining whether the act
occurred through intimidation. Id. at 45-46, 563 S.E.2d at 738-39. See also Clark v.
Commonwealth, 30 Va. App. 406, 410-11, 517 S.E.2d 260, 262 (1999) (holding that the paternal
relationship, the child’s age, and the child’s isolation, were factors to be considered in
determining the existence of intimidation). In this case, the evidence proved Campbell contacted
the teenager at her friend’s house at 4:30 a.m. and told her to return home. He was angry with
her and her mother, and he confronted the teenager when she arrived home. Focusing his anger
on her, he directed her to remove her clothing. The trial judge found it “notable that this is a
14-year-old and a stepchild” and that Campbell was in “a position of trust” as her caretaker. The
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trial judge also found that Campbell acknowledged in his statement that “steam [was] boiling
over” as he angrily confronted the teenager. Before or during the intercourse, Campbell told the
teenager, “it was [her] fault.” This evidence supports the trial judge’s conclusion that Campbell
used intimidation to facilitate sexual intercourse with his teenage stepdaughter.
The evidence also proved Campbell was angry and displayed a knife when he ordered the
teenager to disrobe. Although Campbell argues he had the knife because he had earlier intended
to cut his own wrist, the trial judge found that Campbell did not disclose that fact to the teenager.
Thus, the trial judge could reasonably conclude that this aspect of Campbell’s confession had
“all of the indicia of [use of] force.”
Additionally, the trial judge specifically noted Campbell said he “threatened [the
teenager] and told her not to tell” of the incident. These statements further support the trial
judge’s findings of intimidation and use of force. We hold, therefore, the evidence supports the
trial judge’s finding that, fairly understood, Campbell’s recorded statement was a full confession
of rape.
We turn, then, to the question whether the confession was sufficiently corroborated to
withstand Campbell’s challenge to its sufficiency. The Supreme Court succinctly stated the
standard to be met when the Commonwealth’s proof includes the defendant’s confession of the
crime.
“Although the Commonwealth may not establish an essential
element of a crime by the uncorroborated confession of the
accused alone, “‘only slight corroborative evidence’” is necessary
to show the veracity of the confession. Williams v.
Commonwealth, 234 Va. 168, 175, 360 S.E.2d 361, 366 (1987)
(quoting Clozza v. Commonwealth, 228 Va. 124, 133, 321 S.E.2d
273, 279 (1984), cert. denied, 469 U.S. 1230 (1985)), cert. denied,
484 U.S. 1020 (1988). What is more, if ‘[t]his corroborating
evidence is consistent with a reasonable inference’ that the accused
committed the crime to which he has confessed, the
Commonwealth need not establish through direct evidence those
elements of the crime that are proven by the confession. See
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Jackson v. Commonwealth, 255 Va. 625, 646, 499 S.E.2d 538, 551
(1998), cert. denied, 525 U.S. 1067 (1999).”
Winston v. Commonwealth, 268 Va. 564, 613, 604 S.E.2d 21, 48-49 (2004) (quoting Powell v.
Commonwealth, 267 Va. 107, 145, 590 S.E.2d 537, 560 (2004)).
Independent of the confession, the evidence established that the teenager’s grandmother
took her to the hospital shortly after these events occurred. The teenager submitted to an
examination at the hospital and to the collection of evidence for the PERK kit. The detective
investigating the crime later seized from Campbell’s bedroom in the residence the gel Campbell
described as the lubricant he used. DNA testing revealed Campbell and the teenager had
engaged in sexual intercourse. The evidence further proved Campbell, who acted as the
teenager’s caretaker while her mother was in Jamaica, fled to South Carolina after these events
occurred.
The trial judge found that this evidence was corroborative of the confession because it
proved the teenager “went to a hospital [and] submitted to a very invasive procedure.” He also
found that Campbell’s flight from the state corroborated his confession of rape. We hold this
evidence provided the basis for a reasonable inference that Campbell committed the crimes to
which he confessed. See Winston, 268 Va. at 613, 604 S.E.2d at 49; see also Williams v.
Commonwealth, 234 Va. 168, 175-76, 360 S.E.2d 361, 366 (1987) (holding the absence of a
wallet in the pants of the deceased was sufficient to corroborate the accused’s confession that he
robbed the deceased); Swann v. Commonwealth, 247 Va. 222, 236, 441 S.E.2d 195, 205 (1994)
(holding a robbery confession was corroborated by proof a decedent’s “pants pockets were
turned inside out and no money was found in his wallet”); Wright v. Commonwealth, 245 Va.
177, 194, 427 S.E.2d 379, 390 (1993) (holding the accused’s confession of attempted rape was
corroborated by proof the decedent’s underpants had been removed and were found at the crime
scene”), vacated on other grounds by Wright v. Virginia, 512 U.S. 1217 (1994).
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For these reasons, we affirm the conviction.
Affirmed.
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