Bista v. Commonwealth

Decision Date06 December 2022
Docket NumberRecord No. 0904-21-4
Citation76 Va.App. 184,880 S.E.2d 828
Parties Dilliraj BISTA v. COMMONWEALTH of Virginia
CourtVirginia Court of Appeals

Dawn M. Butorac, Public Defender, for appellant.

Katherine Quinlan Adelfio, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Present: Judges O'Brien, Lorish and Senior Judge Annunziata

OPINION BY JUDGE ROSEMARIE ANNUNZIATA

A jury convicted Dilliraj Bista of sodomy of a child under the age of thirteen years by a person eighteen years of age or older and aggravated sexual battery, in violation of Code §§ 18.2-67.1 and 18.2-67.3, respectively.1 Consistent with the jury's verdict, the trial court sentenced Bista to life plus twenty years’ incarceration. Bista challenges his convictions on several grounds. First, Bista argues that the trial court erroneously admitted the child's out-of-court statements under Code § 19.2-268.3. As a matter of first impression, we must decide whether that statute conditions admissibility on the declarant's competency to testify. We hold that it does not. Bista also argues that the trial court's admission of a video depicting the child's forensic interview violated his right to confrontation under the Sixth Amendment of the United States Constitution. Next, Bista contends that the trial court erroneously rejected two proffered jury instructions. Finally, he argues that the trial court improperly limited the scope of his closing argument. For the following reasons, we affirm the trial court's judgment.

BACKGROUND

On appeal, we review the evidence "in the ‘light most favorable’ to the Commonwealth, the prevailing party in the trial court." Hammer v. Commonwealth , 74 Va. App. 225, 231, 867 S.E.2d 505 (2022) (quoting Commonwealth v. Cady , 300 Va. 325, 329, 863 S.E.2d 858 (2021) ). Doing so requires us to "discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom." Cady , 300 Va. at 329, 863 S.E.2d 858 (quoting Commonwealth v. Perkins , 295 Va. 323, 324, 812 S.E.2d 212 (2018) ).

In August 2018, R.P. was eleven years old and living with her younger brother and parents, Hem and Rita. R.P. suffers from autism spectrum disorder, which impairs her socialization, memory, and ability to learn and communicate. Hem and Rita had immigrated from Nepal and formed a close relationship with Bista and his family, who were also Nepali. R.P. referred to Bista as "grandpa" and communicated with him through gestures and basic English and Nepali phrases.

On August 17, 2018, Bista had been staying at R.P.’s home for several days while his wife visited Nepal. That evening, Hem prepared dinner in the kitchen with his parents while Bista smoked a cigarette outside on the "back deck." R.P. and her brother were alone in a living room on the opposite side of the house. Around 8:30 p.m., Rita went upstairs to shower and when she returned downstairs at 8:45 p.m., she found Bista kneeling behind R.P. on the living room floor. R.P. was on her hands and knees in a "dog position" with her underwear and shorts pulled down. Rita screamed and took R.P. upstairs to question her with Hem. R.P. told her parents that Bista had "licked [her] on the front and back" and "put it on the front and tried to put it on the back." Rita removed R.P.’s clothing and placed it inside a plastic grocery bag, tying the bag closed. Bista initially denied any wrongdoing, assuring Rita and Hem that he had been "playing" with R.P., but he later admitted to them that he had "licked [her] private part." R.P.’s parents did not report the incident to police, fearing that disclosure would harm their family's prestige in the Nepali community. Bista moved to Hawaii the following week.

On January 29, 2019, R.P. told her special education teacher, Brian Rothe, that "the previous summer in August" she had been "raped by a family friend" who "looked like a grandpa." She told Rothe that the man had "gone back to Nepal" after her mother caught him "touching [her] inappropriately" and had "kicked him out of the house." Rothe notified R.P.’s parents, and Child Protective Services (CPS) was notified of the allegations. The next day, CPS contacted Fairfax County Detective Thomas Gadell, Jr., to investigate.

At Gadell's request, Maria Bonilla conducted a video-recorded forensic interview of R.P. at SafeSpot Children's Advocacy Center.2 Describing the incident, R.P. told Bonilla that "Grandpa Bista" and his family had visited her home for a "dinner party." Bista found R.P. alone in the living room and forcefully kissed her by grabbing her neck. R.P. said she tried to run away but Bista pulled her shirt "nine or ten times," causing her to fall. Bista forced R.P. into a "dog" position and removed her shorts. Pointing to her groin, R.P. explained that Bista's "mouth was going crazy" as he kneeled behind her and attempted to "lick" her "private part." R.P. also said that Bista's penis "tr[ied] to go in her butt." She stated that Bista had used his "flip phone" during the assault to video record her "butt" and "private parts," but someone had since deleted the videos and the phone was "lost."

Police collected the grocery bag containing R.P.’s clothing worn during the assault. After Bista's arrest and extradition from Hawaii, Gadell interviewed him3 and obtained a buccal swab of his DNA. Police also obtained buccal swabs of R.P.’s and Hem's DNA. Subsequent DNA testing established that Bista could not be eliminated as a contributor to a DNA mixture discovered in the "interior crotch" of R.P.’s underpants.

In June 2019, a forensic nurse conducted a "wellness exam" and concluded that R.P. had "no injuries" to her vagina or anus.

Material Proceedings Below

A. Preliminary Hearing and Indictment

On September 5, 2019, R.P. testified4 at a preliminary hearing that Bista's wife drove him to her home before the incident. R.P. stated that Bista initially "just touched [her] private parts without taking [her] shorts off." Bista then removed his pants and exposed his "penis" before inserting it into R.P.’s vagina and "butt." For the next "forty minutes," Bista kept "doing these stuff over and over again," although R.P. "yelled at [Bista]" and "tried to leave the room several times."

During cross-examination, R.P. testified that Bista did not "pull [her] shirt" during the assault, but he "prevented [her] from leaving" the room by "blocking" the entrance. Bista also "left his phone in [a] bag" during the assault and contrary to earlier statements she made during the forensic interview, he did not use it to photograph or record her.5 R.P. explained that she learned the terms "penis," "vagina," and "sex" through online research as a nine-year-old, and since she was "8 to 10 years old," R.P. had watched videos of "people having sex" on the website "Pornhub."

The district court certified the charges to the grand jury, which subsequently indicted Bista for sodomy of a child under the age of thirteen years and aggravated sexual battery. The Commonwealth also directly indicted Bista for rape.6

B. Hearing on Motion to Admit Statements under Code § 19.2-268.3

Before trial, the Commonwealth moved the trial court to admit R.P.’s out-of-court disclosures to her parents, teacher, and Bonilla under Code § 19.2-268.3, which makes admissible certain hearsay statements of child victims of specified crimes. Following briefing by counsel, the trial court conducted an evidentiary hearing at which Rita testified that she saw Bista kneeling "very close" behind R.P., whose shorts were "below her knees." When questioned, R.P. told Rita that Bista "tried to put his organ inside [her] front and back" and "licked" her "private parts." Rita denied that R.P. had ever watched internet pornography and maintained that R.P. "never lies." She explained that R.P. was "mildly autistic" and had the "mental" age of a "four to five-year-old child."

Hem testified that immediately after the incident, R.P. said that Bista had "put his private part into [her] private part" and "licked it." Hem also denied that R.P. had ever lied, explaining that she suffered from cognitive deficits and could not distinguish "what is bad and what is good" because of her autism.

Rothe could not "remember exactly" whether R.P. had reported that her attacker had "attempted" or "actually accomplished" the alleged acts of sexual abuse. He also did not recall R.P. "saying anything about being licked." R.P. required an IEP7 at school because of her autism. In Rothe's experience, she engaged in "attention-seeking behavior" at school—including "randomly" telling stories and striking "promiscuous poses"—but, to his knowledge, she had never fabricated an allegation of sexual abuse.

Bonilla was no longer employed at SafeSpot, but Michelle Thames, SafeSpot's executive director, authenticated the video from R.P.’s forensic interview; Thames also confirmed that Bonilla had followed "appropriate interview techniques."8

The trial court considered the factors enumerated in Code § 19.2-268.3 and found that, as the victim, R.P. had "personal knowledge of the event." In addition, "extrinsic evidence" established Bista's "opportunity to commit the act," including Rita's personal observations of "physical interactions" that were "consistent with [R.P.]’s statement." The trial court found no motive for R.P. or her parents to fabricate the accusations, and it found Rothe, Rita, and Hem's testimony credible. Finally, the trial court found that R.P. provided "a very detailed recollection of the event," despite "some inconsistencies" and being "mildly autistic." Thus, the trial court concluded that "sufficient indicia of reliability" rendered her statements "inherently trustworthy" and therefore admissible under Code § 19.2-268.3.9

C. Hearing on Victim's Competency and Bista's Motion to Exclude Forensic Interview Video

Bista then moved to exclude the video...

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