Herbert v. Commonwealth
| Decision Date | 11 April 2023 |
| Docket Number | 0329-22-4 |
| Parties | LEVYN HERBERT ANDRADE, A/K/A LEVYN ANDRADE, A/K/A LEVYN H. ANDRADE, A/K/A LEVYN HERBERTH ANDRADE CRUZ v. COMMONWEALTH OF VIRGINIA |
| Court | Virginia Court of Appeals |
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY STEPHEN E. SINCAVAGE JUDGE
Tabatha N. Blake, Senior Trial Attorney (Office of the Public Defender, on briefs), for appellant.
Lindsay M. Brooker, Assistant Attorney General (Jason S Miyares, Attorney General, on brief), for appellee.
Present: Judges Malveaux, Fulton and White Argued by videoconference
Following a jury trial, Levyn Andrade was convicted in the Loudoun County Circuit Court of rape, abduction, unlawful wounding, and simple assault and battery, in violation of Code §§ 18.2-61, 18.2-47, 18.2-51, and 18.2-57, respectively.[1] Andrade asserts that the trial court abused its discretion in allowing the Commonwealth to introduce prior bad acts evidence. He also argues that the evidence was insufficient to support his convictions for rape and abduction.[2] For the following reasons, we affirm the trial court's judgment.
C.A. married Andrade in February 2019, and their daughter was born in February 2020. C.A. also had two children from a prior relationship, A.A. and D.A. Andrade had three children from a prior marriage, L.A., F.A., and M.A. In October 2020, the couple lived together in an apartment in Ashburn, Virginia, with A.A., D.A., and their infant daughter. On October 3, 2020, C.A. and Andrade took all six children to a birthday party at the home of Andrade's brother, Ricardo. C.A. drank half of a Smirnoff seltzer around 11:00 p.m. and then two shots of tequila between 1:00 and 2:00 a.m. Andrade drank ten beers before 10:00 p.m. and then continued to drink beer throughout the night. He also consumed several shots of alcohol. Around 4:00 a.m., C.A. was outside talking to a friend, when Andrade, looking "very upset," indicated that he wanted to leave. C.A. continued her conversation with her friend, and Andrade opened the sliding glass door and told C.A. "when I say we go, we gotta go." C.A. asked Andrade to let her finish her conversation, but he replied, "no" and told her to get up. C.A. told him to stop speaking to her in that manner and stated that he needed to respect her. Still very upset, Andrade threw a baby blanket at C.A. C.A. began crying, and her friend told her to call if she needed anything.
C.A. gathered the children, and they left the party. C.A. drove, and Andrade sat in the passenger seat holding their infant daughter on his lap. The other five children sat in the back seat. C.A. first drove L.A. and F.A. to their mother's house and then drove home. It was a quiet ride, and there was no interaction between C.A. and Andrade. At some point on the drive home, C.A. realized she did not know where her phone was. Once inside their apartment, C.A. put the older children to sleep and then entered the bedroom she shared with Andrade. Andrade closed and locked the door and instructed C.A. to put their infant daughter to sleep. C.A. laid on the bed and breast fed the baby until the baby fell asleep. When C.A. sat up on the bed, Andrade punched her in the face. C.A. fell back, and Andrade continued to strike her, hitting her very hard in her left eye. C.A. could not see anything as Andrade held her down by her neck. C.A. pushed Andrade off with her feet and dropped to the ground. Andrade repeatedly hit and punched C.A. about her head, face, shoulder, and her arms, all the while yelling that she was "never going to disrespect [him] again" and insisting that she was "going to learn [her] lesson." C.A. begged Andrade to stop. Their infant daughter awoke and began crying like she had "never cried before." Andrade allowed C.A. to put the baby back to sleep, but said she knew what she would have to do afterwards. C.A. knew that meant she would have to do "whatever he wanted sexually." C.A. responded, "I will do whatever you ask me to do."
At that point, A.A. having heard the altercation, knocked on the bedroom door and asked to say goodnight to C.A. She wanted to make sure C.A. was "okay." Andrade turned off the light so the child could not see C.A.'s face and then unlocked the door. A.A. approached C.A. in the dark and said goodnight to her mother. C.A. told A.A. that she was fine and then whispered for A.A. to call 911. After A.A. left the bedroom, Andrade shut and locked the door again, got on the bed, and told C.A. to get on top of him. C.A. did not feel that she could decline having intercourse with Andrade because he said he would continue to hit her if she did not do what he asked. At that moment, she feared for her life and was not willing to put her children at risk. C.A. was crying and in a tremendous amount of pain when she got on top of Andrade. Andrade grabbed C.A. and inserted his penis in her vagina, while saying
Andrade told C.A., "if you don't do it right this is the last time you're going to do it." C.A. feared he was going to kill her. Andrade ordered C.A. to put his penis in her anus. When she objected, he lifted his chest in a threatening manner and simulated hitting her with his fist. C.A. pretended to engage in anal sex with Andrade and returned his penis to her vagina. Afterwards, Andrade allowed C.A. to go to the bathroom. When she returned from the bathroom, Andrade was asleep. C.A. "crawled to the ground, grabbed [Andrade's cell] phone, and dialed 911 and . . . went into the closet."
Over Andrade's objection, C.A. testified that she was afraid during this incident because Andrade physically abused her "multiple times during [their] marriage," resulting in past injuries. C.A. also testified that she was "terrified" of Andrade and feared he might try to kill her. The trial court limited C.A.'s testimony to prior physical, rather than sexual, abuse and instructed the jury that it could consider the testimony only "as evidence of the basis for [C.A.'s] decisions and actions in connection with the alleged crimes for which [Andrade] is on trial."
Loudoun County Emergency Communications Dispatcher Claudia Torres answered C.A.'s 911 call in the early morning hours of October 4, 2020. Torres testified that C.A. was "very scared, very shaken," and she was whispering. Torres had trouble understanding her because she was crying. The 911 call was also entered into evidence and played for the jury.
Loudoun County Sheriff's Deputy Brian Jarvis went to Andrade's apartment in response to the 911 call. Deputy Jarvis noticed that C.A.'s face was bruised and showed significant swelling. C.A. was crying and appeared to be terrified. After speaking with C.A., Deputy Jarvis entered the bedroom and awoke Andrade. Andrade smelled of alcohol, and his eyes were red. Deputy Jarvis observed "red marks and discolorations" to Andrade's hands but did not see any other injuries on Andrade's body.
Loudoun County Fire and Rescue paramedic Earl Hall went to the apartment in response to the 911 call and observed C.A. sitting on the edge of the bed holding her infant. Two additional children were "off to the side crying." C.A. appeared visibly upset, but she was conscious, alert, and oriented. Hall instantly noticed injuries to C.A.'s head and face. Her right eye was very bruised and swollen, and there was a contusion above her left eyebrow. Hall did not see any indication that C.A. was intoxicated. While transporting C.A. to the hospital, Hall noticed more marks appearing on C.A.'s neck and above her right eyebrow.
Loudoun County Sheriff's Deputy Joshua Schleffer assisted Deputy Jarvis in waking Andrade and finding clothes for him to wear. Deputy Schleffer noticed swelling on Andrade's knuckles and redness on his hands. He also saw a cut on Andrade's lip.
Sheriff's Deputy Samuel Staley photographed Andrade at the Loudoun County Adult Detention Center; he then went to the hospital to photograph C.A.'s injuries. The photographs were admitted into evidence at trial. Deputy Staley did not observe any additional injuries on Andrade other than the cut on his knuckle.
Sheriff's Deputy Phi Pham also went to the apartment in response to the 911 dispatch and spoke to Andrade. Andrade told Deputy Pham that he did not know what had occurred and stated that he went straight to sleep when he returned from Ricardo's party. Andrade denied that C.A.'s face was bruised at any time that evening but acknowledged that she had "redness" on the side of her face and forehead. Andrade said he consumed two to three drinks at the party, but then changed his answer and stated that he had only one drink. Deputy Pham noticed that Andrade's eyes were "bloodshot red" and there was an odor of alcohol emanating from his body. Andrade claimed that C.A. was the aggressor and that she abused him. Upon Deputy Pham's inquiry, Andrade stated that, although C.A. was mad at him, she still "absolutely" wanted to have sex with him. When Deputy Pham clarified whether C.A. had been aggressive with Andrade that night, Andrade said "not tonight." Deputy Pham did not notice any wounds, marks, or other injuries on Andrade. Deputy Pham also did not notice any indication that C.A. was intoxicated.
At the Inova Fairfax Hospital emergency room, Sexual Assault Nurse Examiner Ashleigh Daniel performed a medical forensic examination on C.A. Daniel noted several injuries on C.A including bruising and petechiae (broken blood vessels) in the area around C.A.'s left temple, hairline, the left side of her face, and her neck. Daniel also noticed bruising and petechiae around C.A.'s ears, which struck her as unusual because ...
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