Bishop v. Commonwealth
| Decision Date | 19 April 2022 |
| Docket Number | 0774-21-2 |
| Parties | GREGORY BISHOP v. COMMONWEALTH OF VIRGINIA |
| Court | Virginia Court of Appeals |
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY David E. Johnson Judge
James T. Maloney (James T. Maloney, PC, on brief), for appellant.
Susan Brock Wosk, Assistant Attorney General (Jason S. Miyares Attorney General, on brief), for appellee.
Present: Judges Huff, Athey and Fulton
The trial court convicted appellant of attempted forcible sodomy and aggravated sexual battery. He challenges the sufficiency of the evidence supporting his convictions. Finding no error in the trial court's decision, this Court affirms.
On appeal, this Court "consider[s] the evidence and all reasonable inferences flowing from that evidence in the light most favorable to the Commonwealth, the prevailing party at trial." Williams v. Commonwealth, 49 Va.App. 439, 442 (2007) (en banc) (quoting Jackson v. Commonwealth, 267 Va. 666, 672 (2004)). Viewed through this lens, the evidence is as follows:
In September 2020, appellant was married to Jennifer Bishop ("Jennifer"), and they had an adult daughter, S.B., who lived on her own. On September 2, 2020, S.B. arrived at her parents' home between 7:00 and 8:30 p.m. When she arrived, she and her parents watched television together in the living room. Appellant, who had to work the next day, fell asleep on the couch, but S.B. and Jennifer stayed up several hours talking and watching television. Over the course of the evening, Jennifer prepared and consumed two or three mixed drinks for herself; she stated that each drink contained one shot of vodka mixed with roughly seventeen ounces of water in a water bottle. Although Jennifer did not see S.B. drinking, she agreed that S.B. could have been, but she noted that S.B. appeared "coherent."
Jennifer testified that, per his usual practice, appellant awoke at 4:00 a.m., and at 4:30 a.m., Jennifer retired to her bedroom. When she left, appellant and S.B. were awake, and S.B. was sitting in a recliner dressed in a t-shirt and pajama pants; S.B. conversed with her mother and "seemed perfectly fine." Jennifer took "a Xanax" and laid in bed listening to Spotify to help her sleep, but after thirty to forty minutes, she turned it off. When she did, she heard her daughter "making [a] moaning noise." Jennifer looked in the living room and saw S.B. "thrashing around" in the recliner, "moaning and hollering."
Initially, Jennifer did not investigate further because she knew appellant was in the living room. But after a few minutes, S.B. continued to make "moaning" noises, prompting Jennifer to get out of bed. When Jennifer entered the living room, S.B. was no longer in the recliner. Instead, she was lying on the couch in her thong underwear with her pants off and her legs spread open. Still "moaning and screaming," S.B. appeared to be "out of it." Appellant's face was between S.B.'s legs, and he appeared to be performing oral sex on her.[1] When he made eye contact with his wife, he said nothing. From there, Jennifer retrieved her phone, ran out of the house, and called the police.
When the police arrived, Jennifer entered the house with them. She saw her daughter's pants across the room and noticed her thong underwear was "twisted" and "over to the side." Officer Sykes testified that S.B. was "extremely inebriated" and unresponsive. Sykes "tapp[ed] [S.B.'s] shoulder" and tried to wake her for two or three minutes, but when he could not, he asked Jennifer for help. When Jennifer joined Sykes, S.B. simply "made noises" before her eyes rolled back in her head. Officer Dobson stated that when they tried to wake S.B., she could not respond and merely shook her head. According to Dobson, S.B. remained in this state for nearly two hours. When she finally spoke, she was "confused" and began talking about her car at her boyfriend's house. Before the officers could collect her underwear, S.B. urinated on herself.
Sykes testified that Jennifer was "crying" and "very upset" when the police arrived at the house. Although he could smell alcohol on her, she did not appear to be intoxicated. Jennifer told Sykes that "she was in her room with her headphones on [for] . . . about 30 minutes, and she took her headphones off, and she heard [S.B.] making a screaming sound." She stated that she left her bedroom and entered the living room, and "as soon as she walked in the room, she saw that [appellant]'s head was between her daughter's legs, and he woke up and looked at her, and she stated to [Sykes] that it was, oh, I've just been cautious [sic]." Jennifer told Sykes that appellant's "face was down in his daughter's vaginal area" and S.B.'s "legs were both spread wide apart and her pajama pants were not on . . . anymore versus that they were on her before." Jennifer admitted she "could not see" whether there was penetration or "exactly" what appellant was doing, but she "did not believe" there was penetration.
Sykes noted that appellant appeared "intoxicated" and "lost." He recorded his interaction with appellant, who was visibly "sweating." Dobson concurred, recalling that appellant was "profusely sweating," shaking, and so pale that Dobson asked him to sit down to avoid fainting.
When the officers informed appellant of Jennifer's observations, he immediately became "really fidgety."
S.B.'s panties were submitted for DNA analysis, but no seminal fluid, blood, or male DNA material were recovered. Forensic scientist Caitlyn Ayoub agreed that, if the victim had urinated on the underwear, Ayoub could only obtain female DNA material from it.
S.B. recalled only a few details of the evening. She testified that around 7:00 or 8:00 p.m., she and her mother drank two mixed drinks in water bottles, with each of them mixing their respective beverages; S.B. said she added a single shot of vodka to her drinks. S.B. stated that after her mother went to bed, she and appellant talked, and she fell asleep briefly. Her next recollection was drinking shots of vodka with appellant as they watched television and played a game. S.B. testified that they each drank "[t]hree or four shots that [she could] remember." She admitted that she became "intoxicated" and moved from the recliner to the sofa while still wearing her pajamas. Her next memory was being awakened by the police, but she had no recollection of speaking with them. Although Sykes said S.B. told him that night appellant had not "do[ne] anything sexual" to her, S.B. testified that she could not recall the police questioning her about any "inappropriate touching" by appellant.
At the conclusion of the evidence, appellant argued the Commonwealth failed to prove attempted forcible sodomy because it did not establish that he intended to commit a sex act. Regarding the aggravated sexual battery charge, he asserted that the evidence did not prove "he [was] trying to arouse the victim sexually, to gratify himself or her sexually." Further, appellant stressed that Jennifer's testimony was not credible.
The trial court accepted Jennifer's testimony and found there was undisputed evidence showing appellant was on the sofa with his daughter with "his head . . . between her legs in the vaginal area" while her legs were "spread, her pants off, and her underwear skewed." Based on these circumstances, it determined that "it stretched credulity to conclude any other intent than an act to commit sodomy" or "to conclude that this was not a direct overt act taken toward th[e] commission" of sodomy. Regarding the aggravated sexual battery charge, the trial court found S.B. was mentally and physically helpless and that appellant sexually molested her by intentionally touching her "intimate parts or material directly covering such intimate parts." Accordingly, the trial court convicted appellant of attempted forcible sodomy and aggravated sexual battery.
This appeal followed.
"When reviewing the sufficiency of the evidence, '[t]he judgment of the trial court is presumed correct and will not be disturbed unless it is plainly wrong or without evidence to support it.'" McGowan v. Commonwealth, 72 Va.App. 513, 521 (2020) (alteration in original) (quoting Smith v. Commonwealth, 296 Va. 450, 460 (2018)). "In such cases, '[t]he Court does not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.'" Id. (alteration in original) (quoting Secret v. Commonwealth, 296 Va. 204, 228 (2018)). "Rather, the relevant question is whether 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Vasquez v. Commonwealth, 291 Va. 232, 248 (2016) (quoting Williams v. Commonwealth, 278 Va. 190, 193 (2009)). "If there is evidentiary support for the conviction, 'the reviewing court is not permitted to substitute its own judgment, even if its opinion might differ from the conclusions reached by the finder of fact at the trial.'" McGowan, 72 Va.App. at 521 (quoting Chavez v. Commonwealth, 69 Va.App. 149, 161 (2018)).
Appellant contends the evidence was insufficient to support his convictions because Jennifer's testimony was inherently incredible. He stresses that when Jennifer observed him and S.B. in the living room, she had had little sleep and had consumed a combination of alcohol and Xanax, "cast[ing] serious doubt on her ability to observe and accurately report" her observations. Further, appellant notes that Jennifer's testimony conflicted with S.B.'s testimony regarding the time of S.B.'s arrival because Jennifer testified that S.B. had been away for several days before September 2, 2020, whereas S.B. said she had been at home "all day" on September 1, 2020. He also...
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