Hughes v. Commonwealth

Barrow, J., with whom Koontz, J.,

joins, dissenting.

The evidence does not, in my opinion, support an inference that the defendant abducted the child with the specific intent to sexually molest her. The facts that the defendant abducted the child and that she has not been found do not mean that the defendant did so intending to molest her. The evidence provokes speculation but does not provide a reasonable basis for inferring what the defendant specifically intended to do, or in fact did, with the child.

The Commonwealth had the burden of proving not only that the defendant abducted the child, but that he did so with the intent to sexually molest her. See Simms v. Commonwealth, 2 Va. App. 614, 617, 346 S.E.2d 734, 735 (1986). This intent “may, and often must, be inferred from the facts and circumstances in a particular case.” David v. Commonwealth, 2 Va. App. 1, 3, 340 S.E.2d 576, 577 (1986) (quoting Ridley v. Commonwealth, 219 Va. 834, 836, 252 S.E.2d 313, 314 (1979)). A person’s conduct and statements may reveal a person’s intent. Long v. Commonwealth, 8 Va. App. 194, 198, 379 S.E.2d 473, 476 (1989). However, where an offense consists of an act combined with a particular intent, the intent must be established as a matter of fact, and “[sjurmise and speculation as to the existence of the intent are not sufficient.” Dixon v. Commonwealth, 197 Va. 380, 382, 89 S.E.2d 344, 345 (1955) (sexually suggestive telephone calls made prior to a burglary are insufficient evidence of breaking and entering with intent to commit rape).

*533Although the majority concludes that the jury could have found “as a matter of fact” that the defendant intended to sexually molest the child, in my opinion, it could have done so only through “surmise and speculation.” The majority relies on the circumstances surrounding the child’s disappearance, the fact that she has not been found, and the conduct of the defendant both before and after the child’s disappearance to conclude that the defendant sexually molested the child. In my opinion, these facts fall short of proving the defendant’s intent beyond a reasonable doubt.

The only circumstance surrounding the child’s disappearance, as distinguished from the defendant’s conduct, relied upon by the majority, is the fibers found in the defendant’s car. The presence of so many fibers consistent with those identified with the child permits an inference that she was in the defendant’s car in the passenger seat where the fibers were found. This inference supports a finding of abduction but not sexual molestation. The presence of fibers like those from clothing similar to the child’s may permit one to infer that she leaned against the seat without her jacket, but it does not permit one to find, beyond a reasonable doubt, that this event occurred as a result of sexual molestation, rather than from her jacket pulling up in the back when she sat down or from her removing her jacket for some other reason.

The fact that the child has not been found does not give rise to an inference that the defendant intended to sexually molest the child. Had she been found, but with no evidence of actual or attempted sexual molestation, a jury could not have speculated, with no more evidence than in this case, that the defendant had intended to sexually molest her. The failure to find the child does not enhance this possibility. To the contrary, the fact that she has not been found may, along with other circumstances, be evidence of her death by a criminal act or agency of another. See Epperly v. Commonwealth, 224 Va. 214, 229, 294 S.E.2d 882, 891 (1982). It is not evidence that she was sexually molested.

The defendant’s conduct is suspicious. He took an unusually long time to get home, he drove an unnecessary distance going home, and then he washed his clothes and sneakers when he arrived home. This behavior tends to support the finding that he abducted the child. It does not, however, indicate what he did or intended to do with the child.

*534The condition of the defendant’s shoes adds little, if anything, relevant to his intent. The Division of Consolidated Laboratories did not find blood on them, and the examiner could not recall cut marks being on the sneakers when she examined them. The marks were present when the sneakers were introduced into evidence, and testimony indicated they were present when the police received the sneakers from the defendant. Even if the jury inferred from this evidence that the defendant cut the sneakers, it could not infer from this fact that the defendant intended to molest the child.

The police did not find the child’s blood on the defendant, his shoes, or in his car. Although a prosecution witness testified that blood on a tissue found in the defendant’s car was the same type as the child’s blood type, a later prosecution witness established through a DNA test that this blood was not the child’s.

The majority places significance on the defendant’s interest in adult women at the party. He told the resident manager of the apartment complex, a woman, that he would not run an errand unless she went with him. He remarked to another man, while also boasting of his marital infidelity, that the women at the party were “nice looking” and that he would “like to go to bed with them.” Finally, he asked one woman present if she would go dancing with him. Although these remarks were crude and inappropriate, I do not agree with the majority’s characterization of them as reflecting an “intense interest in sexual matters.” More importantly, without a better knowledge of the psychodynamics involved, a jury cannot infer from the defendant’s crudely expressed interest in adult members of the opposite sex that he intended to molest a child.

Not only does the evidence fail to show affirmatively that the defendant intended to sexually molest the child, it also fails to eliminate other possible motives. He may have abducted the child for ransom and, for some unknown reason, changed his mind and killed her to avoid detection. He may have abducted her to give or sell to someone else. The possibility of parental kidnapping motivated by the estranged father, although not proven, was not eliminated by the prosecution’s case. The defendant has no burden to prove any of these possibilities. The prosecution, however, having failed to produce affirmative evidence of an intent to sexually abuse the child, was required to eliminate all other possibilities *535before the jury could reasonably infer a specific intent to sexually molest the child.

In essence, I read the majority to say that a jury may infer an intent to sexually molest a child from the fact that an adult male, who has expressed crude sexual remarks about adult women, has abducted a female child. Our desire to protect a small child from such a fate may justify an enhanced penalty for such an offense, and the General Assembly could provide that a greater penalty be imposed whenever an adult abducts an infant of which he or she is not a parent. However, the tragic circumstances of this case do not justify the creation of an inference based on an uninformed assumption regarding human behavior.

Such an unwarranted inference will generate disparate application of the law. The inference will be seized upon by triers of fact in some cases, while in other like cases it will not be. Therefore, I would reverse the judgment of conviction and remand the proceeding for a new trial, leaving to the prosecution to more appropriately indict the defendant, if the facts so justify. See Epperly, 224 Va. at 229, 294 S.E.2d at 891.

In addition, for the reasons stated in the panel’s majority opinion, I would further hold that the evidence of the trilobal fiber found in the defendant’s car was too remote to have any probative value and should not have been admitted. Because I would reverse for other reasons, I do not address whether this error was harmless.

Finally, also for the reasons stated in the panel’s opinion, I would hold that certain material identified in the panel’s opinion should have been produced by the prosecution; however, because I would reverse for other reasons, I do not address the materiality of the items.