THE CIRCUIT COURT OF THE CITY OF RICHMOND Walter W. Stout,
III, Judge Designate
Whitley, Deputy Public Defender, for appellant.
Anne Lloyd, Assistant Attorney General (Mark R. Herring,
Attorney General; David M. Uberman, Assistant Attorney
General, on brief), for appellee.
Present: Chief Judge Decker, Judges Petty and Huff Argued at
GRAFF DECKER, CHIEF JUDGE
Erskine Church appeals his convictions for object sexual
penetration of a child and taking indecent liberties with a
child, in violation of Code §§ 18.2-67.2(A)(1) and
18.2-370(A)(1). He argues that the trial court erred by
denying his motion to dismiss due to a failure to timely
disclose exculpatory evidence. The appellant also contends
that the trial court erroneously admitted a pair of
girl's underwear into evidence, along with related DNA
evidence and testimony. For the reasons that follow, we
affirm the convictions.
appellant was tried by a jury and convicted for sexually
abusing his daughter (the victim).
evening of Sunday, November 1, 2015, the victim's mother
took her and her younger sister to the appellant's
apartment. At the time, the victim was eleven years old, and
her sister was six. The children were scheduled to remain in
the appellant's custody until Tuesday, November 3, 2015.
Tuesday evening, the mother picked up the victim from
basketball practice. During the drive home, the victim
started crying. When her mother asked what was wrong, she
said that "he tried to stick it in her," but she
would not say more.
the victim told her mother about the abuse, the mother took
her to a hospital. Two pediatric nurse practitioners
performed a sexual assault examination on her. During the
exam, the victim identified the appellant as the person who
hurt her. There was redness to the area around the
victim's vulva and anus and bruising around the anus. She
was tearful and had pain near her rectum.
next day, an employee of the Child Advocacy Center conducted
a forensic interview of the victim. She told the interviewer
that the appellant "tried to stick his private in her
front private part" but "it didn't work."
She also said that she did not know if anything "came
out of" the appellant's "private."
Further, the victim revealed that she was forced to do
"something" with her mouth to the appellant's
body but she did not want to talk about it. During the
interview, the victim made a colorful drawing of the tank top
and shorts she had worn on the night of the attack.
police searched the appellant's apartment on November 4,
2015, the day after the victim told her mother about the
crimes. Detective Steven Jones, with the Richmond Police
Department, seized a pair of shorts with peace signs and
stars printed on them, a pink tank top, a pair of girl's
underwear, and a pair of men's underwear. The items were
found together in a pile of clothing on the floor of the
bathroom near the laundry hamper. The shorts and tank top
matched the description of the outfit that the victim said
she wore on the night of the offenses. A pair of girl's
underwear, a child's size eight, was in the laundry pile
directly beneath the shorts.At the time of the incident, the
victim wore child's size eight underwear, and her sister
wore a child's size four.
appellant's jury trial, forensic experts testified
regarding DNA evidence. Biological matter was collected from
the inside crotch area of the girl's underwear. From that
material, a DNA mixture profile was developed. The
Commonwealth's forensic experts opined that the genetic
material was from two people. Neither the appellant nor the
victim could be eliminated as the contributors to the DNA
defense expert in forensic DNA analysis and recovery
characterized the genetic material found on the girl's
underwear as trace DNA. He opined that the presence of an
allele that did not match the victim or the appellant made it
likely that a third person contributed to the mixture. He
also stated that there was "a very good chance"
that the girl's underwear could have "picked
up" DNA as a result of being deposited with other dirty
victim testified at trial. She explained that on the evening
of Monday, November 2, 2015, she and her sister were alone in
the apartment with the appellant. The two girls went to bed,
and the victim's sister fell asleep. Around 7:00 p.m.,
the appellant entered the bedroom and told the victim that
"he was going to fuck" her.
to the victim, after she and the appellant moved to his
bedroom, he removed her shorts and underwear and then his
jeans and underwear. After he put the victim down on the bed,
he put his "front private part" in her "front
private part." The victim testified that the
appellant's "private part" was on both the
outside and the inside of her "front private part"
and that it hurt. She also said that she felt pain when the
appellant touched the inside and outside of her
"butt" with his penis. She described the pressure
as feeling like she needed to "poop." According to
the victim, at some point the appellant touched his tongue
and fingers to her "front private part" and put his
mouth on her breasts. He also put her mouth on his penis and
"something came out" into her mouth.
victim explained that after these assaults she went back to
her bedroom. A short while later, the appellant returned and
said he was going to "fuck" her sister. To protect
her sister, the victim went back to the appellant's
bedroom with him, and he "did everything again." He
threatened the victim not to tell anyone what had happened or
"one of [them] would wind up dead." She knew that
the appellant always kept his gun in his room.
victim was asked about what she wore on the night of the
attack. She testified that on that night, she wore shorts
with peace signs and stars printed on them, a pink tank top,
and underwear. She could not describe her underwear.
cross-examination of the victim, defense counsel raised an
objection concerning discovery. Out of the presence of the
jury, counsel asserted that the Commonwealth had not
disclosed that the victim claimed the appellant had
threatened to abuse her sister and that this testimony was
inconsistent with the victim's statements during her
medical examination and forensic interview. The trial court
instructed the prosecutor to investigate whether the victim
had made prior inconsistent statements that had not been
revealed to the defense. The court indicated that it would
address any such matters the following day. After the
discussion, the appellant finished cross-examining the
victim, but the court did not release her as a witness.
morning of the second day of trial, the prosecutor reported
that during trial preparation the victim mentioned that on
the morning after the sexual abuse, the appellant had asked
her if he "could do it again." The prosecutor also
explained that before trial, the victim had not positively
identified the girl's underwear as her own. In response,
the trial court offered to have the victim retake the witness
stand so that the appellant could question her further, but
the appellant declined. Instead, he made a motion to dismiss
the charges based on the late disclosure of exculpatory
evidence. In the alternative, the appellant asked for a new
trial. The court denied the motions.
stepmother, who was a defense witness, testified that when
she returned home from work at about midnight on November 2,
2015, she checked on the victim and her sister. At that time,
the victim did not appear to be ...