Allen v. Commonwealth

Citation287 Va. 68,752 S.E.2d 856
Decision Date10 January 2014
Docket NumberRecord No. 130304.
CourtSupreme Court of Virginia
PartiesRichard Warren ALLEN v. COMMONWEALTH of Virginia.


Aubrey Jones Rosser, Jr., Altavista, for appellant.

Virginia B. Theisen, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: All the Justices.

Opinion by Justice LEROY F. MILLETTE, JR.

In this appeal we consider whether the Court of Appeals of Virginia erred in affirming the circuit court's finding that the Commonwealth presented sufficient evidence to slightly corroborate the corpus delicti of aggravated sexual battery.

I. Facts and Proceedings

Richard Warren Allen confessed to his daughter to having engaged in inappropriate sexual behavior with his grandson, who was four years old at the time. The following day, Allen, on his own initiative, went to the City of Lynchburg police station and voluntarily repeated his confession to Officer Timothy L. Dooley and Detective Kevin T. Poindexter. The substance of Allen's confession is as follows.

First, Allen confessed to touching the clothing covering his grandson's genital area while his grandson was sleeping. This was done only while his grandson was sleeping, and his grandson was wearing shorts or pants during every one of these events. Also while his grandson was sleeping, Allen would rub his grandson's feet and masturbate.

Second, Allen confessed to wrestling with his grandson on Allen's bed when they were alone. During these wrestling events, his grandson would “brush up against [Allen's] penis.” This aroused Allen, causing him to get an erection. Every time Allen got an erection, he would allow his grandson to use his hands and feet to touch the clothing covering Allen's penis while Allen was still in underwear or shorts.

Based on this confession, a grand jury returned a true bill for aggravated sexual battery.1 Allen pled not guilty to the indictment, waived a jury trial, and did not testify. After the Commonwealth presented its evidence, Allen made a motion to strike which was overruled, and the circuit court found Allen guilty of aggravated sexual battery. Allen filed a motion to reconsider, arguing that the Commonwealth failed to prove the corpus delicti of aggravated sexual battery by failing to sufficiently corroborate Allen's confession, thus failing to establish Allen's guilt beyond a reasonable doubt. The circuit court denied Allen's motion for reconsideration and sentenced Allen to incarceration for seven years and six months, with seven years suspended upon good behavior and intensive supervised probation.

Allen timely appealed to the Court of Appeals. A single judge of the Court of Appeals, by a per curiam order, denied Allen's appeal on the basis that the circuit court did not err in holding that (1) sufficient evidence existed for the Commonwealth to prove the corpus delicti of aggravated sexual battery and (2) sufficient evidence existed to convict Allen for the crime of aggravated sexual battery. Allen v. Commonwealth, Record No. 0924–12–3 (Nov. 28, 2012). Upon Allen's demand for panel review pursuant to Rule 5A:15A(a), a three judge panel of the Court of Appeals entered an order denying Allen's appeal for the reasons stated in the per curiam order. Allen v. Commonwealth, Record No. 0924–12–3 (Jan. 17, 2013).

Allen timely filed a petition for appeal with this Court. This appeal presents two assignments of error:

1. The Court of Appeals was in error by failing to grant the Petition for a Writ of Error of the Appellant based on the failure of the Commonwealth to prove a corpus delicti, ... based upon the lack of evidence other than the Appellant's testimony.

2. The Court of Appeals failed to grant a Writ of Error to the Appellant on the basis of the sufficiency of the evidence, ... based upon the lack of evidence other than the Appellant's testimony.

II. Discussion

A. Standard of Review

“When [reviewing a defendant's] challenge to the sufficiency of the evidence to sustain a conviction, this Court reviews the evidence in the light most favorable to [the Commonwealth, as] the prevailing party at trial[,] and consider[s] all inferences fairly deducible from that evidence.” Crawford v. Commonwealth, 281 Va. 84, 111, 704 S.E.2d 107, 123 (2011) (internal quotation marks omitted). The lower court will be reversed only if that court's “judgment is plainly wrong or without evidence to support it.” Id. at 112, 704 S.E.2d at 123 (internal quotation marks omitted).

B. The Corpus Delicti Rule

“In every criminal prosecution the Commonwealth must prove the corpus delicti: “the fact that the crime charged has been actually perpetrated.” Maughs v. City of Charlottesville, 181 Va. 117, 120, 23 S.E.2d 784, 786 (1943) (internal quotation marks omitted). This general requirement of proof, however, is different from the corpus delicti rule. See Black's Law Dictionary 395 (9th ed.2009). The corpus delicti rule requires the Commonwealth to introduce evidence independent of an extrajudicial confession to prove that the confessed crime actually occurred-that is, to prove the corpus delicti. Moore v. Commonwealth, 132 Va. 741, 745, 111 S.E. 128, 129 (1922).

1. The History of the Corpus Delicti Rule

The origin of the corpus delicti rule can be traced back at least as far as seventeenth century England. In 1660, John Perry was subjected to continuous and repeated questioning as to the disappearance of his master, William Harrison. After initially denying all wrongdoing, Perry finally confessed that he, his mother, and his brother had together robbed and murdered Harrison. Although a body was never found, and Perry's mother and brother denied all wrongdoing, all three suspects were convicted and executed on the strength of Perry's confession. Several years later, however, Harrison returned home, claiming to have been kidnapped and sold into slavery in Turkey. In short, Perry had admitted to a falsehood resulting in the execution of himself, his mother, and his brother. See Perry's Case (1660), 14 Howell St. Tr. 1312, 1312–24 (Eng.).2

The injustice of Perry's Case and similar cases triggered the creation of the corpus delicti rule, although the corpus delicti rule is not uniformly applied as part of the English common law. Opper v. United States, 348 U.S. 84, 90 & n. 5, 75 S.Ct. 158, 99 L.Ed. 101 (1954) ([English] courts have been hesitant to lay down a rule that an uncorroborated extrajudicial confession may not send an accused to prison or to death.”); 7 John H. Wigmore, Evidence in Trials at Common Law § 2070, at 508–10 (James H. Chadbourn ed., 1978).

In the United States, the corpus delicti rule took root after the Boorn trial in Vermont, which replicated the false confession scenario of Perry's Case, was widely publicized. See Trial of Stephen and Jesse Boorn, 6 Am. St. Tr. 73, 73–95 (1819).3 The Boorn trial influenced Professor Simon Greenleaf to endorse the corpus delicti rule in his evidence treatise. See 1 Simon Greenleaf, A Treatise on the Law of Evidence § 214, at 275 n. 2 (14th ed. 1883) (discussing the Boorn trial in conjunction with cautious acceptance of verbal confessions); id. § 217, at 278–79 (approving the corpus delicti rule). In turn, Professor Greenleaf's treatise has been noted as having contributed to the corpus delicti rule's near-universal adoption by the states. Wigmore, supra, § 2071, at 511.

2. The Corpus Delicti Rule and the Slight Corroboration Requirement

In Virginia, we long ago established that it is “essential” in a criminal prosecution that the Commonwealth must prove the corpus delicti, that is, “that a [crime] has been committed.” Smith v. Commonwealth, 62 Va. (21 Gratt.) 809, 813, 819 (1871); Forde v. Commonwealth, 57 Va. (16 Gratt.) 547, 550 (1864).4 From this bedrock principle, we adopted the corpus delicti rule for when the Commonwealth seeks to prove the existence of the crime by means of the accused's extrajudicial confession. See Brown v. Commonwealth, 89 Va. 379, 382, 16 S.E. 250, 251 (1892). This was a necessary precaution because “evidence as to confessions of parties is intrinsically weak and is inconclusive to establish a fact without the aid of other testimony.” Collins v. Commonwealth, 123 Va. 815, 821, 96 S.E. 826, 828 (1918).

We therefore recognized that, under the corpus delicti rule, “an accused cannot be convicted solely on his uncorroborated extrajudicial admission or confession.” Watkins v. Commonwealth, 238 Va. 341, 348, 385 S.E.2d 50, 54 (1989). Instead, slight corroboration of the confession is required to establish corpus delicti beyond a reasonable doubt.” Cherrix v. Commonwealth, 257 Va. 292, 305, 513 S.E.2d 642, 651 (1999) (emphasis added). However, such slight corroboration need not be “of all the contents of the confession, or even all the elements of the crime.” Watkins, 238 Va. at 348, 385 S.E.2d at 54.

Slight corroboration may be proved by either direct or circumstantial evidence. Id. at 349, 385 S.E.2d at 54. To this end, slight corroboration exists when physical evidence relates to the confessed illegal act. See, e.g., Magruder v. Commonwealth, 275 Va. 283, 307–09, 657 S.E.2d 113, 126 (2008); Wright v. Commonwealth, 245 Va. 177, 190, 194, 427 S.E.2d 379, 388, 390 (1993). Similarly, eyewitness testimony detailing the occurrence of the illegal act can help satisfy the slight corroboration requirement. See, e.g., Jackson v. Commonwealth, 255 Va. 625, 645–46, 499 S.E.2d 538, 551–52 (1998).

However, we must tread carefully when evaluating the probative weight of evidence that might provide slight corroboration. As we explained, “the coincidence of circumstances tending to indicate guilt, however strong and numerous they may be, avails nothing unless the corpus delicti ... be first established.” Phillips v. Commonwealth, 202 Va. 207, 211–12, 116 S.E.2d 282, 285 (1960). Thus, evidence merely placing the defendant within the geographic proximity of a crime is insufficient corroboration of a...

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    • Court of Appeals of Virginia
    • May 3, 2022
    ...confession to prove that the confessed crime actually occurred—that is, to prove the corpus delicti." Allen v. Commonwealth , 287 Va. 68, 72, 752 S.E.2d 856 (2014). Assuming without deciding that the appellant's statement that he was driving the car was a confession, we consider whether the......
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    • November 25, 2015 having contributed to the corpus delicti rule's near-universal adoption by the states. Wigmore, supra, § 2071, at 511." Allen v. Com., 287 Va. 68, 73, 752 S.E.2d 856 (2014).Considering these origins, the corpus delicti rule's purpose is commonly summarized as: (1) a protection against co......
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