THE CIRCUIT COURT OF ROCKINGHAM COUNTY Thomas J. Wilson, IV,
Kirk Nagy (The Law Office of Louis K. Nagy, PLC, on briefs),
Murphy, Senior Assistant Attorney General (Mark R. Herring,
Attorney General; Rachel L. Yates, Assistant Attorney
General, on brief), for appellee.
Present: Judges O'Brien, AtLee and Athey Argued at
GRACE O'BRIEN JUDGE.
convicted Carlos Artur Alvarez Saucedo
("appellant") of sodomizing a child under the age
of thirteen, in violation of Code § 18.2-67.1(A)(1). The
court imposed the jury sentence, eleven years of
incarceration, with an additional forty years suspended,
pursuant to Code § 18.2-67.1(B)(2). Appellant contends
that the court erred in denying a pretrial motion to suppress
statements he made to a detective. He also asserts that the
court erred by admitting the complaining witness' prior
statements at trial and denying his motion to set aside the
verdict based on insufficient evidence. For the following
reasons, we affirm appellant's conviction.
the complaining witness, is appellant's stepdaughter. In
2013, when G.G. was in first grade, she told a school
counselor that appellant had touched her vagina. However,
when a social worker and police officer interviewed the
child, she recanted her statement.
2017, when she was ten years old, G.G. attended a
presentation at her elementary school about inappropriate
touching. Afterwards, G.G. told Carlita Sheldon, a Child
Protective Services employee, that when she was four or five
years old, appellant laid on the bed where she was sleeping
and licked her vagina. G.G. also said that appellant was
drunk at the time. Sheldon obtained permission from
G.G.'s mother to take G.G to the Collins Child Advocacy
Center for a forensic interview. Rhoda Miller, a Collins
Center employee, conducted the interview, which was
April 19, 2017, Detective Mike Spiggle of the Harrisonburg
Police Department interviewed appellant at the police
station. Appellant was not in custody. Carlita Sheldon, who
is fluent in Spanish, interpreted for appellant during the
interview. Appellant denied the allegations and left.
agreed to return to the station on April 24, 2017 for a
polygraph examination. Upon appellant's arrival,
Detective Spiggle and another interpreter, Ramon Ochoa,
escorted appellant to the polygraph suite, demonstrated that
the door was unlocked, and assured appellant that he was free
to leave at any time. Appellant was not handcuffed, and he
sat in the chair closest to the door. Detective Spiggle and
Ochoa were the only other people in the room.
Spiggle explained that he was investigating appellant for
sodomizing a child. He remarked that if appellant touched
G.G.'s vagina with his tongue, he "needed to get up
and walk out of the room now." Appellant continued to
speak with the detective and eventually stated that he
"had been drinking that night and he mistook or . . .
confused [G.G.] for his wife." When asked if he recalled
touching G.G.'s vagina with his tongue, appellant
replied, "[P]robably, yes," and added,
"I'm sure myself I will never do that again."
Detective Spiggle left the room, and appellant wrote a
reviewing the statement with a prosecutor, Detective Spiggle
requested more details from appellant. Appellant wrote a
second statement in which he admitted that he touched G.G.
with his hands and "maybe . . . touch[ed] her with [his]
tongue." Detective Spiggle placed appellant under arrest
at that time.
to trial, appellant moved to suppress his oral and written
statements to Detective Spiggle. Although appellant
acknowledged that he was not in custody during his initial
interview on April 19, 2017, he contended that on April 24,
2017, when Detective Spiggle told him that if he touched G.G.
with his tongue he should "get up and walk out,"
the interview became custodial and the police were required
to advise him of his rights under Miranda v.
Arizona, 384 U.S. 436 (1966). The court viewed the
videotaped interview from April 24, 2017, and observed that
"during the entire interview . . . [appellant] appeared
to be sitting in a relaxed manner." It found, after
considering all the circumstances, that appellant was not in
custody and denied the suppression motion.
to Code § 19.2-268.3, the Commonwealth filed a pretrial
motion to admit three of G.G.'s prior statements: the
2013 report to a school counselor, the 2017 disclosure to
Carlita Sheldon, and the 2017 forensic interview with Rhoda
Miller at the Collins Center. Appellant agreed that the
statements could be admissible but argued that G.G. would
have to testify first. The court found that the
"totality of the circumstances surrounding each of the
three statements provided sufficient indicia of reliability
so as to render them inherently trustworthy" and
therefore they were admissible under the hearsay exception
contained in Code § 19.2-268.3.
trial, G.G. testified that when she was five years old, she
woke one night to find appellant lying on her bed. She stated
that appellant pulled her pants down and touched her vagina
with his tongue and hands for several seconds. On
cross-examination, G.G. acknowledged that she did not know
the meaning of "labia majora" or "vulva,"
but she explained that when she stated appellant had put his
tongue on her vagina, she meant her "private area."
testified that she initially reported the abuse when she was
in first grade and told another adult when she was in fourth
grade. She stated that she did not remember the Collins
Center interview but recalled "going to a place where
[she] sat in a blue chair to talk with a video." Miller
identified the videotaped interview at trial, and over
objection, the Commonwealth played the video for the jury. In
the interview, G.G. described the offense, gestured to a
picture of a vagina on the table, and said that during the