COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Benton and Elder
Argued at Richmond, Virginia
JONATHAN ROMEO CRUMP
OPINION BY
v. Record No. 0570-94-2 JUDGE JAMES W. BENTON, JR.
AUGUST 8, 1995
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LUNENBURG COUNTY
William L. Wellons, Judge
Buddy A. Ward, Public Defender (Robert H.
Morrison, Assistant Public Defender, on brief),
for appellant.
Marla Lynn Graff, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Jonathan Romeo Crump was convicted for the rape of a child
under the age of thirteen in violation of Code § 18.2-61. He
contends on this appeal that (1) the child's refusal to respond
to questions from his counsel was a denial of his Sixth Amendment
right to cross-examine the child, and (2) the evidence was
insufficient to prove his guilt beyond a reasonable doubt. For
the reasons that follow, we affirm his conviction.
I.
The evidence proved that Crump lived with the child's mother
in the same residence with the child and two of the child's
siblings, one of whom was Crump's child. The child, who was
eight years old at the time of the trial, testified that when she
returned home from school on May 13, 1993, only Crump was at
home. The child testified that Crump entered her bedroom, pulled
down her underwear, and made her bend over a chair. He then
pushed his "private part" into her "private part." She testified
that it hurt her and that she felt "[w]et stuff" on her after
Crump stopped. Crump went into the bathroom and later left the
home. The child testified that she did her homework and waited
for her mother. When her mother came home, the child told her
what had happened. The child also testified that the next day
Crump took her into the bathroom and told her to "[t]ell . . .
that my uncle did it . . . . [b]ehind the house."
On cross-examination, the child again testified that Crump
entered her bedroom, "pulled [her] pants down," and "told [her]
to bend over." When Crump's trial counsel asked what happened
after this, the child did not answer his question. In response
to further questioning, the child answered that she felt "[w]et
stuff running down my leg" and said that Crump then "stopped and
went to the bathroom."
When the child would not elaborate upon "exactly what
happened after [she] bent over," Crump's trial counsel objected
to the child's unresponsiveness and moved that her direct
testimony be stricken. The trial judge denied the motion. On
recross-examination, the child testified in response to defense
counsel's further questioning that Crump "put his private part on
[her] private part," and she "felt wet stuff coming down [her]
legs."
The mother testified that when she returned home on May 13
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the child told her that Crump "child molested" her. The mother
bathed the child and noticed that her genitalia was "red." She
also observed that the child had "white stuff" in her genital
area and on her clothes. The mother testified that she angrily
confronted Crump and began hitting him. Crump said nothing,
slammed the door as he left, and went to his mother's house.
When Crump returned the next day, the mother testified that she
again confronted him. The mother also testified that she saw
Crump and the child in the bathroom and heard him tell the child
to say that the child's uncle did it.
The evidence also proved that when the child first spoke to
police about the incident, she reported that her uncle had raped
her. The child's uncle was arrested and charged with rape.
After investigation, the uncle was released and Crump was
arrested. The mother testified that she did not inform the
police of Crump's actions until two months after the child's
complaint because she was afraid of Crump and believed he would
kill her if she informed the police.
II.
The Confrontation Clause in the Sixth Amendment to the
Constitution of the United States guarantees an accused the right
to cross-examine witnesses in criminal proceedings. Pointer v.
Texas, 380 U.S. 400, 403-04 (1965). Article I, Section 8 of the
Constitution of Virginia also guarantees this right. Moore v.
Commonwealth, 202 Va. 667, 669, 119 S.E.2d 324, 327 (1961).
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Relying upon the decisions of the Supreme Court, this Court has
stated that, "'[g]enerally speaking, the Confrontation Clause
guarantees an opportunity for effective cross-examination, not
cross-examination that is effective in whatever way, and to
whatever extent, the defense might wish.'" Nichols v.
Commonwealth, 6 Va. App. 426, 429, 369 S.E.2d 218, 220 (1988)
(quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985)).
The Confrontation Clause includes no
guarantee that every witness called by the
prosecution will refrain from giving
testimony that is marred by forgetfulness,
confusion, or evasion. To the contrary, the
Confrontation Clause is generally satisfied
when the defense is given a full and fair
opportunity to probe and expose these
infirmities through cross-examination,
thereby calling to the attention of the
factfinder the reasons for giving scant
weight to the witness' testimony.
Fensterer, 474 U.S. at 21-22.
On appeal, Crump's counsel concedes that Crump's trial
counsel was given the opportunity to cross-examine the child.
Crump contends that his right to confront the child in cross-
examination was denied, however, "because his efforts to address
material issues introduced in direct examination were thwarted by
the [child's] refusal to answer questions put to her during
cross-examination."
The transcript of the child's testimony reveals that
throughout direct and cross examinations the child frequently
moved her head in response to questioning. Neither the
prosecutor nor defense counsel sought a verbal response on the
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many occasions when, as the transcript indicates, the child "nods
head in affirmative" or "shakes head in negative." For example,
the child testified on cross-examination as follows:
Q Okay. Well, now, tell me the truth about
what happened. Who was it that touched your
privates?
A Jonathan [Crump].
Q Okay. Who told you to say that?
A Nobody.
Q Nobody told you to say it was Jonathan
[Crump]? Nobody told you to say it was
Jonathan [Crump]?
A No.
* * * * * * *
Q Now, when did you tell somebody that
Jonathan [Crump] did it? Okay, the day this
happened, okay, let's go back to that for a
minute. Who did you tell? Did you tell
anybody the day it happened?
A (Witness nods head in affirmative.)
Q Who did you tell?
A My mama.
Q Okay, and what did she do?
A Wait until the next day.
Q She waited until the next day and then
what did she do? Did she call the police?
A (Witness shakes head in negative.)
Q How long was it before [your mother]
called the police?
A She didn't call them.
Q She didn't call the police, okay. Did you
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tell her that Uncle Willie did this?
A (Witness shakes head in negative.)
Q You told her Jonathan [Crump] did it?
A (Witness nods head in affirmative.)
Q Why did you do that?
A Because he did it.
Although trial counsel may not have elicited the answers
that he was seeking, the transcript reflects that the child was
thoroughly cross-examined and substantially responded to trial
counsel's questions. Crump's claim of deprivation relies in
large measure upon the child's initial failure to respond to his
trial counsel's attempt to have her repeat the testimony she gave
on direct examination concerning the actual penetration. In
particular, she balked when questioned as follows:
Q Come on, you can do it. What happened
after he asked you to bend over, told you to
bend over? Do you remember what happened?
A (Witness nods head in affirmative.)
Q Well, then, spit it out and tell us. Come
on, . . . we're almost done. Just tell us
what happened. I need to hear it from you,
you can tell me what happened?
. . . you were doing good there for a
while. Like I said, we're almost done here.
Just tell me what happened at that point
after he told you to bend over.
Okay, I'll come back to it in a minute.
Let me go to the day when Jonathan [Crump]
hit you, okay. Do you remember that one
clearly?
A (Witness nods head in affirmative.)
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Q You're sure?
A (Witness nods head in affirmative.)
* * * * * * *
Q Okay. Now, back to your favorite subject
again, back to the day after school when he
came in your bedroom and he told you to bend
over. Tell me what happened after that?
Are you going to answer me? If I stay
here until darkness falls and you all get
hungry, are you going to answer me?
THE JUDGE: . . . , you understand what Mr.
Morrison is asking you, so tell us what
happened after he told you to bend over. Do
you understand?
A (Nods head in the affirmative.)
THE JUDGE: Do you know what happened after
he told you to do that? Do you know what
happened. You do, don't you?
A (Nods head in the affirmative.)
* * * * * * *
THE JUDGE: You couldn't see him. What did
you feel?
A Wet stuff running down my leg.
THE JUDGE: Proceed . . . .
Q Can you tell me? You must like the Judge
a lot better than me. Can you tell me what
happened? Now, you say after you bent over,
then a little while later you felt wet stuff.
A (Witness nods head in affirmative.)
Q Now, start from when he had you bend over
and tell me what happened through the wet
stuff and afterwards.
A He stopped and went to the bathroom.
Q I didn't catch that, say it again.
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A He stopped and went in the bathroom.
Q That was afterwards?
A (Witness nods head in affirmative.)
Q What happened before then?
When the child failed to respond to the last question, trial
counsel moved to strike her testimony.
We conclude that the trial judge did not err in refusing to
strike the testimony. When the child failed to respond, she had
been extensively and repetitively questioned by two lawyers and
the judge. She was only eight years of age. "[W]here a witness
refuses to answer only one or a few questions on cross-
examination, the right to confrontation is not necessarily
violated." Nichols, 6 Va. App. at 430, 369 S.E.2d at 220.
Moreover, although the transcript obviously does not reflect the
tone in which questions were asked, the transcript does suggest
that the child was being questioned in a manner that did not
reflect a sensitivity for her age. Her responsiveness could not
have been enhanced by being told to "spit it out," to go "back to
your favorite subject again," or "you must like the judge a lot
better than me."
Furthermore, the child made the following responses on re-
cross-examination by Crump's trial counsel:
Q When Jonathan [Crump] told you to bend
over, you remember that part, right, you told
us about that earlier, what happened right
after that?
A He put his private part on my private
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part.
Q He put his private part on your private
part?
A (Witness nods head in affirmative.)
Q Okay. Now, did you look at him when he
did this or were you looking away from him?
A I won't looking at him.
Q Okay. Now, how do you know it was his
private part? Can you tell me that?
A No.
Q What happened when he put his private part
in your private part, what happened next?
A I felt wet stuff coming down my legs.
The record clearly establishes that Crump was afforded a
full opportunity to conduct an effective cross-examination and
that the child substantially responded to the questioning. Upon
this record, we do not know what information he was trying to
elicit from the child that he did not elicit. Thus, the trial
judge did not err in refusing to strike the child's testimony.
III.
"[T]he Due Process Clause protects the accused against
conviction except upon proof beyond a reasonable doubt of every
fact necessary to constitute the crime with which [the accused]
is charged." In re Winship, 397 U.S. 358, 364 (1970). Thus,
when the question of the sufficiency of the evidence is raised on
appellate review, we must determine whether a reasonable fact
finder could have found from the evidence before it that guilt
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had been proved beyond a reasonable doubt. Furthermore, when
reviewing the sufficiency of the evidence, we view the evidence
in the light most favorable to the Commonwealth, granting all
reasonable inferences fairly deducible from the evidence.
Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,
537 (1975).
Crump argues that the evidence in its totality was
inherently incredible. He contends that the child's testimony
that he urged her to blame her uncle was contradictory and,
therefore, unreliable. In support of this contention, he notes
that the evidence established that when the rape was reported,
the child initially named her uncle as the perpetrator. Crump
also contends that significant portions of the evidence were
contrary to human experience. In particular, he points to the
child's testimony that Crump never spoke to her during the act,
that she began doing her homework following the incident, and
that she did not try to run away and call anyone. Crump also
notes that the evidence shows that the child and her mother
continued to live in the house with him for over two months
before the crime was reported.
In addition, Crump contends that the mother's testimony
fails to corroborate the child's testimony and only serves to
render it more incredible. He argues that the mother's testimony
that the child used the phrase, "child molested," was
unbelievable. Crump also argues the mother's reasons for waiting
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two months to report the rape and her inaction when the child's
uncle was charged for the crime rendered her testimony
incredible.
The child's testimony established beyond a reasonable doubt
the facts necessary to uphold the conviction. The child
testified with apparent difficulty but without contradiction that
Crump raped her. The child testified that she was penetrated and
that she experienced pain. She also described manifestations of
sexual intercourse. "[T]he child's testimony alone, if believed
by the [trier of fact], was sufficient to support [Crump's]
conviction, even in the absence of corroborating physical or
testimonial evidence." Love v. Commonwealth, 18 Va. App. 84, 90,
441 S.E.2d 709, 713 (1994).
The mother's testimony, however, corroborates parts of the
child's account. The mother's testimony concerning the child's
use of the term "child molested," the mother's failure to earlier
report the incident, and the mother's response to the uncle's
arrest were all matters that affected her credibility.
It is [the fact finder's] function to judge
the credibility of the witnesses and the
weight of their evidence. The [fact finder]
has the opportunity to observe the witnesses'
demeanor while testifying, to consider their
interest in the outcome of the case, and to
determine from all the circumstances of the
case which witnesses are more believable.
Gray v. Commonwealth, 233 Va. 313, 344, 356 S.E.2d 157, 174,
cert. denied, 484 U.S. 873 (1987).
The inconsistencies in the child's testimony and the
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mother's testimony are not such as to render the evidence
incredible as a matter of law. The child consistently testified
to the facts which establish the crime, and the trial judge
believed her testimony. See Pugliese v. Commonwealth, 16 Va.
App. 82, 92, 428 S.E.2d 16, 24 (1993). Furthermore, we cannot
say that the child's account of Crump's behavior or her response
to that behavior presented an account of events contrary to human
experience.
For these reasons we affirm the conviction.
Affirmed.
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