Bista v. Commonwealth

• Docket Number: Record No. 0904-21-4
• Decision Date: 12 September 2023
• Citation: 891 S.E.2d 711,78 Va. App. 391
• Parties: Dilliraj BISTA v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

78 Va.App. 391

891 S.E.2d 711

Dilliraj BISTA v. COMMONWEALTH of Virginia

Record No. 0904-21-4

Court of Appeals of Virginia, Richmond.

September 12, 2023

Dawn M. Butorac, Public Defender, for appellant.

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

Present: Chief Judge Decker, Judges Humphreys, Beales, Huff, O'Brien, AtLee, Malveaux, Athey, Fulton, Ortiz, Causey, Friedman, Chaney, Raphael, Lorish, Callins and White

OPINION BY JUDGE MARY GRACE O'BRIEN

A jury convicted Dilliraj Bista of anal sodomy of a child under the age of 13, in violation of Code§ 18.2-67.1, ¹ and aggravated sexual battery, in violation of Code§ 18.2-67.3.²On appeal, a three-judge panel of this Court heard Bista's challenges to the admission of the child's out-of-court statements under Code§ 19.2-268.3 and to the admission of a video depicting the child's forensic interview, which he argued violated his right to confrontation under the Sixth Amendment of the United States Constitution.³The panel affirmed the convictions with one judge dissenting as to the Confrontation Clause issue.Bista v. Commonwealth , 76 Va. App. 184, 880 S.E.2d 828(2022).This Court granted Bista's petition for rehearing en banc and agreed to rehear the following assignment of error:

The trial court erred by allowing the out[-]of[-]court statements of [R.P.]⁴ to be admitted as evidence pursuant to ... Code§ 19.2-268.3 after she had been declared incompetent to testify at trial.Even if her out[-]of[-]court statements satisfied the requirements of ... Code§ 19.2-268.3, the trial court further erred in admitting her statement to the forensic interviewer as it violated ... Bista's confrontation rights under the [Sixth]Amendment.

BACKGROUND

I.Material Facts

In August 2018, R.P. was 11 years old and living with her younger brother and parents, Hem and Rita.R.P. has autism spectrum disorder, which impairs her socialization and ability to learn and communicate.R.P.’s family 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 while his wife and son were in Nepal.That evening, Hem prepared dinner in the kitchen with his own parents nearby, while Bista was outside on the back deck.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 shorts and underpants 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 put R.P.’s clothing in a plastic grocery bag and tied it shut.Bista initially denied any wrongdoing, assuring Rita and Hem that he had been "playing" with the child, 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 the information would harm their family's status 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 "kicked him out of the house."Rothe notified school administrators, who alerted Child Protective Services (CPS) about the allegations.The next day, CPS contacted Fairfax County DetectiveThomas Gadell, Jr., to investigate.

At Detective Gadell's request, social worker Maria Bonilla conducted a video-recorded forensic interview of R.P. at SafeSpot Children's Advocacy Center on February 27, 2019.⁵Michele Thames, the executive director of SafeSpot, testified at a pretrial hearing that a "forensic interview" is "conducted in [a] neutral setting by a trained professional forensic interviewer" when "a child makes an allegation of child abuse."SafeSpot accepts "referrals" to conduct the interviews exclusively from "law enforcement and [CPS]."Thames stated that the techniques used in a forensic interview are "evidence-based" with questions that are "narrative and non-leading as best [as] can be."She explained that "[w]hen you are talking to a child you want the child to share information that they have.You don't want to ask them questions telling them what the answer is or may be."

The interview lasted one hour and ten minutes.After engaging in small talk with Bonilla for approximately 25 minutes, R.P. described the assault.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," but she later stated that he actually had anally sodomized her.In sum, 2 minutes and 34 seconds of the interview were spent discussing Bista's anal penetration of R.P.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, Detective Gadell obtained a buccal swab of his DNA.Police also obtained buccal swabs of DNA from R.P. and her father Hem.Subsequent testing established that Bista's DNA was in the "interior crotch" of R.P.’s underpants.In June 2019, a forensic nurse conducted a sexual assault examination and concluded that R.P. had "no injuries" to her vagina or anus.

II.Material Proceedings Below

A.Preliminary Hearing and Indictment

A preliminary hearing occurred on September 5, 2019 in the Fairfax County Juvenile and Domestic Relations District Court.The Commonwealth had provided Bista a copy of R.P.’s forensic interview video on August 15, 2019, three weeks earlier.

At the hearing, R.P. testified ⁶ that Bista's wife drove him to R.P.’s 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 "right into [her] butt."For the next "forty minutes," Bista kept "doing th[is] stuff over and over again," although R.P. "yelled at [Bista]" and "tried to leave the room several times."

Bista cross-examined R.P. about statements she made during the forensic interview.Some of these statements were not raised during her direct examination, and others contradicted her testimony.The Commonwealth did not object to any of the cross-examination.For example, at the preliminary hearing, R.P. testified that Bista did not "pull [her] shirt" during the assault, as she had related in the forensic interview, but he"prevented [her] from leaving" the room by "blocking" the entrance.She also testified that Bista "left his phone in [a] bag" during the assault, and—again, contrary to earlier statements she made during the forensic interview—he did not use it to photograph or record her.R.P. explained that she learned the terms "penis,""vagina," and "sex" through online research as a 9-year-old and, from the time she was "8 to 10 years old,"she had watched videos of "people having sex" on the website "Pornhub."

In the forensic interview, R.P. described the anal penetration as "so uncomfortable" and made her feel like "she was going to throw up."During the preliminary hearing, R.P. also testified repeatedly on both direct and cross-examination about Bista's anal penetration.On direct examination, she stated, "he put it ... into my butt" when she was questioned about what Bista did with his penis.On cross-examination, R.P. expanded on this testimony, referring again to Bista putting his penis "in my butt" and explaining that "first, he put it in my vagina and then he put it into my butt."She also stated that Bista had his penis "in [her] butt" longer than in her vagina.

The JDR court certified the charges to the grand jury, which subsequently indicted Bista for sodomy of a child under the age of 13 and aggravated sexual battery.The Commonwealth also directly indicted Bista for rape.

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

Before trial, the Commonwealth moved to admit R.P.’s out-of-court statements to her parents, teacher Brian Rothe, and forensic interviewer Maria Bonilla under Code§ 19.2-268.3, which makes admissible certain hearsay statements of child victims of specified crimes.At an evidentiary hearing, 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 "took his private part in [her] front and back both sides" and "entered it."R.P. also said 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."Rita described R.P. as "mildly autistic" with a "mental and social" 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...