Chenevert v. Commonwealth

• Decision Date: 21 April 2020
• Docket Number: Record No. 0028-19-1
• Citation: 840 S.E.2d 590,72 Va.App. 47
• Parties: Paul Anthony CHENEVERT v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

72 Va.App. 47

840 S.E.2d 590

Paul Anthony CHENEVERT

v.COMMONWEALTH of Virginia

Record No. 0028-19-1

Court of Appeals of Virginia.

APRIL 21, 2020

Erik A. Mussoni, Assistant Public Defender, for appellant.

Mason D. Williams, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Huff, O'Brien and Senior Judge Frank

OPINION BY JUDGE GLEN A. HUFF

Paul Anthony Chenevert ("appellant") appeals his convictions for aggravated sexual battery and forcible sodomy of a minor. Judgment was entered on the jury's verdict finding appellant guilty of two counts of forcible sodomy of a minor, in violation of Code § 18.2-67.1, and two counts of aggravated sexual battery, in violation of Code § 18.2-67.3. In accordance with the jury's verdict, the trial court sentenced appellant to imprisonment for two life sentences plus twenty years. Appellant claims the trial court erred by admitting both a letter the victim, T.E., wrote to her mother and drawings T.E. made during a forensic interview because the letter and drawings were inadmissible hearsay.

Although the evidence was hearsay, the trial court correctly held that the letter and drawings were admissible under the hearsay exception provided by Code § 19.2-268.3, which permits the admission of certain hearsay statements of child victims of certain crimes. Therefore, this Court affirms.

I. BACKGROUND¹

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, 642 S.E.2d 295 (2007) (en banc ) (quoting Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595 (2004) ). So viewed, the evidence is as follows:

Appellant lived with T.E. and her mother. One evening, T.E., who was eight years old at the time, gave her mother a letter that said: "Mom you now how Dady comes in my room he makes me kiss his Boo Boo. Oh and Dady told me not to tell you." During the few months before T.E. gave her mother the letter, T.E.'s mother had found appellant sleeping in T.E.'s bed numerous times. Because of the letter and T.E.'s mother's concerns at finding appellant sleeping in T.E.'s bed, T.E. underwent a forensic interview at the Children's Hospital of the King's Daughters. During the interview, T.E. frequently wrote or drew on paper in response to the interviewer's questions about appellant's conduct.

Before trial, the Commonwealth filed a motion, pursuant to Code § 19.2-268.3, to admit the letter T.E. wrote to her mother, the drawings she made during the interview, and a video of the forensic interview itself. After a hearing, the trial court granted the Commonwealth's motion.

Appellant was tried by a jury. At the trial, T.E., the forensic interviewer, and appellant, among others, testified; the video, letter, and drawings were also admitted into evidence. At the time of her trial testimony T.E. was ten years old. Appellant was convicted and sentenced to two life sentences plus twenty years' imprisonment. This appeal followed.

II. STANDARD OF REVIEW

"[T]he admissibility of evidence is within the discretion of the trial court and we will not reject the decision of the trial court unless we find an abuse of discretion." Alvarez Saucedo v. Commonwealth, 71 Va. App. 31, 44, 833 S.E.2d 900 (2019) (quoting Midkiff v. Commonwealth, 280 Va. 216, 219, 694 S.E.2d 576 (2010) ). Nevertheless, this Court reviews de novo "any issue requiring statutory interpretation." Id. at 45, 833 S.E.2d 900.

III. ANALYSIS

Appellant argues the trial court erred in admitting the drawings T.E. made during the forensic interview and the letter she wrote to her mother because they are hearsay and Code § 19.2-268.3 does not provide a hearsay exception for their admission.²

"[T]he common law generally prohibited hearsay evidence ...." Satterwhite v. Commonwealth, 56 Va. App. 557, 560, 695 S.E.2d 555 (2010). Hearsay is generally inadmissible unless it falls within an exception. Campos v. Commonwealth, 67 Va. App. 690, 704-05, 800 S.E.2d 174 (2017). " ‘The common law definition of hearsay evidence is "testimony in court ... of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter." ’ " Id. at 704, 800 S.E.2d 174 (quoting Commonwealth v. Swann, 290 Va. 194, 197, 776 S.E.2d 265 (2015) ). Code § 19.2-268.3 provides a hearsay exception allowing the admission of out-of-court statements of victims of certain crimes if that victim is under the age of thirteen at the time of the trial. If the defendant is charged with one or more of approximately thirty different listed crimes against children (including the offenses at issue here), then the statement may be admitted, despite being hearsay, if two requirements are met. First, the trial court must find—considering seven, nonexclusive, enumerated factors—that "sufficient indicia of reliability ... render [the out-of-court statement by the child] inherently trustworthy." Code § 19.2-268.3(B)(1). Second, the child must testify, or the trial court must declare the child "unavailable as a witness" and "corroborative evidence" of the "offense against [the child]" must exist. Code § 19.2-268.3(B)(2).

T.E. testified, and appellant does not challenge the trial court's finding that the letter and drawings have sufficient indicia of reliability. Rather, he argues that neither the letter nor the drawings are "statements" within the meaning of the statutory hearsay exception.³ He advances two separate arguments in support of his claim that the letter and drawings are not statements. First, he argues that the letter T.E. wrote to her mother was not a statement because the word "statement" in Code § 19.2-268.3 only includes statements made during a forensic interview. Second, he argues that the drawings made by T.E. during the forensic interview are not "statements" within the meaning of the statute because "they were neither speech nor writing." This Court disagrees with both contentions.

A. Letter

First, appellant argues that the term "statement" in Code § 19.2-268.3 should be narrowly interpreted to mean only statements made by a child victim during a forensic interview. He argues that because the statute is in derogation of the common law of evidence it should be strictly limited to the purpose for which it was enacted, which he claims was only to allow the admission of forensic interviews.

"When construing a statute in derogation of the common law, we apply several established principles. ‘[A] statutory provision will not be held to change the common law unless the legislative intent to do so is plainly manifested.’ "

Isbell v. Commercial Inv. Assocs., Inc., 273 Va. 605, 613, 644 S.E.2d 72 (2007) (quoting Herndon v. St. Mary's Hosp., Inc., 266 Va. 472, 476, 587 S.E.2d 567 (2003) ). "Statutes in derogation of the common law are to be strictly construed and not to be enlarged in their operation by construction beyond their express terms." Wade v. Commonwealth, 56 Va. App. 689, 693-94, 696 S.E.2d 258 (2010) (quoting Evans v. Evans, 280 Va. 76, 83, 695 S.E.2d 173 (2010) ). Appellant claims that these principles require this Court to conclude that "statements" within the meaning of Code § 19.2-268.3 includes only statements made during a forensic interview. But nothing in the express terms of the statute suggests that limitation.

Like the rule of lenity, the doctrine that statutes in derogation of the common law are to be narrowly construed has no force when the text of the statute plainly demonstrates the intent of the legislature. Compare Boyd v. Commonwealth, 236 Va. 346, 349, 374 S.E.2d 301 (1988) ("The common law will not be considered as altered or changed by statute unless the legislative intent is plainly manifested ." (emphasis added)), with Rose v. Commonwealth, 53 Va. App. 505, 509, 673 S.E.2d 489 (2009) ("Although [this Court] construes statutes strictly in criminal cases, [it] will not apply ‘an unreasonably restrictive interpretation of the statute’ that would subvert the legislative intent expressed therein." (quoting Ansell v. Commonwealth, 219 Va. 759, 761, 250 S.E.2d 760 (1979) )). Indeed, the bedrock principle of statutory interpretation in any context is that this Court "must give effect to the legislature's intention as expressed by the language used unless a literal interpretation of the language would result in a manifest absurdity." Smith v. Commonwealth, 66 Va. App. 382, 387, 785 S.E.2d 500 (2016) (quoting Scott v. Commonwealth, 58 Va. App. 35, 48, 707 S.E.2d 17 (2011) ). "[T]he plain, obvious, and rational meaning of a statute is always to be preferred to any curious, narrow, or strained construction." Williams v. Commonwealth, 57 Va. App. 341, 351, 702 S.E.2d 260 (2010) (quoting Turner v. Commonwealth, 226 Va. 456, 459, 309 S.E.2d 337 (1983) ).

The statute at issue, by its plain language, applies broadly to all statements made by a child victim "describing any act directed against the child relating to" the offense against the child. The only limitations on the admissibility of these statements are the ones the General Assembly explicitly included in the statute: that the trial court find the statements "inherently trustworthy," and the child testifies or corroborating evidence be admitted when the child is "unavailable." This Court declines appellant's invitation to read any other limitation into the statute.

Williams v. Commonwealth, 61 Va. App. 1, 7, 733 S.E.2d 124 (2012) ("Where bound by the plain meaning of the language used, we are not permitted ‘to add or to subtract the words used in the statute.’ This canon flows from the principle that ‘[w]e must ... assume ... the legislature chose, with care, the words it used when it enacted the relevant statute.’ " (alterations in original) (quoting Coles v. Commonwealth, 44...