Upon a Petition for a Writ of Actual Innocence.
Keith William Diener (Art of Lawyering PLLC, on briefs), for petitioner.
Susan Mozley Harris, Assistant Attorney General (Mark R. Herring, Attorney General, on briefs), for respondent.
Before Judges Frank, Humphreys and Chafin.
James Robert Altizer (" Altizer" ) petitions this Court to grant a writ of actual innocence based on non-biological evidence pursuant to Code § § 19.2-327.10 through 19.2-327.14. Altizer seeks to vacate his February 2, 2009 conviction for forcible sodomy in violation of Code § 18.2-67.1. In support of his petition, Altizer proffers three witnesses' affidavits that purportedly demonstrate the minor-victim's " scheme to defraud the court." Altizer alternatively argues that if this Court should not see fit to grant his petition, it should order an evidentiary hearing to further develop the facts underlying his claim of actual innocence. For the reasons that follow, we dismiss his petition.
A. Altizer's Trial and Conviction
On October 8, 2008, Altizer was tried and convicted in a bench trial by the Montgomery County Circuit Court (" trial court" ) for sodomizing a ten-year-old male child, in violation of Code § 18.2-67.1. The Commonwealth presented the testimony [63 Va.App. 318] of the victim, J.Y. (also " A.Y." ), and the victim's mother, Teresa Young (" Teresa" ). Altizer's live-in partner of thirteen years, Jay Phillips, Jr. (" Uncle Jay" ), was J.Y.'s biological uncle and Teresa's brother. J.Y. testified that on December 28, 2007, he spent the night at Uncle Jay and Altizer's home. There was also a four-year-old boy who was spending the night. J.Y. had previously visited Uncle Jay and Altizer's trailer several times before without incident. While Uncle Jay was asleep on the couch in the living room, Altizer invited J.Y. to the master bedroom at the back of the trailer to see something. Once inside, Altizer threw J.Y. on the bed, pulled off J.Y.'s pants and underwear, and performed fellatio on J.Y. Altizer stopped when " [h]e heard like a car door and he ran out of the room."
Initially, J.Y. did not tell anyone about the incident because he was afraid that it was going to ruin his family. After J.Y. heard his friends discussing another man who was a child molester, he decided to tell his mom what happened. According to Teresa's testimony, several months after the incident J.Y. came out of his room at 11:30 p.m. to tell her something. He was crying hysterically. He told her that he had been molested. It took him about fifteen minutes to calm down and stop crying. She called the police that evening and by the time they arrived J.Y. had calmed down. Teresa acknowledged at trial that she had to correct J.Y. about the date of the offense after he spoke to the police. He originally said it happened on New Year's Eve, but J.Y. actually spent the night at Altizer's several days before New Year's Eve, on December 28th.
After J.Y. and Teresa testified, the Commonwealth rested. The Commonwealth presented no physical evidence of the crime.
Altizer called four witnesses on his behalf: Uncle Jay; Patrick J. Phillips, Uncle Jay's adult son; Brandy Grundhl, Altizer's friend; and Michael Adams, Altizer and Uncle Jay's roommate. Altizer's witnesses contradicted some of the details of the event that J.Y. recalled--the date of the incident, [63 Va.App. 319] the layout of the furniture in the residence, and who was present the night of the incident and at what times.
The Commonwealth called one rebuttal witness, Investigator Brad Roop. Investigator Roop testified that Altizer admitted to him that he had not known J.Y. to lie or to make up stories.
Noting that J.Y. was an especially articulate child, the trial court found that " [J.Y.] [wa]s a credible witness." Considering all the evidence, the trial court found Altizer guilty of forcible sodomy.
B. Post-Trial Proceedings
Altizer's trial counsel filed a petition for appeal and a motion to withdraw as counsel with this Court. The argument asserted in the petition for appeal was that the trial court erred in affording greater weight to the testimony of the victim over the testimony of the defense witnesses. This Court granted counsel's motion to withdraw and denied the petition for appeal. In that October 22, 2009 per curiam order, this Court denied Altizer's petition for appeal because the trial court found the victim credible, a determination exclusively within the trial court's purview.
In 2010, the trial court denied Altizer's petition for a writ of habeas corpus. Altizer then appealed to the Supreme Court of Virginia, which ...