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Berton v. Commonwealth

Court of Appeals of Virginia

December 3, 2013



William H. Miller, Assistant Public Defender (Dusty Sparrow, Assistant Public Defender; Office of the Public Defender, on briefs), for appellant.

Steven A. Witmer, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: Judges Frank, Petty and Senior Judge Haley Argued at Alexandria, Virginia



Appellant, Ronald P. Berton, was convicted in a jury trial of breaking and entering with the intent to commit aggravated sexual battery in violation of Code § 18.2-91, abduction with intent to defile in violation of Code § 18.2-48, rape in violation of Code § 18.2-61, sodomy in violation of Code § 18.2-67.1, and breaking and entering with the intent to commit rape in violation of Code § 18.2-90. On appeal, appellant argues the trial court erred in: 1) joining the trials involving two separate victims, 2) denying appellant's motion for funds for a DNA expert, 3) excluding appellant's DNA evidence, 4) finding the evidence sufficient to sustain appellant's conviction for breaking and entering with the intent to commit rape, and 5) denying appellant's jury instruction on a lesser-included offense of simple abduction of Z.N. For the reasons that follow, we reverse and dismiss in part, and reverse and remand in part.


September 10, 2008 Offense

In the morning of September 8, 2008, Z.N. was asleep in her bed, located in the living room of her ground-floor apartment in Arlington County. She heard a noise in the kitchen but thought it was her roommate. She then was awakened by the sensation of her blanket moving, followed by the appellant touching her buttocks. Z.N. looked up and saw appellant, with his penis exposed, wearing a condom, masturbating with one hand while wielding a large butcher's knife from her kitchen in the other hand. Appellant had the knife in his hand during the entire incident. When asked by Z.N. how he entered her apartment, appellant responded the door was locked and he unlocked the door.

Z.N. tried to get out of her bed but appellant pushed her back. She then attempted to flee, first to the bedroom, and then out of the apartment, but each time the appellant caught her and forced her back into the living room where her bed was located. Z.N. testified that appellant grabbed Z.N. on her left bicep. The police took DNA swabs from both her right and left biceps. Z.N. told appellant her roommate would soon return, and told appellant to leave her apartment. She told him if he raped or killed her, he would go to prison.

Appellant responded, "I could have raped you, but I'm not going to." Appellant forced Z.N. to display her breasts. He again masturbated, ejaculating into a condom. A condom was recovered near Z.N.'s bed. Before leaving, appellant took a towel and a glass of water from the kitchen. He thanked Z.N., hugged her, and said he felt "blessed." He did not take the knife with him.

A mixture of DNA was found on the handle of the butcher's knife. Testing established that appellant could not be excluded as a contributor to the mixture and that the likelihood of a randomly selected individual being a contributor to the DNA mixture was one in 2.1 million in the Caucasian population, one in 250 million in the black population, and one in 660 million in the Hispanic population.[2]

The same day of the incident, Z.N. assisted Sergeant Fortunato of the Arlington County Police Department in preparing a composite sketch of her attacker. Fortunato testified that Z.N. had good recollection and advised him where the composite needed to be adjusted. Z.N. testified, "I definitely remembered his face." The sketch was admitted into evidence and was published to the jury. Z.N. also testified her apartment was well lit and she could see everything "very clear." Appellant was in her apartment for fifteen to twenty minutes.[3]

Corporal Avery collected various swabs from the scene, including the swabs from Z.N.'s right and left biceps.

September 26, 2010 Offense

L.Z. lived in Arlington County, in a ground-floor garden apartment only one sixth of a mile from Z.N.'s apartment. Access to her apartment required passage through both the exterior door of the building, going down stairs and then passing through the door to her apartment.

On the evening of September 25, 2010, L.Z. was out drinking with friends and became intoxicated. She arrived at her apartment at about 2:00 a.m. on September 26, 2010, unlocked the door to her apartment, and entered. She plugged in her iPhone and went to bed. She did not testify whether she closed or locked the door.

She awoke at about 10:15 a.m. on September 26, and found her iPhone and laptop computer missing. A beer had been taken from her refrigerator, and she found a condom on her couch. She went to a neighbor for assistance because she did not have a land-line telephone to call the police. While waiting for the police, L.Z. began to notice vaginal discomfort. The police took L.Z. to Fairfax Inova Hospital for examination by a sexual assault nurse examiner (S.A.N.E.), which included the use of a physical evidence recovery kit (P.E.R.K.). Sperm was recovered both from the vaginal/cervical swab and the rectal swab, establishing penetration in L.Z.'s vagina and anus.

L.Z. had no recollection of the attack or how appellant gained access to her apartment. There was no direct evidence of how appellant gained entry into L.Z.'s apartment.

A forensic scientist compared the DNA found on appellant's buccal swab with L.Z.'s anal-rectal swab and the vaginal-cervical swab. Appellant could not be eliminated as a contributor. The probability of randomly selecting an unrelated individual with a DNA profile matching that developed from the sperm fraction on ...

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