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Campos v. Commonwealth

Court of Appeals of Virginia

June 13, 2017

JUSTO MAZARIEGOS CAMPOS
v.
COMMONWEALTH OF VIRGINIA

         FROM THE CIRCUIT COURT OF HALIFAX COUNTY Joel C. Cunningham, Judge

          Brendan U. Dunning (Law Office of Brendan U. Dunning, P.C., on brief), for appellant.

          J. Christian Obenshain, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

          Present: Chief Judge Huff, Judges Petty and Beales Argued at Richmond, Virginia.

          OPINION

          GLEN A. HUFF CHIEF JUDGE.

         Justo Mazariegos Campos ("appellant") appeals his convictions of aggravated sexual battery by a parent, in violation of Code § 18.2-67.3(A)(3); carnal knowledge of a child, in violation of Code § 18.2-63; taking indecent liberties with a child, in violation of Code § 18.2-370; and object sexual penetration, in violation of Code § 18.2-67.2. Following trial in the Circuit Court of Halifax County ("trial court"), appellant was sentenced to twenty-nine years' imprisonment. On appeal, appellant contends that the trial court "abused its discretion by allowing into evidence testimonial statements to a medical provider which were not limited to statements of symptoms or medical history." For the following reasons, this Court affirms appellant's convictions.

         I. BACKGROUND

         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.

         The victim in this case, C.F., was four years old when appellant began dating Stacey Campos, C.F.'s mother, in 2006. From when C.F. first met appellant until after Stacey and appellant married in 2008, appellant acted as a father figure for C.F. and had authority to instruct her and discipline her for disobedience.

         In 2012, C.F. reported to Stacey that appellant had sexually abused her, but when Stacey confronted appellant, he denied it. Stacey then told C.F. that she did not believe her report, and C.F. recanted.

         One year later, C.F. again reported that appellant had sexually abused her. Stacey took C.F. to Lynchburg General Hospital on August 10, 2013, where Donna Kling, a forensic nurse examiner, examined C.F. At this point, the Department of Social Services became involved and Stacey took out a protective order against appellant. Even after these events, Stacey again told C.F. that she did not believe her, and following a heated argument, C.F. again recanted. The protective order was then dismissed at Stacey's request.

         Another incident occurred on October 6, 2014. While Stacey was at work, appellant asked C.F. to enter the bedroom and wait. Appellant entered, and pulled down C.F.'s pants and underwear as well as his own pants. Appellant's penis touched C.F.'s vagina and was "moving up and down." Appellant persisted even after C.F. told him to stop, and she felt his penis enter between her labia. When he finished, appellant instructed C.F. to go to bed.

         Stacey took C.F. to Lynchburg General Hospital on October 10, 2014, where C.F. was again examined by Kling. That evening, Stacey received two calls from appellant during which appellant told her, "I'm sorry, I'm sorry for hurting you and your daughter."

         A grand jury indicted appellant for eight sexual offenses. At trial, the Commonwealth called Kling, and appellant stipulated to Kling's certification as an expert "in child sexual assaults and forensic evaluations." During direct examination, the Commonwealth asked Kling to tell the jury about her interview with C.F., to which counsel for appellant objected on hearsay and Confrontation Clause grounds. Arguing outside the presence of the jury, counsel for appellant contended that Kling's testimony regarding C.F.'s statements constituted testimonial hearsay and violated Crawford v. Washington, 541 U.S. 36 (2003). Counsel also argued that C.F.'s hearsay statements would not fall under the medical treatment exception to the hearsay rule, Virginia Rule of Evidence 2:803(4). The trial court overruled appellant's objections, finding that Kling's statements were not testimonial and fell within the hearsay exception because Kling's goal in interviewing C.F. was to diagnose and treat C.F. Additionally, the trial court reasoned that C.F.'s motivation had not been to provide evidence for the Commonwealth.

         The Commonwealth then had Kling "quote word for word" from her notes of the October 10, 2014 interview with C.F.[1]:

I asked, "Tell me about why you came to see me today."
[C.F.] stated, "My stepdad was raping me."
I asked, "What does that mean?"
[C.F.] stated, "He was touching my private area and having sex with me."
I asked, "Tell me more about that."
[C.F.] stated, "He would make me lay on my mom's bedroom floor. He took my pants and underpants off and he put his thing on my private."
I asked, "What is his thing?"
[C.F.] stated, "His wee wee."
I asked, "Did he put it on top of your privates or inside your privates?"
[C.F.] stated, "I don't really know because I wouldn't pay attention because I wouldn't like what he was doing."
I asked, "When he put his wee wee on top of your privates, what would he do?"
[C.F.] stated, "He would move it around."
I asked, "Did anything ever come out of his wee wee?"
[C.F.] stated, "When I push him away, he would get back on me and when stuff came out, it went everywhere."
I asked, "What did the stuff look like?"
[C.F.] stated, "It was white."
I asked, "Where did it go?"
[C.F.] stated, "On the floor, on my legs, and on him."
I asked, "Did anyone clean it up?"
[C.F.] stated, "He would. He would clean it off of me."
I asked, "Did that happen one time or more than one time?"
[C.F.] stated, "More than one time."
I stated, "Tell me about the first time."
[C.F.] stated, "It's been a while. He's been doing it a lot."
I asked, "When was the last time?"
[C.F.] stated, "Monday."
I asked, "What time on Monday?"
[C.F.] stated, "After my mom went to work. I went to go to bed and he grabbed my arm. He put me on the couch for a while because my nanny was there. He told me to go into my mom's bedroom and take my pants off."
I asked, "Where was nanny then?"
[C.F.] stated she went to her room. "He came back there. He took his pants off. He got on top of me. I pushed him away because something had hurt."
I asked, "Where did it hurt?"
[C.F.] stated, "In my private. I told him to stop but he said no. After he finished, he got up and went in ...

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