FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK. John C. Morrison, Jr., Judge Designate.
Caswell W. Richardson, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.
Robert H. Anderson, III, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Present: Judges McCullough, Huff and Senior Judge Haley. OPINION BY JUDGE GLEN A. HUFF.
[63 Va.App. 403] GLEN A. HUFF, JUDGE.
Joseph A. Turner (" appellant" ) appeals his convictions of three counts of aggravated sexual battery, in violation of Code § 18.2-67.3(A)(1). Following a bench trial in the Circuit Court of the City of Norfolk (" trial court" ), appellant was sentenced to thirty years' imprisonment in the Department of Corrections with seventeen years suspended. Appellant presents two assignments of error on appeal. First, appellant contends the trial court erred in allowing C.M. (the child victim) to write certain portions of her testimony, rather than speaking it, as this violated appellant's Sixth Amendment right to confront his accuser. Second, appellant contends the trial court lacked the authority to allow C.M. to write her testimony, as the General Assembly specifically provided that this situation be addressed in a different manner when it enacted Code § 18.2-67.9. For the following reasons, this Court affirms the judgment of the trial court.
On appeal, " 'we consider the evidence and all reasonable inferences flowing from that evidence in the light most favorable to the Commonwealth, the prevailing party at trial.'"
Williams v. Commonwealth, 49 Va.App. 439, 442, 642 S.E.2d 295, 296 (2007) ( en banc ) (quoting
Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004)). So viewed, the evidence is as follows.
In February 2011, appellant began living with his girlfriend and her ten-year-old daughter, (" C.M." ). In December 2011, C.M. informed her mother that appellant had sexually abused her, causing the mother to end her relationship with appellant and tell appellant that he was no longer welcome to live in her house.
[63 Va.App. 404] On July 18, 2012, appellant was indicted on three counts of forcible sodomy, in violation of Code § 18.2-67.1, and three counts of aggravated sexual battery, in violation of Code § 18.2-67.3(A)(1). Prior to appellant's trial, the Commonwealth filed a motion in limine seeking to allow C.M. to write portions of her testimony. The motion alleged that on three separate occasions during appellant's preliminary hearing, C.M. had been unable to respond orally to questions propounded by counsel and, consequently, was allowed to respond in writing.
At the hearing on the motion in limine, the Commonwealth presented the testimony of Erinn Portnoy (" Portnoy" ), a licensed clinical social worker, whom the trial court received as an expert witness in the field of child psychology, specializing in victims of child abuse, sexual abuse, and physical abuse. Portnoy testified that she had conducted a forensic evaluation of C.M. and found that C.M. " had a great deal of trouble verbalizing the allegations" against appellant. Portnoy testified that C.M. could talk about the allegations in " general terms, but when it came to specific [sic], she needed to write them down." Specifically, Portnoy described C.M. as " very avoidant when talking about the allegations. She would put her head down on the table. She was having a lot of difficulty. She just shut down almost completely. Very teary, she didn't want to talk about what happened." Based on her evaluation,
Portnoy diagnosed C.M. with post-traumatic stress disorder, and concluded that, even if C.M. testified through closed-circuit television, she would still need to " write down" parts of her testimony " due to her trauma and her avoidance symptoms."
At the conclusion of the hearing, the trial court granted the Commonwealth's motion, but conditioned its order on the requirement that the Commonwealth attempt to elicit an oral response from C.M. before she would be allowed to respond in writing. The trial court further ruled that " [i]f and when [C.M.] elects to write an answer down, the Commonwealth can take the answer and read it to her and say, 'Is this your answer to the question?'" The trial court concluded that this [63 Va.App. 405] procedure would provide " sufficient opportunity for . . . appellant to observe [C.M.'s] demeanor. If she's making it up or lying, then there will be plenty of opportunity for somebody to evaluate that, but I don't find that [appellant's Sixth Amendment] rights are going to be compromised."
At trial, C.M. was initially questioned regarding her competency as a witness, and the trial court ruled that she was competent to testify. C.M. then testified that appellant had touched her six times in a way she did not like, including three times at her home in Norfolk. Regarding the first incident in Norfolk, C.M. testified that it occurred when she was sleeping in her bed " before Christmas." The Commonwealth then asked C.M. to " tell the judge what happened," but C.M. was unable to do so. Consequently, the trial court allowed C.M. to respond to the Commonwealth's question in writing. The trial court then accepted C.M.'s written response into ...