Dowdy v. Commonwealth of Virginia, Record No. 2509-02-3 (Va. App. 12/30/2003)
| Decision Date | 30 December 2003 |
| Docket Number | Record No. 2509-02-3. |
| Parties | MORTIE J. DOWDY v. COMMONWEALTH OF VIRGINIA. |
| Court | Virginia Court of Appeals |
Appeal from the Circuit Court of Montgomery County, Ray W. Grubbs, Judge.
Stephanie G. Cox (Marshall J. Frank, P.C., on briefs), for appellant.
Eugene Murphy, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Present: Judges Humphreys, Felton and Kelsey.
Appellant, Mortie J. Dowdy, challenges his conviction for incest (Code § 18.2-366), alleging that the evidence fails to establish that he was the victim's father. Dowdy also argues that the trial court incorrectly convicted him of rape (Code § 18.2-61), contending that the victim's testimony was inherently incredible. Finding the evidence sufficient to demonstrate appellant's guilt on both charges, we affirm.
On appeal, we review the evidence in the "light most favorable" to the Commonwealth. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003) (citation omitted). That principle 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 that may be drawn therefrom." Kelly v. Commonwealth, 41 Va. App. 250 254, 584 S.E.2d 444, 446 (2003) (en banc) (quoting Watkins v. Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998)).
On March 23, 2001, April Dowdy telephoned appellant, Mortie J. Dowdy, to ask for money "to get diapers and stuff." Appellant, who was getting ready to cook dinner at the time, told April to "just come on over and we'll have dinner." April accepted the invitation and went to appellant's house with her three-year-old son. After dinner, appellant "snapped." Wielding a "white-handled knife," he grabbed April's arm, pulled her into his bedroom, and threw her up against the wall.
Appellant held the knife to April and told her he "was going to hurt me or my son" if April did not remove her clothing. April complied. After ordering April "to lay down," appellant held her "arms with one hand," then performed vaginal and anal intercourse on her. Throughout this encounter, appellant ignored April's repeated appeals for him to "please stop." He also ignored the fact that April's "son was behind the door screaming for mommy."
Following the attack, appellant approached April and placed what "felt like a gun . . . to the back of my head." He ordered her to walk to the kitchen. There, appellant ordered April "to state that this never happened." To ensure her compliance, appellant had her "write it on the back of a Bell Atlantic paper, envelope thing," and both signed the envelope. Clarifying the subject of the agreement, appellant wrote "have sex" on the envelope. Once allowed to leave, April grabbed her son, ran to her car, and frantically drove to the home of Joanne Ford, April's sister-in-law.
When she arrived at Ford's house, April "was hanging on to the steering wheel just as hard as she could." "She was just screaming and just hanging on for dear life," Ford remembered, "just paranoid as could be." After several people finally pried April from the car, April went into the house where "she just kept crying and kept crying." April calmed down and informed Ford that appellant had raped her. Ford called the police and then took April to a local hospital.
At the hospital, Detective Brad Roop interviewed April. She told Roop she had been raped by appellant. Based on April's statement, the police searched appellant's house and located the white-handled knife and the envelope. Police then placed appellant under arrest for rape and abduction. Appellant admitted to the police "that he had had sex with April Dowdy." Based upon this evidence, the Commonwealth obtained indictments from the grand jury charging appellant with rape and incest.
At trial, April testified that appellant acknowledged her as his daughter even though she had been raised in foster care. April said she had always acknowledged appellant as her father. Without objection, April also testified that her biological mother (Barbara Jean Dowdy) identified appellant as April's father. Appellant's second wife, Rose L. Dowdy, likewise said April was appellant's daughter, though "at the time he didn't know [she] was his daughter." In addition, Joanne Ford testified that appellant was known as April's father. Finally, April testified that her birth certificate identified appellant as her father.
Appellant took the stand and denied paternity. He did admit, however, that April was born during his marriage to Barbara Jean Dowdy, April's biological mother. He also claimed that a "Judge Wilson, over here in Montgomery County" had "unlisted" appellant from April's birth certificate. Appellant, however, produced no other evidence corroborating his claim of being removed from the official birth certificate.1
After the presentation of the Commonwealth's evidence at trial, appellant moved to strike the incest charge, arguing that the evidence did not establish paternity. Overruling the motion, the trial court stated that April's assumption of appellant's surname provided prima facie evidence that, when combined with her testimony that appellant "acknowledged her as his daughter," sufficiently established the parental link. Following appellant's evidence, the trial court again overruled his motion to strike on the same grounds, adding that "the evidence shows that April Dowdy was born to the marriage of Ms. Bailey, who was then Mrs. Dowdy, and Mr. Dowdy, and having been born during the marriage, it's presumed that she is the child of Mr. Dowdy and that fact has not been rebutted by the evidence heard this morning."
The trial court also overruled appellant's motion to strike the rape charge, finding that "the credibility of the Commonwealth witnesses, particularly that of April Dowdy," presented sufficient evidence for the charge to withstand a motion to strike.
After closing arguments, the trial court found appellant guilty of both rape, in violation of Code § 18.2-61, and incest, in violation of Code § 18.2-366. The trial court sentenced appellant to 35 years and 5 years, respectively, suspending 28 years of the total sentence. He now appeals both convictions.2
When faced with a challenge to the sufficiency of the evidence, we "presume the judgment of the trial court to be correct" and reverse only if the trial court's decision is "plainly wrong or without evidence" to support it. Kelly, 41 Va. App. at 257, 584 S.E.2d at 447 (citations omitted); see also McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259, 261 (1997) (en banc). When a jury decides the case, Code § 8.01-680 requires that Pease v. Commonwealth, 39 Va. App. 342, 355, 573 S.E.2d 272, 278 (2002) (en banc), aff'd, 266 Va. 397, 588 S.E.2d 149 (2003) (per curiam). The same standard applies when a trial judge sits as the factfinder because the "judgment of a trial court sitting without a jury" is entitled to the same weight as a jury verdict. Cairns v. Commonwealth, 40 Va. App. 271, 293, 579 S.E.2d 340, 351 (2003) (citation omitted).
Put another way, a reviewing court does not "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (emphasis in original and citation omitted). It asks instead whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Kelly, 41 Va. App. at 257, 584 S.E.2d at 447 (quoting Jackson, 443 U.S. at 319 (emphasis in original and internal quotation marks omitted)). "This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Id. It also gives full play to our appellate responsibility not to "substitute our judgment for that of the trier of fact," Kelly, 41 Va. App. at 257, 583 S.E.2d at 447 (citation omitted), "even were our opinion to differ," Wactor v. Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002) (citation omitted); see also Mohajer v. Commonwealth, 40 Va. App. 312, 321, 579 S.E.2d 359, 364 (2003) (en banc); Pease, 39 Va. App. at 355, 573 S.E.2d at 278.3
Under Code § 18.2-366(B), felony incest occurs when an individual commits adultery or fornication with his or her child, grandchild, or parent. See Bridgeman v. Commonwealth, 3 Va. App. 523, 351 S.E.2d 598 (1986). Because appellant admitted having sex with April, our only inquiry is whether a rational factfinder could find that the evidence established paternity beyond a reasonable doubt.4 For the following reasons, we hold that the paternity finding rests on sufficient evidence.
Without objection, April identified appellant as her father — as did her biological mother, appellant's later wife, and April's sister-in-law. Appellant admitted that April was born during his marriage to April's biological mother, and implicitly admitted that the original birth certificate listed him as the father. (His name could not be "unlisted" without first being listed.) April too testified that appellant was identified as her father on her original birth certificate. Further, appellant and April share a common surname that they have used, without interruption during their respective lifetimes. Viewed in the light most favorable to the Commonwealth, these subsidiary facts — coupled with the reasonable inferences that flow from them — provide sufficient evidence for a rational factfinder to conclude beyond a reasonable doubt that,...
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