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Wakeman v. Commonwealth

Court of Appeals of Virginia

November 27, 2018

PATRICK JOSEPH WAKEMAN
v.
COMMONWEALTH OF VIRGINIA

          FROM THE CIRCUIT COURT OF SHENANDOAH COUNTY Dennis L. Hupp, Judge

          J. Lloyd Snook, III (Snook & Haughey, P.C., on brief), for appellant.

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

          Present: Judges Humphreys, Decker and Russell Argued at Arlington, Virginia

          OPINION

          WESLEY G. RUSSELL, JR., JUDGE

         Patrick Joseph Wakeman was convicted by a jury of rape by force or threat in violation of Code § 18.2-61.[1] On appeal, he claims the trial court erred in qualifying Nurse Raymer Balciunas as an expert in the area of sexual assault forensic examination when she did not possess a formal certification as a Sexual Assault Nurse Examiner (SANE). For the reasons that follow, we affirm the judgment of the trial court.

         BACKGROUND

         "Under well-settled principles of appellate review, we consider the evidence presented at trial in the light most favorable to the Commonwealth, the prevailing party below." Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008). So viewed, the evidence establishes that Wakeman's wife asked the victim, L.N., if she would babysit the couple's two small children on April 23, 2016. L.N. agreed to do so.

         Although L.N. was sixteen years old at the time, she did not have a driver's license, so Wakeman picked her up at about 8:30 that morning and brought L.N. to his house. After finishing breakfast with L.N. and his two children, Wakeman asked L.N. to accompany him outside while he smoked. While outside, Wakeman commented on L.N.'s physical appearance and took a photograph of her with L.N.'s phone's camera. L.N. testified at trial that they then went back into the house and that Wakeman "wanted to teach me some moves in case I was ever in a bad situation that I needed to get out of." Wakeman then went upstairs and put an obstacle in front of one of the doors so that a child could not come downstairs undetected.

         He then began instructing L.N. regarding self-defense techniques. For the first technique, he instructed L.N. to get on her hands and knees and then roll over and put her legs around his neck. L.N. complied. After that, he taught her a second move, which was similar to the first except that L.N.'s head rested on the ground and her hands were behind her back. Wakeman instructed L.N. to roll over and put a leg around his neck. While she was practicing this move for the second or third time, Wakeman put his hand underneath L.N.'s shirt but over her bra and made a comment about her breasts.

         Around that time, L.N. received a facetime message from a friend, so she called her back and texted another friend that Wakeman had just sexually assaulted her. Wakeman went outside to smoke, and, when he returned, said he wanted to teach L.N. a third move. This technique required L.N. to lie on her back with her legs over one of his shoulders. She was supposed to kick him in the chest, but instead, Wakeman pulled up her tank top and bra, exposing her breasts. He then pulled her pants down to her knees while holding her hands down behind her head. He removed his pants, spit on his hand, and rubbed his penis. He kept telling L.N. that this is what a rapist would do to her. He then placed the tip of his penis into her vagina as he continued to tell her that "the rapist is going to do this." The encounter ended when Wakeman's daughters came downstairs.

          Wakeman took the girls back upstairs. While he was upstairs, L.N. again texted her friend. She asked the friend to come get her because Wakeman had just assaulted her.

         When Wakeman came back downstairs, he told L.N. he was going to teach her a fourth maneuver. He positioned L.N. on her knees in front of the couch with her head positioned on the couch. Wakeman removed each of their pants and instructed L.N. to roll over and push him off. He then inserted his penis into her vagina and, according to L.N., "started thrusting as I was trying to roll over, he told me I had to fight harder . . . . He was using force against me." L.N. kept trying to roll over as instructed, but was unsuccessful. L.N. estimated the episode lasted five minutes. L.N. testified that Wakeman never ejaculated. When Wakeman noticed L.N. was crying, he pulled his pants up and said "oh shit . . . if you ever tell the cops that this . . . how I taught you, I could go to jail for twenty (20) years." Wakeman, as he was leaving the house, said, "I'm going to eat a bullet now." Immediately after the incident, L.N. texted her friend and informed her that Wakeman "just raped me." Finally, L.N. detailed the events in a text to a third friend because L.N. knew she eventually would be talking to the police.[2]

         L.N. went to the Winchester Medical Center and was examined by a forensic nurse, Raymer Balciunas. Nurse Balciunas testified that she had been employed at Winchester Medical Center since 2010 and had obtained several degrees, including a Bachelor's Degree in History and Sociology, a Master's Degree in Sociology, and a Bachelor's Degree in Science and Nursing. She had been employed as an emergency room nurse her entire career and indicated that her specialty was in trauma emergency service. She was certified in Emergency Nursing, and, since 2014, had been with the forensic nursing program at the hospital.[3] That program is designed to deal with adults and adolescents who eventually may have contact with law enforcement regarding the treatment they receive at the hospital.

         As part of her participation in the program, Balciunas completed significant training, including forty hours regarding adult services and forty hours for adolescent and pediatric services. She completed the training required to be a SANE in 2014, but never obtained the actual certification. Upon questioning by the trial court, Balciunas testified that she had been performing sexual assault examinations on her own since 2014 and had performed them under the supervision of her director in 2013. The Commonwealth offered her as an expert in "sexual assault forensic examination." ...


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