FROM THE CIRCUIT COURT OF CAMPBELL COUNTY. John T. Cook, Judge.
Joseph A. Sanzone (Sanzone & Baker L.L.P., on brief), for appellant.
Virginia B. Theisen, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Present: Judges Chafin,
O'Brien and Russell.
[66 Va.App. 95] MARY GRACE O'BRIEN,
A jury convicted Keith Alexander Mayberry (" appellant" ) of three crimes: object sexual penetration, in violation of Code § 18.2-67.2; indecent liberties with a child while in a custodial or supervisory relationship, in violation of Code § 18.2-370.1; and aggravated sexual battery of a child less than thirteen years old, in violation of Code § 18.2-67.3. Following a sentencing hearing, the court imposed the jury verdicts of life imprisonment for the object sexual penetration charge, five years of incarceration for the indecent liberties charge, and twenty years of incarceration for the aggravated sexual battery charge. Appellant asserts the following assignments of error:
I. The [t]rial court erred by not allowing defendant's counsel to introduce a transcript of the complaining witness' prior sworn testimony as a recent complaint as the defendant has a sixth amendment and fourteenth amendment right to a fair trial, which would prohibit evidence from being solely used to benefit the Commonwealth in a criminal trial.
II. The trial court erred by failing to give an instruction which informed the jury that if the defendant claimed accidental touching, and that the Commonwealth had the burden to prove that the touching was not accidental.
" On appeal, 'we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.'" Archer v. Commonwealth, 26 Va.App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418, 4 Va. Law Rep. 127 (1987)). So viewed, the evidence established that on June [66 Va.App. 96] 5, 2013, the complaining witness (" K.M." ), who was twelve years old, spent the night at appellant's mobile home. Appellant, K.M.'s uncle, lived with his girlfriend, Angela Lopez, and her three sons. Lopez and her children were out of town on the evening of June 5.
K.M. testified that after she and appellant bathed his dog, they sat down to watch television. At that time, appellant started hugging her. She stated that he began " touching [her] more inappropriately . . . [on her] chest and [her] lower area." Initially, he touched her over her clothing, but eventually he put his hand inside her shorts and underwear. When asked by the prosecutor if " any part of [appellant] touch[ed] inside" her private parts, K.M. answered, " Yes."
On both direct and cross-examination, K.M. acknowledged that she previously testified at the preliminary hearing that appellant did not penetrate " any part" of her. Defense counsel cross-examined her at some length concerning her statements at the preliminary hearing. K.M. explained that the preliminary hearing was her first time in a courtroom and she was very nervous. She asserted that despite her prior inconsistent statements at the preliminary hearing, her trial testimony was accurate. Appellant's counsel attempted to read from and introduce the transcript of the preliminary hearing. The Commonwealth's Attorney objected to the introduction of the transcript on the grounds that K.M. never denied making an inconsistent statement during her testimony at the preliminary hearing. The trial court sustained the objection.
Angela Lopez testified that the victim would often speak to her about what was happening in K.M.'s life. Approximately five days after the incident, K.M. told her that on June 5, appellant " wouldn't leave her alone the whole time that she was there, that he kept tickling her." Lopez stated that K.M. said she had asked appellant to stop but he would not, and she was " uncomfortable." K.M. showed Lopez where appellant had been tickling her, on her inner thigh.
Melissa Nelson, a child protective services investigator, testified at trial. She is certified as a forensic interviewer and [66 Va.App. 97] is trained to speak with children about allegations of sexual abuse. Nelson explained that she met with K.M. on June 21, and K.M. told her about the events of June 5. ...