Opinion
Record No. 0061-93-2
Decided: June 21, 1994
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY, William R. Shelton, Judge
Affirmed.
(Mary Phillips Usry; Keith Usry, on brief), for appellant. Appellant submitting on brief.
(Stephen D. Rosenthal, Attorney General; Eugene Murphy, Assistant Attorney General, on brief), for appellee. Appellee submitting on brief.
Present: Judges Benton, Koontz and Elder
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Rudy Fernando Garcia Lopez (Lopez) appeals his conviction on one count of aggravated sexual battery, Code Sec. 18.2-67.3. In a bench trial, the court found Lopez guilty and sentenced him to five years in prison with all but sixty days suspended on condition that Lopez receive counseling, complete a drug rehabilitation program, and learn to speak English. In this appeal, Lopez challenges the sufficiency of the evidence to support his conviction. He contends that the evidence of the Commonwealth's sole witness, a minor, was not credible. Under the applicable standard of review, we find the evidence sufficient and affirm the conviction.
It appears from the record that the proper spelling of appellant's middle name is "Fernando." The alternate spelling is the result of a clerical error made during the arrest and indictment stage of the initial prosecution.
The complaining witness, Jessica, was eleven years old at the time of the alleged battery and the foster daughter of Diane Kestler Lopez (Kestler). Kestler also cared for Jessica's younger brother and sister and her own natural son from a previous marriage. Lopez and Kestler met on December 20, 1991. Although Lopez spoke no English and Kestler only a few words of Spanish, the couple quickly developed a romantic relationship and married five weeks later.
Jessica testified and gave the following account of the pertinent events that led to the charge against Lopez. On the evening of the wedding, Lopez entered the room Jessica shared with her sister, by "jiggling" the door knob to open the knob latch on the door. Lopez was carrying a knife and placed it on a table by her bed. Lopez then removed the covers and placed his hand inside Jessica's underwear. After prompting by the Commonwealth's Attorney, Jessica further testified that Lopez placed his fingers inside her vagina. She tried to move his hand but was unable to do so. After Lopez had been touching Jessica for about ten seconds, Kestler called to Lopez from another part of the house. Lopez then left Jessica's room.
Jessica testified that she was certain that it was Lopez who had entered her bedroom and not one of the other men who had attended a party at the house that night. She testified that all of the guests had left the house after she went to bed and that she could see Lopez clearly because the light was on in the hallway outside her bedroom. Jessica testified that she told Kestler about the incident the following morning but that Kestler did not believe her.
On cross-examination, Jessica conceded that she was upset that Kestler had married Lopez. She also stated that she was upset over the death of Mike Tunstall, Kestler's previous live-in boyfriend, who had committed suicide in October, 1991. Jessica testified that Lopez had told her he had touched a girl before when he was younger. Jessica also testified that on a previous occasion she told Kestler about other incidents, earlier in her life, when she had been chased or sexually touched by other men. She testified that Kestler told her there was nothing that could be done about it.
In the course of her testimony, Jessica made confusing and contradictory statements about the events on the night of the alleged assault. The defense was able to establish that, contrary to her original testimony, Jessica was not certain that other men had left the house at the time of the assault.
Lopez, testifying with the aid of a translator, testified that Jessica acted as translator during his conversations with Kestler. He further testified that when he moved in with Kestler, he found it necessary to discipline the children because "Americans are very lenient with their children." Lopez testified that two other men stayed at the house that night.
Lopez further testified that on the night of the wedding, he and Kestler went to bed at 9:00 p.m. They were both feeling unwell and attempted to have intercourse, but he was unable to perform because he had consumed too much beer. He denied going into Jessica's room or telling her that he had once touched another girl. Lopez testified that the hall light in Kestler's house was not working on the day of the wedding.
Kestler testified that Jessica did not like Lopez and told her that "we didn't need to replace Mike [Tunstall]." Kestler testified that on the night of the wedding, she and Lopez went to bed and had intercourse. Lopez then fell asleep, and Kestler took a shower. Kestler testified that the following morning Jessica told Kestler that someone had punched her in the stomach. Because Jessica did not know who had punched her, Kestler told her "maybe you just dreamed it then."
Kestler testified that Jessica had often told her stories of being chased or attacked by men. Kestler also testified the hall light in her house was not working on the day of the wedding.
In closing argument, Lopez argued that Jessica was not a credible witness and that she fabricated her testimony because of her dislike for Lopez. Lopez asserted that the events of the evening as described by the defense witnesses contradicted Jessica's version of events, further undermining her credibility. The Commonwealth argued that Jessica was a credible witness, that Kestler was biased in favor of her husband, that there were also inconsistencies between Kestler's and Lopez's descriptions of the events of the that night, and that none of the defense evidence rebutted Jessica's description of the events surrounding Lopez's assault on her.
"On appeal, we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. The judgment of a trial court sitting without a jury is entitled to the same weight as a jury verdict and will not be set aside unless it appears from the evidence that the judgment is plainly wrong or without evidence to support it." Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). Lopez concedes that a charge of aggravated sexual battery may be sustained on the uncorroborated testimony of the victim. See Garland v. Commonwealth, 8 Va. App. 189, 191-92, 379 S.E.2d 146, 147 (1989) ("because sexual offenses are typically clandestine in nature, seldom involving witnesses to the offense except the perpetrator and the victim, a requirement of corroboration would result in most sex offenses going unpunished"). Nonetheless, he asserts that Jessica's testimony, in light of its inconsistencies and the contradictions raised by the defense evidence, lacks sufficient credibility to support his conviction without corroborating evidence. We disagree.
"In Virginia, a child need not have reached a certain age in order to be competent as a witness . . . . Because of the trial court's opportunity to see the child and observe his or her demeanor on the stand and manner of testifying, the determination of competency is left largely to the discretion of the trial court. Therefore, the trial court's judgment will not be reversed in the absence of manifest error." Durant v. Commonwealth, 7 Va. App. 454, 462, 375 S.E.2d 396, 400 (1988) (citations omitted). Thus, once the trial judge determined that Jessica was a competent witness, her testimony was to be received and its credibility scrutinized under a standard no different from that of any other competent witness.
" '[T]he finding of the judge, upon the credibility of the witnesses and the weight to be given their evidence, stands on the same footing as the verdict of a jury, and unless that finding is plainly wrong, or without evidence to support it, it cannot be disturbed.' " Speight v. Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d 95, 98 (1987) (en banc) (quoting Lane v. Commonwealth, 184 Va. 603, 611, 35 S.E.2d 749, 752 (1945)). To overturn a conviction under this standard, we must find that the testimony relied on by the trial judge was inherently incredible, or so contrary to human experience as to render it unworthy of belief. See Snyder v. Commonwealth, 220 Va. 792, 796, 263 S.E.2d 55, 57-58 (1980); Willis Bell v. Commonwealth, 218 Va. 560, 563, 238 S.E.2d 811, 812-13 (1977). It is true that Jessica's credibility was subjected to substantial attack and that physical evidence was not presented to corroborate that the assault had occurred. Cf. Scoggin v. Commonwealth, 158 Va. 888, 895, 163 S.E. 83, 85 (1932). That is not to say, however, that Jessica's testimony was necessarily unworthy of belief. Fisher v. Commonwealth, 228 Va. 296, 300, 321 S.E.2d 202, 204 (1984); see also Snyder, 220 Va. at 796, 263 S.E.2d at 58; Kehinde v. Commonwealth, 1 Va. App. 342, 346, 338 S.E.2d 356, 358 (1986).
Jessica testified that she made prompt complaint of the defendant's attack to her foster mother the morning following the assault and to her foster brother later in the day. Cf. Fisher, 228 Va. at 300, 321 S.E.2d at 204. Although Kestler denied that Jessica made a specific complaint and Kestler's son stated that he did not recall Jessica making such complaint, they both testified for the defense. The trial judge would have made judgments on their credibility and potential bias as well.
The issue presented to the trial court was simply that of credibility of the witnesses. The trial judge had full opportunity to observe and evaluate the witnesses and to weigh their testimony. In the judge's voir dire preceding Jessica's testimony, he stated that Jessica was cognizant of her oath, was aware of her duty to tell the truth, and was competent to testify. The trial judge had the opportunity, which we lack, to observe and weigh Jessica's intelligence, demeanor, and ability to recall and communicate facts accurately.
Similarly, we lack the judge's perspective on the credibility and potential bias of the defendant, his wife, and his step-son. The trial court believed the victim's testimony and found that her evidence constituted proof of guilt beyond a reasonable doubt. That evidence was neither inherently incredible nor so contrary to human experience as to render it unworthy of belief. Accordingly, the conviction appealed from is affirmed.
Affirmed.
Rudy Fernando Garcia Lopez's conviction rests solely on the testimony of the child accuser. Nothing in this record, however, corroborates in any respect the child's testimony that Lopez touched her. Moreover, the evidence proved that the child had a motive to fabricate the accusation. In addition, her testimony is internally inconsistent and materially contradicted in its significant aspects by all the other witnesses who testified. For this reason, I would hold that it fails to prove the offense beyond a reasonable doubt.
Regrettably, the transcript is replete with indications that in response to questions the child "nods head," shakes head," and gave "no response." The child was never instructed to give a verbal response.
"We are not required to believe that which is contrary to human experience and which we know to be incredible. We are not compelled to accept as true what in the nature of things could not have occurred in the manner and under the circumstances narrated." Vance v. Commonwealth, 155 Va. 1028, 1032, 154 S.E. 512, 513 (1930). Although mindful of the deference this Court owes the factual findings of the trial court, I believe that the record in this case does not prove Lopez's guilt beyond a reasonable doubt. Because that standard is compelled by the federal constitutional guarantee of due process of law, In re Winship, 397 U.S. 358, 364 (1970), I dissent.
Among the relevant factors in determining the credibility of a witness is the witness's motive to lie. Vance, 155 Va. at 1032, 154 S.E. at 513. The evidence in this case proved that the child had ample reason to falsely accuse Lopez. To fully comprehend the child's motive, the evidence concerning her life in Diane Kestler's home needs to be developed. The evidence is uncontradicted that at the time of this alleged incident the child and her siblings had been living for three years in Kestler's home where they had been placed by the county social services agency. When the child was seven years old, the child, her sister, and her brother were removed from the child's birth mother's custody because she left them alone at home and neglected them. Their father lived outside the United States.
The child and her siblings were from Honduras and initially spoke only Spanish. Kestler taught them to speak English. Kestler testified that the child's language barrier caused the child to have difficulty in school and that the child was often teased because of her heritage. Kestler described the child as "moody." However, Kestler testified that she grew to love the child and her siblings as her own. Kestler was not married and had two children by her prior marriage, only one of whom was then living at home.
When the child came to live with Kestler, Kestler was then dating Michael Tunstall. Tunstall spent a significant amount of time with the child and her siblings and became very close to them. Kestler testified that Tunstall was their father in every sense of the word. The child was particularly fond of Tunstall, and she was his favorite. The child testified that Tunstall took her to events she enjoyed and that Tunstall was like a father to her. In this family-type environment, the child began to meet friends in the neighborhood and had positive experiences in Kestler's home. Tragically, Tunstall committed suicide when the children were in school. The child said that she was upset when Tunstall died because they were so close and she loved Tunstall.
Several months after Tunstall's death, Kestler was introduced to Lopez by one of her friends and began dating him. Kestler testified that the child was not "real thrilled" about her dating Lopez and began to resent Lopez's presence. Kestler testified that the child expressed her dissatisfaction as follows:
[S]he told me we didn't need [Lopez] in the house because we didn't need to replace [Tunstall], that [Tunstall] did not need to be replaced, that he would be the father and that [Lopez] could not come into the house and take his place.
Despite the child's objection to Kestler's attempt to "replace" Tunstall with Lopez, Kestler asked the child to act as their translator when Lopez visited the home. Lopez, who is from Guatemala, spoke only spanish. The child testified that she did not want to translate for Kestler and Lopez. Indeed, she was irritated by the request that she translate.
Several months after Kestler began dating Lopez, they decided to marry. Kestler testified that the child became very upset when Kestler told her of the impending marriage. The child also testified that she was upset when she learned of the planned marriage. Lopez said that after the issue of the marriage arose, the child refused to translate further for them.
The weekend prior to the wedding between Kestler and Lopez, the child's birth mother informed the child that the child would be leaving Kestler's home and returning to her birth mother's custody. Although the child testified that her birth mother told her that she and her siblings would be returning to her custody, the child also testified that she harbored the belief that she would be able to stay with Kestler after the marriage. It is apparent, however, that the move back to the child's birth mother's residence was closely related in the child's mind to Kestler's imminent marriage to Lopez and doubtlessly caused the child great concern. The move would, after all, require the child to move away from a family environment where she had found comfort, friends, and love.
The day Kestler and Lopez were to be married, the child missed her school bus and went to the home of one of Kestler's friends. The child's distress during that time is further evidenced by her testimony that Kestler told her, on the day that Kestler married Lopez, that she and Lopez were not really married and that the child should not inform Lopez of that fact. The evidence proved that Kestler and Lopez did marry, however, and had a party at Kestler's house to celebrate the wedding. The child testified that she was upset to learn that Kestler married Lopez. The child also testified that she wished Kestler had not married Lopez and wished Kestler had married someone else like Tunstall. The child expressed a belief that "the day after they got married [Lopez] would start bossing [the child] around."
Although the child wanted to believe that she would not have to leave Kestler, the evidence proved she would be returned to live with her birth mother, who had neglected her. Thus, within a period of several months, the man who was the child's father substitute died; a man the child did not like was moving into Kestler's home; and the child was aware that when Lopez moved into the home she would be removed. The child's motive to fabricate the story is manifest from this evidence.
The evidence also strongly suggests that the child drew upon her own imagination in describing Lopez's attitude toward her. The child testified that after she had come to know Lopez "he kept touching [her] . . . legs." She did not testify when those events occurred or describe the circumstances that existed. She further testified that Lopez told her stories "about when he touched [another] little girl." Kestler testified, however, that the child never told her that Lopez touched her or that Lopez had told her such stories. The evidence contains no testimony to suggest that the child made complaints to anyone concerning those stories or touching.
Most disturbing, however, is the child's history of making claims that she has been chased or molested or attacked. One of those claims was a false charge of rape that the child related on one occasion when Kestler was present. The child told one of her friends a story about being raped in her bedroom in Honduras. Kestler said that when the child told her that story, she pressed the child about details of that incident. She said the child then denied that it occurred and said that she had only told the story to console the child's young friend, who was present and who had been sexually touched by her father. The friend's father was in jail for the offense.
Kestler also testified that before she met Lopez, the child told her stories about men harassing her. The child often told her of a man being in the birth mother's house on the child's bed when no adults were present. The child also told her on several occasions that the same man tried to abduct her and the child's birth mother when they were leaving a store. On other occasions, the child talked about a man chasing the child in Honduras from a store to her home.
The child admitted that before Kestler met Lopez she told Kestler about a man touching her when she was younger. The child also testified that other men had touched and chased her when she was younger. She said that she was chased by a tall, skinny man once when she went to the store in Honduras. She said on another occasion a man was in her bedroom jumping on her bed shortly after she came to the United States. The child also testified that she was aware that her friend had been touched sexually by her father.
The child's stories about other men chasing her and being in her bedroom were proved to be neither true nor false. The stories proved, however, that the child had experiences or an imagination that gave her a basis upon which to know that stories of molestation would gain attention. Moreover, the significance of the child's lie about having been raped cannot be easily discounted. The child told that story to show empathy for another person and to thereby influence that person's feelings. In so doing, she clearly understood the effect upon others of recounting that she had experienced a serious sexual molestation. She also was aware, from her young friend's experience, that a person could be removed from the home and jailed for sexual touching. That she would lie about such an event to soothe a friend's feelings substantially calls into question the veracity of her accusation against Lopez, a person she did not want in Kestler's home.
The child also had a fear that someone might enter her room at night to molest her. That fear also had its genesis in an experience that occurred before Kestler met Lopez. The child testified that she began to lock her bedroom door because of fear of a male intruder entering her room. Although Kestler testified that she had called the police on several occasions to report that a "peeping Tom" had been prowling near her house, she testified that she told the children to lock their doors for a reason that had nothing to do with the prowler. She said the boys often would enter the girls' rooms after they had gone to sleep and engage in pranks, such as hitting them, and putting toothpaste or shaving cream on them. The girls retaliated by going into the boys' room, painting the boys' toenails or putting shampoo in the boys' hair. Kestler testified that she told them to lock their doors to stop the complaining about pranks.
The child's testimony of the events of the wedding night and the circumstances of the alleged molestation also strongly suggests a lack of candor. The child testified that at some point after her nine o'clock bedtime, Kestler came to her and told her to go to bed. She first said Kestler went to bed and left her in the living room eating. The child said she continued eating and went to bed after she finished eating. On another occasion, the child said that she immediately went to bed when Kestler came to her and told her to go to bed. She testified that she went into her bedroom, locked the door, and climbed into the bed she shared with her sister without removing her clothing. She said her sister was in the bed asleep.
The child testified that after she was in bed but before she had fallen asleep she heard the door jiggling, saw the door open, and saw "a shadow that put the knife down onto the desk . . . beside the door." She testified that although no light was on in her room she could tell from a light in the hall that the shadow was Lopez. Although the lighting conditions caused the intruder to appear as a shadow, the child testified that the man who came into her room wore a brown, long sleeved shirt with squares on it, green pants, and boots with chains. She testified that the man said nothing to her, stood by her bed, removed her covers, put his hand under her clothing, and put his finger in her vagina.
She also said that while the man was in her room, she heard Kestler getting out of the bathtub, heard Kestler say something, saw the man go to the bathroom door and knock, and then go to Kestler's room. The child also testified that when the person came into her room none of the other people who were at the party were in the house. She said that they had gone to the store. She testified, however, that when she went to bed, two adult men who were at the party and the two boys were in the living room.
Contrary to the assertion in the majority opinion, no evidence proved that Kestler called Lopez from the bathroom.
Kestler testified that approximately eighteen persons, including the children, were in the house for the wedding party. She then testified as follows:
Q How long did the party go on?
A Well, I was really sick so about 8:30, 9:00 somewhere in that area I couldn't stay up any more. I was sick. I said look I've got to go lay down. I'm sick. So Ann Woods, Patricia, Erica and the other girl, Micho and Augusto left and we went to bed.
Q When you went to bed were there any people up still?
A Mikey, his little friend, [the child] was sitting on the couch eating a bag of chips; and she was to go to bed when she finished eating the chips. Geltso, and Ruben, and Jenny, and Brian were in the process of going to bed.
Q So you and Fernando went to bed before [the child]; is that correct?
A Yes.
Kestler said that when she and Lopez went to bed, Lopez left the dining room first and went to the bedroom. Kestler told the child to go to bed after the child finished eating her chips. Kestler then used the toilet and joined Lopez in their bedroom. She said the child was still in the living room with others when she went to bed. Kestler testified that the guests went to the store before the child went to bed. She recalled that they had gotten the chips the child was eating when Kestler last saw the child that night.
Kestler further testified that when she and Lopez went to the bedroom she undressed and helped Lopez undress. They then "proceeded to have sex," and Lopez went to sleep. She testified that after she laid there for a while, she pushed Lopez over and went to the bathroom. She stated that she took a shower for a few minutes because she had a fever. She said that when she returned to the bedroom, Lopez was sleeping where she left him wearing only the underpants that she had pulled up on him. Kestler said that later during the night Lopez woke up to vomit. She handed him a pan to use, he used it, and he went back to sleep.
Lopez also testified concerning that evening. He said that following the wedding, he and Kestler entertained friends at a party at her house. The children played. He testified that he went to bed around nine o'clock with Kestler. He recalled that Kestler went to use the bathroom before they went to bed. While she was in the bathroom, he, the children, and the other guests were in the living room. Lopez testified that when he and Kestler went to their bedroom he took his clothes off and fell asleep after unsuccessfully attempting to have sexual relations with his wife. He said he had consumed too much beer and had an upset stomach from drinking beer. Kestler also was not feeling well. Lopez said he woke at three in the morning vomiting off and on. Kestler brought him a pot for his vomiting, and he did not get out of bed. He said that when he and Kestler went to bed he did not get out of bed and did not go to the child's room. He denied that he ever sexually touched the child.
Lopez also testified that when he went to bed, two of his male friends, both Hispanic, were still in the living room with the children. He thought another man also was there. When he left for work the following morning, his two friends who had spent the night in the house were still asleep in the living room. Lopez said he wore Khaki pants and a striped shirt on his wedding day. One of his friends wore green pants and a black shirt. The other wore a multi-colored jacket and black pants. No evidence proved that Lopez's dress was consistent with the description that the child gave of the person she alleges entered her room.
The child's testimony and Kestler's testimony prove that Kestler was in the shower for a few minutes on the wedding night. The Commonwealth contends that during those few minutes Lopez, dressed differently than he had been all day, entered her room and molested her. That contention is further rendered incredible because of Kestler's testimony that when she returned to the bedroom after a quick shower, Lopez still was asleep and wearing only the underwear that she put on him.
The child testified at one point in the trial that none of the eighteen people who attended the wedding reception were still in the house when the person who molested her came into her room. She also testified, however, that two adult men and the two boys were still in the living room when she went to bed. She thereby demonstrated either her willingness to testify to facts she could not know or to her willingness to invent facts she believed would substantiate her allegations.
Although the child claimed that she could discern who the man was that entered her room because of the hall light, Kestler testified that the light in the hallway had been defective for a while and was not working the day she married Lopez. Kestler testified that only the light from inside the bathroom could have possibly illuminated the hall. Lopez also testified that the light in the hallway never worked. He recalled fixing the light one day after the marriage when Kestler invited some of her friends to spend the night.
The Commonwealth proved none of the circumstances surrounding the child's report of the event that led to the charge against Lopez. The Commonwealth's only witness was the child, who claimed that she promptly reported the incident the following morning when she told Kestler of the incident. Kestler denied that the child reported any such incident to her. Kestler testified that the following morning the child said:
that somebody had punched her in her stomach. I said, "Who punched you in the stomach?" She said, "I don't know." I said, "Does your stomach hurt?" And she said, "No, not really." And I said, "Oh, well, maybe you just dreamed it then." And then it just kind of dropped the subject.
Kestler testified that the child never told her that Lopez had touched her or that anyone had entered her room.
The child's claim of prompt reporting is also belied by her own testimony that she did not cry out during the assault because she was afraid Kestler would hit her. Nothing in the record explains why she would be afraid of Kestler at 9:00 p.m. and not afraid the next morning. In addition, the child testified that she then went to school but told no one at school of the incident. The child also testified that she saw her birth mother after school but did not tell her of the incident. Indeed, she testified that although she now lives with her birth mother, she has never told her birth mother of the incident.
The child further testified that the day following the wedding she was in an automobile driven by one of Kestler's adult friends. She said that she told Kestler's son that Lopez had come into her room and touched her. Kestler's son, who was thirteen years old, testified that the day following the wedding he was in the car with the child and that the child did not tell him that Lopez touched her. Thus, every person to whom the child claimed she made a report testified that the child did not do so. Moreover, the record does not reflect when the first report was made.
In summary, the only evidence that tends to show Lopez's guilt in this case comes from the doubtful testimony of his accuser. The important facts in this case are as follows: (1) the child had a significant motivation to lie, (2) she once lied about having been raped, (3) she was aware of the impact a story of sexual abuse would have, (4) she had established a pattern of telling stories of harassment or sexual abuse in order to gain attention or curry favor, (5) her testimony of repeated assault and harassment is highly improbable, and (6) her testimony of the circumstances of her molestation on the night in question is marred by inconsistency and contradiction. See Young v. Commonwealth, 185 Va. 1032, 1042, 40 S.E.2d 805, 810 (1947) ("[We reverse] because there is too much that is contrary to human experience in her version of the matter when analyzed in light of the facts and circumstances shown to exist, [to prove guilt beyond a reasonable doubt]") (emphasis added). Because the facts and circumstances of this case raise a serious question whether the events occurred as recounted by the child, I would hold that the evidence does not prove beyond a reasonable doubt that Lopez committed the acts. See Willis v. Commonwealth, 218 Va. 560, 238 S.E.2d 811 (1977).