Simerly v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Willis and Lemons
Argued at Richmond, Virginia

BOBBY JOE SIMERLY
OPINION BY
v. Record No. 3010-97-2 JUDGE DONALD W. LEMONS
MAY 18, 1999
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ORANGE COUNTY
Lloyd C. Sullenberger, Judge

Diana H. Wheeler for appellant.

Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.

Bobby Joe Simerly was convicted of rape, abduction with the

intent to defile, and malicious wounding. On appeal, he argues

that the trial court erred in refusing to defer sentencing for a

mental examination pursuant to Code §§ 19.2-300 and 19.2-176.

We affirm the trial court’s refusal to order a mental

examination pursuant to Code § 19.2-176; however, we reverse and

remand for resentencing after the trial court’s compliance with

Code § 19.2-300.

I. BACKGROUND

The victim testified that on April 1, 1997, Simerly

attacked her while she was walking on a road near her house.

Simerly dragged her 150 to 200 yards into the woods beside the

road and then threw her to the ground. When she attempted to
get up, Simerly kicked her in the face, pulled off her pants and

underwear and raped her.

On September 23, 1997, Simerly was convicted in a bench

trial of rape, abduction with the intent to defile, and

malicious wounding. Counsel for Simerly requested preparation

of a Presentence Investigation Report. A sentencing hearing was

scheduled for November 14, 1997. At the hearing, evidence was

introduced that Simerly refused to cooperate with the probation

officer in the preparation of the presentence report. The

investigation conducted by the probation officer revealed that

Simerly had been charged with a crime in 1987, and had sought to

plead guilty. With respect to that charge, the court had

ordered Simerly to undergo a competency evaluation. Simerly had

been found incompetent to stand trial and was committed to a

mental facility for restoration. After his restoration to

competency, Simerly was tried, convicted and served a five-year

sentence. Simerly had not provided any of this information to

either of the attorneys representing him.

At the sentencing hearing, Simerly’s counsel requested that

the court defer sentencing until a mental evaluation of him

could be completed, pursuant to Code § 19.2-300. Simerly’s

counsel also requested that the court evaluate Simerly's mental

state prior to sentencing pursuant to Code § 19.2-176. The

trial court denied both motions. The court sentenced Simerly to

life imprisonment for rape, life imprisonment for abduction with

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intent to defile, and twenty years imprisonment for malicious

wounding.

II. CODE § 19.2-300

Code § 19.2-300 provides as follows:

In the case of the conviction in any circuit
court of any person for any criminal offense
which indicates sexual abnormality, the
trial judge may on his own initiative, or
shall upon application of the attorney for
the Commonwealth, the defendant, or counsel
for defendant or other person acting for the
defendant, defer sentence until the report
of a mental examination conducted as
provided in § 19.2-301 of the defendant can
be secured to guide the judge in determining
what disposition shall be made of the
defendant.

A criminal defendant is entitled as a matter of law to have

a presentence report prepared prior to the imposition of his or

her sentence. See Duncan v. Commonwealth, 2 Va. App. 342,

345-46, 343 S.E.2d 392, 394 (1986). At his sentencing hearing,

Simerly’s counsel expressed her belief that Simerly’s failure to

cooperate with the probation officer deprived the court of a

“meaningful presentence report.” Simerly’s counsel argued that

the presentence report failed to inform the court of mitigating

factors in his case, and she requested pursuant to Code

§ 19.2-300 that the court order a mental evaluation before

imposing sentence.

Code § 19.2-300 states that in a case involving “sexual

abnormality,” a trial judge “may on his own initiative” or

“shall upon application of the . . . attorney for the defendant”

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order a mental examination. (Emphasis added). Whether the

crimes with which Simerly was charged constituted offenses

involving “sexual abnormality,” bringing them under the purview

of the statute, is the issue before us on appeal. 1

The term "sexual abnormality” is not defined within Code

§ 19.2-300. Certainly, in common parlance it is difficult to

imagine anything more sexually "abnormal" than forcible rape.

However, the Commonwealth argues that the sexual act itself must

be performed in some "abnormal" way before the statute may be

invoked. “[L]anguage is ambiguous if it can be understood in

more than one way . . . [and] divergent interpretations tend to

show that a statute’s meaning is difficult to ascertain.”

Virginia-Am. Water Co. v. Prince Wm. Serv., 246 Va. 509, 514,

436 S.E.2d 618, 621 (1993) (citations omitted). When a statute

is ambiguous, a court is permitted to consider extrinsic

evidence to determine its meaning, including an analysis of its

legislative history. See id. at 514-20, 436 S.E.2d at 620-24.

Code § 19.2-300 was first enacted in 1950. A Commission to

Study Sex Offenses prepared a report entitled, “The Sex Offender

and the Criminal Law,” (S. 18 (Va. 1951)) which was presented to

the Governor and the General Assembly of Virginia in 1951. In

its report, the commission stated that its purpose was to “study

and report upon the statutes of Virginia dealing with sex

1
There was no objection to the timeliness of the motion;
consequently, that issue is not before us.

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offenders” and “to consider the nature of the problem, the

measures in use in other States, and methods which might be

employed in this State.” S. 18 at 3. The commission stated,

[t]here are three major elements which
usually characterize the acts of the
dangerous sex offender toward which
preventative efforts should be primarily
directed. These are (1) the use of force in
the performance of any sexual act against
the will of one of the participants (2) a
prohibited sexual act where there is a great
disparity in age between the participants,
whether or not the element of force enters,
and (3) the repetitive compulsive nature of
the act carried out with heedless disregard
of consequences to the offender.

S. 18 at 2.

The report uses the term “dangerous sexual offender”

interchangeably with the phrase “one who engages in abnormal

sexual behavior.” See S. 18. We conclude that the legislature

intended the term “sexual abnormality” to include all sex

offenses committed against the will of a victim in which the use

of force is involved. 2

Code § 19.2-300 first appeared in the supplement to the

Code of 1950 and was originally codified at § 53-278.2. The

language of the section read:

2
The commission’s report to the legislature stated “the
hope . . . of reducing the number of serious sex crimes lies in
a proper psychiatric screening of the potential criminal at the
stage where abnormal behavior first comes to light. The
authorities believe that latent sexual deviations can in most
cases be alleviated with treatment and prevented from developing
into more dangerous anti-social activity.” S. 18 at 6.

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 In the case of the conviction in any court
of record of any person for any criminal
offense which indicates sexual abnormality,
the trial judge may on his own initiative,
or on application of the Commonwealth’s
attorney, the defendant, or counsel for
defendant or other person acting for the
defendant, defer sentence until the report
of mental examination of the defendant can
be secured to guide the judge in determining
what disposition shall be made of the
defendant.

The language of Code § 53-278.2 remained unchanged until

1970. However, in 1970, Code § 53-278.2 was amended to read,

[i]n the case of the conviction in any court
of record of any person for any criminal
offense which indicates sexual abnormality,
the trial judge may on his own initiative,
or shall upon application of the
Commonwealth’s attorney, the defendant, or
counsel for defendant or any other person
acting for the defendant, defer sentence
until the report of a mental examination of
the defendant can be secured to guide the
judge in determining what disposition may be
made of the defendant.

Acts of the General Assembly, 1970, c. 62 (emphasis added).

The 1970 change in the language of Code § 53-278.2

reflected legislative intent to eliminate the exercise of

discretion by the trial judge in ordering a mental examination

prior to sentencing when requested by the defense or the

Commonwealth. In 1975, Code § 53-278.2 was repealed and

recodified at Code § 19.2-300. Acts of the General Assembly

1975, c. 495. As recently as 1990, the legislature made modest

changes to Code § 19.2-300, but made no change in the language

eliminating the judge’s discretion. Acts of the General

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Assembly 1990, c. 697. From its inception, the provision has

contained no definition of the term “sexual abnormality.”

The concurring opinion attempts to draw a distinction

between “force” and “violence” in the definition of “sexual

abnormality.” Unfortunately, such an analysis may shift the

focus of the inquiry from the defendant’s conduct to the

victim’s conduct as demonstrated in the case of Jones v.

Commonwealth, 219 Va. 983, 252 S.E.2d 370 (1979), ironically

cited in the concurring opinion. In Jones, the Virginia Supreme

Court upheld a rape conviction and observed that “the woman is

not required to resist to the utmost of her physical strength,

if she reasonably believes resistance would be useless and

result in serious bodily injury to her.” Id. at 986, 252 S.E.2d

at 372 (citations omitted). If the question to be answered is

whether the defendant’s conduct indicates “sexual abnormality,”

the answer should never rest upon the victim’s conduct. The

victim’s decision to avoid violence does not make the

defendant’s conduct any less “abnormal.”

Additionally, the attempt to draw the distinction between

“force” and “violence” is not found in the most recent

enactments of the General Assembly. The 1999 Session of the

General Assembly enacted provisions for the civil commitment of

sexually violent predators. S. 845, 1999 Session (Va. 1999).

Senate Bill 845 was enacted into law on April 7, 1999. In the

definitions section, the legislature defines “sexually violent

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offense” to include a “violation of § 18.2-61 [rape],

§ 18.2-67.1 [forcible sodomy] or § 18.2-67.2 [object sexual

penetration] or subdivision A1 of § 18.2-67.3 [aggravated sexual

battery].” Code § 18.2-61 defines rape as an act of sexual

intercourse with a complaining witness which is accomplished “by

force, threat or intimidation” or “through the use of the

complaining witness’s mental incapacity or physical

helplessness” or “with a child under age thirteen as the

victim.” The offenses of forcible sodomy, object sexual

penetration and aggravated sexual battery have similar

provisions. The legislature has defined these forcible acts as

“violent.” Clearly, when dealing with sexually abnormal

behavior, the legislature does not make the distinction between

“force” and “violence” advanced by the concurring opinion.

We hold that Simerly was convicted of an offense that

“indicates sexual abnormality,” as that terminology is used in

Code § 19.2-300. The record is replete with evidence that

Simerly used force to commit the rape. The victim testified

that Simerly attacked her, dragged her into the woods, threw her

to the ground and kicked her in the face in order to restrain

her. The legislature mandated that a person convicted of an

offense that “indicates sexual abnormality” be given a mental

evaluation upon request of the defense or the Commonwealth to

determine whether proper psychiatric treatment could prevent

further crimes by the same offender. Because Simerly’s counsel

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requested that the court defer sentencing until he could be

given a mental examination pursuant to Code § 19.2-300, we

reverse and remand the case for resentencing after the receipt

of the report of mental examination. Such a report may or may

not have any impact upon the trial judge in a sentencing for

such a brutal crime; however, upon timely motion, the statute

provides the defendant this right.

III. CODE § 19.2-176

Code § 19.2-176(A) provides as follows:

If, after conviction and before sentence of
any person, the judge presiding at the trial
finds reasonable ground to question such
person's mental state, he may order an
evaluation of such person's mental state by
at least one psychiatrist or clinical
psychologist who is qualified by training
and experience to perform such evaluations.
If the judge, based on the evaluation, and
after hearing representations of the
defendant's counsel, finds clear and
convincing evidence that the defendant (i)
is mentally ill, and (ii) requires treatment
in a mental hospital rather than the jail,
he may order the defendant hospitalized in a
facility designated by the Commissioner as
appropriate for treatment of persons
convicted of crime. The time such person is
confined to such hospital shall be deducted
from any term for which he may be sentenced
to any penal institution, reformatory or
elsewhere.

At Simerly’s sentencing hearing, his counsel moved to defer

sentencing until a mental evaluation could be performed, as

authorized by Code § 19.2-176. The trial court refused to order

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an examination, stating that nothing had arisen “that creates

reasonable ground to question the defendant’s mental state.”

The use of the term “may” in the language of Code

§ 19.2-176 renders a mental examination under this section

discretionary. Where the language of a statute authorizing the

appointment of an expert to render mental examination prior to

trial is clearly discretionary, the denial of a motion to

appoint an expert will not be reversed absent an abuse of

discretion. See Elkins v. Commonwealth, 208 Va. 336, 337, 157

S.E.2d 243, 244 (1967). We find nothing in the record to

support Simerly’s argument that the trial court abused its

discretion in failing to order a mental examination under Code

§ 19.2-176.

IV. CONCLUSION

We affirm the trial court’s refusal to order a mental

examination pursuant to Code § 19.2-176. We hold, however, that

the trial court erred in refusing to order a mental examination

pursuant to Code § 19.2-300, and reverse for the limited purpose

of allowing the court to resentence Simerly after a mental

examination pursuant to this section has been completed.

Affirmed in part,
and reversed in part
and remanded for
resentencing.

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Benton, J., concurring.

I agree with the majority's holding that the trial judge

erred in refusing to order a mental examination of Bobby J.

Simerly pursuant to Code § 19.2-300. I separately concur,

however, because I believe the majority opinion lowers the bar

too drastically when it holds that a sexual assault involving

the use of force, which need only be slight in certain

circumstances, see Jones v. Commonwealth, 219 Va. 983, 986, 252

S.E.2d 370, 372 (1979), proves “sexual abnormality” sufficient

to trigger the application of Code § 19.2-300. In my view, this

offense falls within the ambit of “sexual abnormality” because

of the nature and degree of violence that Simerly employed.

To the extent that the Report of the Commission To Study

Sex Offenders (S. 18 1951) is helpful in determining this issue,

I believe it primarily focused upon those offenders who “are

aggressive and carry out their heinous crimes with a complete

disregard of the consequences both to the victim and the

aggressor.” S. 18 at 1. The report concerned only “a low

percentage [of sex offenders] -- three to five percent -- [who]

are dangerous,” id. at 4, and it seeks to differentiate between

persons who may be described generally as "sexual deviates" and

persons who are “dangerous sex offender[s].” Id. at 1-2, 4.

The report further noted that “[t]hose who are sent to the

mental hospitals under the recommendations of this report will

have engaged in acts of violence.” Id. at 8 (emphasis added).

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The report focused its recommendations upon offenders “convicted

of a crime for which the punishment may be death or life

imprisonment.” Id. at 5, 7.

The evidence proved that Simerly grabbed the victim's hair,

forcibly dragged her into the woods, kicked her in the face, and

raped her while she was physically restrained. By urging a

greater limitation than that accepted by the majority, I do not

intend to suggest that a forcible sexual assault committed

without aggravated violence is less culpable than one committed

with aggravated violence. The issue before us is not whether

the offense is somehow mitigated on the basis of the force

employed. The issue is merely whether the offender should be

subjected to a mental examination before sentencing. I would

hold that the violence which accompanied this rape made the

“offense [one] which indicates sexual abnormality.” Code

§ 19.2-300.

For these reasons, I agree with the majority opinion that

we should reverse and remand for a mental examination and

resentencing pursuant to Code § 19.2-300.

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