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Church v. Commonwealth

Court of Appeals of Virginia

November 12, 2019

CHARLES ERSKINE CHURCH
v.
COMMONWEALTH OF VIRGINIA

          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Walter W. Stout, III, Judge Designate

          Lauren Whitley, Deputy Public Defender, for appellant.

          A. 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 Richmond, Virginia

          OPINION

          MARLA GRAFF DECKER, CHIEF JUDGE

         Charles 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).[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.

         I. BACKGROUND[2]

         The appellant was tried by a jury and convicted for sexually abusing his daughter (the victim).[3]

         On the 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.

         On 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.

         After 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.

         The 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.

         The 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.[4]At the time of the incident, the victim wore child's size eight underwear, and her sister wore a child's size four.

         At the 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 mixture.[5]

         A 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 laundry.

          The 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.

         According 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.

         The 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.

         The 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.

         During 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.

         On the 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.

         The 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 ...


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