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Paduano v. Commonwealth

Court of Appeals of Virginia

December 30, 2014

JOSEPH LOUIS PADUANO
v.
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY. Charles J. Strauss, Judge Designate.

Glenn L. Berger (Berger & Thornhill, on brief), for appellant.

Victoria Johnson, Assistant Attorney General (Mark R. Herring, Attorney General; Katherine Quinlan Adelfio, Assistant Attorney General, on brief), for appellee.

Present: Judges Petty, Huff and Senior Judge Annunziata. OPINION BY JUDGE ROSEMARIE ANNUNZIATA.

OPINION

Page 746

[64 Va.App. 175] ROSEMARIE ANNUNZIATA, JUDGE.

Joseph L. Paduano (" appellant" ) appeals his convictions in a bench trial of two counts of carnal knowledge of a child between the ages of thirteen and fifteen, second or subsequent offense, in violation of Code § 18.2-63(A). He was sentenced to a total of twenty years' incarceration in the Virginia Department of Corrections.[1]

On appeal, appellant contends the trial court erred in denying his motion for a bill of particulars, in convicting appellant of two counts under Code § 18.2-63(A) for acts that occurred during the same incident, and sentencing appellant to two consecutive sentences for the offenses. Finding no error, we affirm the convictions.

BACKGROUND

Under familiar principles of appellate review, " '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 [64 Va.App. 176] Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004)). So viewed, the evidence is as follows.

Between April 8 and 14, 2012, the victim, who was then thirteen, stayed at the Pittsylvania County home of her sister, T.P. T.P. and appellant, who was her husband, lived in the home with their children and a roommate.

On one night during the time period, the victim was alone with appellant playing pool in the basement of the home. The other children were upstairs, and T.P. was not at home. Appellant kissed the victim, and when he pulled up her shirt several times, the victim pulled it back down again. He also touched her breasts under her shirt. Against the victim's will, appellant tried to pull down the victim's pants several times. In the course of his attempts to remove the victim's pants, appellant penetrated her vagina with his finger. He then turned the victim around, bent her over the pool table, and put his penis inside her vagina. Appellant had sexual intercourse with the victim for several minutes. After this sequence of events, appellant left the victim in the basement and went upstairs.

On May 26, 2012, police officers responded to a call from T.P. claiming that appellant was threatening to commit suicide. T.P. reported that appellant became upset after she confronted him about having sex with the victim.

Law enforcement officers located appellant shortly after arriving on the scene, and detained him in the back of the officers' patrol vehicle. When the police later interviewed appellant, he admitted that he had had sex with the victim.

In addition to the firearms charge, a Pittsylvania County grand jury indicted appellant on two counts of carnal knowledge of a minor, in violation of Code § 18.2-63(A). Specifically, the grand jury charged:

Between April 8, 2012 and April 14, 2012, . . . [appellant] . . . [d]id unlawfully and feloniously, while being over the age of 18 years, engage in sexual intercourse with T.M.H., a child born May 22, 1998, the accused having been previously sentenced for carnally knowing while over the age of

Page 747

18 a [64 Va.App. 177] child between 13 and 15 years of age, in violation of . . . Code ...

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