Johnson v. Com., Record No. 0256-02-2.

• Citation: 580 S.E.2d 486,40 Va. App. 605
• Decision Date: 20 May 2003
• Docket Number: Record No. 0256-02-2.
• Parties: Robert C. JOHNSON, v. COMMONWEALTH of Virginia,
• Court: Virginia Court of Appeals

580 S.E.2d 486

40 Va. App. 605

Robert C. JOHNSON, v. COMMONWEALTH of Virginia,

Record No. 0256-02-2.

Court of Appeals of Virginia, Richmond.

May 20, 2003.

Todd M. Ritter, Chester, (Daniels & Morgan, on brief), for appellant.

Margaret W. Reed, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., HUMPHREYS and KELSEY, JJ.

FITZPATRICK, Chief Judge.

Robert C. Johnson (appellant) was convicted in a bench trial of two counts of rape in violation of Code § 18.2-61, two counts of forcible sodomy in violation of Code § 18.2-67.1 and two counts of indecent liberties with a child in violation of Code § 18.2-370.1. On appeal, appellant contends that: (1) Code § 18.2-67.9, which allows child victims to testify via closed circuit television, is unconstitutional, both facially and as applied to him; (2) the Commonwealth failed to carry its burden to show that the child was unable to testify in person; and (3) the evidence was insufficient to support the convictions. For the reasons that follow, we affirm.

I. Background

Under familiar principles of appellate review, we examine the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. See Juares v. Commonwealth, 26 Va.App. 154, 156, 493 S.E.2d 677, 678 (1997)

.

In February 1998, Antrina Stokes Johnson, appellant's girlfriend, gained temporary custody of her four-year-old cousin, M.¹ In May 1998, appellant, Johnson, her son L, and M moved to Virginia where appellant worked the night shift as a jail guard. Johnson worked at Wachovia Bank from 10:00 a.m. to 3:00 p.m. and was responsible for the care of both children.

In January 1999 appellant and Johnson were married in Virginia. In order to save money for a wedding ceremony in New York, Johnson worked nights at a Food Lion from June 11, 1999 to July 26, 1999. Because appellant also worked nights, Johnson arranged for a neighbor, Keshia Light, to babysit M and L when she worked at Food Lion. From approximately mid-June to mid-July 1999, M visited her grandmother in New York. M returned to Virginia in mid-July, with L, appellant's two children from a prior marriage and appellant's niece. The entire family returned to Buffalo, New York on August 20, 1999, and Johnson returned custody of M to her father at that time.²

On December 4, 2000, North Carolina Child Protective Services (CPS) took custody of M, age seven, from her father and placed her in foster care with Matty Williams. When she arrived at Williams' home, Williams gave her a bath. Consistent with her normal practice, Williams asked M to show Williams her private parts and asked M if anyone had ever touched her there. M replied, "No ma'am." A few days later, M complained to Williams of blood in her urine. After a visit to the doctor, M told Williams "whenever my cousin would go to work, ... her husband would come to my room ... he would make me put his private in my mouth." At one point, M told Williams that she thought appellant was trying to kill her. When asked why, M said "he put his privates into her, and she couldn't breathe. That's why she thought he was trying to kill her." M initially told Williams that she was five when this occurred; but later said she was six. M identified appellant as the person who committed the acts.

Dr. Sarah Sinal, a professor of pediatrics at Wake Forest University, performed a complete physical on the child. She found that the child's "hymen appeared asymmetric with significant narrowing between twelve and two o'clock." Dr. Sinal stated that "some children have narrower hymens than others. But in general there is a fair amount of symmetry." Dr. Sinal attributed the condition of M's hymen to trauma "and as it healed there was a loss of tissue." Dr. Sinal stated that M "had a physical injury ... that was compatible with having been painfully penetrated." Dr. Sinal's medical opinion was that M was "a sexually abused child."

The Commonwealth filed a pretrial motion pursuant to Code § 18.2-67.9 to allow M to testify via two-way closed circuit television. The trial court conducted two hearings on the motion and received testimony from two experts, Detective Sherry Kendall and Dr. Pamela Waaland, a licensed clinical psychologist who specialized in child and adolescent psychology and neuropsychology. Dr. Waaland testified that "it would be very traumatic" for M to testify. "In fact, [M] told [Waaland] she wouldn't be able to do it and she would run out of court and run away." (Emphasis added). M told Waaland she would feel "scared" if she had to testify in front of appellant. The experts concluded that M would likely suffer severe emotional trauma if she had to testify in front of appellant. The trial court granted the Commonwealth's motion over appellant's objection.

The trial court convicted appellant of two counts of rape, two counts of forcible sodomy and two counts of indecent liberties with a child and sentenced him to 40 years for each charge of rape and each charge of forcible sodomy, and 5 years for each count of indecent liberties, for a total of 170 years. The trial court ordered that appellant serve his sentences concurrently, and suspended 30 years and 9 months of each rape and sodomy sentence, leaving nine years, three months to be served.

II. Constitutionality of Code § 18.2-67.9

Appellant first contends that Code § 18.2-67.9 is constitutionally infirm, both facially and as applied to him, because it violates his Sixth Amendment right to confront the witnesses against him. We disagree.

A. Facial Validity

"In assessing the constitutionality of a statute, we must presume that the legislative action is valid. The burden is on the challenger to prove the alleged constitutional defect." Woolfolk v. Commonwealth, 18 Va. App. 840, 848, 447 S.E.2d 530, 534 (1994). "Every act of the legislature is presumed to be constitutional, and the Constitution is to be given a liberal construction so as to sustain the enactment in question, if practicable." Moses v. Commonwealth, 27 Va.App. 293, 298, 498 S.E.2d 451, 454 (1998).

It has long been established that every presumption is to be made in favor of an act of the legislature, and it is not to be declared unconstitutional except where it is clearly and plainly so. Courts uphold acts of the legislature when their constitutionality is debatable, and the burden is upon the assailing party to prove the claimed invalidity.

Santillo v. Commonwealth, 30 Va.App. 470, 476, 517 S.E.2d 733, 736 (1999) (citing Peery v. Virginia Board of Funeral Directors and Embalmers, 203 Va. 161, 165, 123 S.E.2d 94, 97 (1961)).

"The Sixth Amendment's Confrontation Clause, made applicable to the States through the Fourteenth Amendment, provides: `In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him.'" Ohio v. Roberts, 448 U.S. 56, 79, 100 S.Ct. 2531, 2546, 65 L.Ed.2d 597 (1980). However, the Supreme Court has "never held ... that the Confrontation Clause guarantees criminal defendants the absolute right to a face-to-face meeting with witnesses against them at trial." Maryland v. Craig, 497 U.S. 836, 844, 110 S.Ct. 3157, 3163, 111 L.Ed.2d 666 (1990) (emphasis in original). Instead, "certain narrow circumstances ... may warrant dispensing with confrontation at trial." Id. at 848, 110 S.Ct. at 3165.

To be sure, face-to-face confrontation may be said to cause trauma for the very purpose of eliciting truth but we think that the use of Maryland's special procedure, where necessary to further the important state interest in preventing trauma to child witnesses in child abuse cases, adequately ensures the accuracy of the testimony and preserves the adversary nature of the trial. Indeed, where face-to-face confrontation causes significant emotional distress in a child witness, there is evidence that such confrontation would in fact disserve the Confrontation Clause's truth-seeking goal.

Id. at 856-57, 110 S.Ct. at 3169 (emphasis in original).

In Craig, the Supreme Court considered a Maryland statute similar to Code § 18.2-67.9 and held that where

the State makes an adequate showing of necessity, the state interest in protecting child witnesses from the trauma of testifying in a child abuse case is sufficiently important to justify the use of a special procedure that permits a child witness in such cases to testify at trial against a defendant in the absence of face-to-face confrontation with the defendant.

Id. at 855, 110 S.Ct. at 3169. Craig established three further requirements: (1) the finding of necessity must be case-specific; (2) the child must be "traumatized, not by the courtroom generally, but by the presence of the defendant"; and (3) the emotional distress suffered by the child witness must be more than "mere nervousness or excitement or reluctance to testify." Id. at 855-56, 110 S.Ct. at 3169. All three requirements are embodied in Code § 18.2-67.9.

Code § 18.2-67.9 provides:

A. The provisions of this section shall apply to an alleged victim who was fourteen years of age or under at the time of the alleged offense and is sixteen or under at the time of the trial and to a witness who is fourteen years of age or under at the time of the trial.

In any criminal proceeding, including preliminary hearings, involving an alleged offense against a child, relating to a violation of the laws pertaining to kidnapping (§ 18.2-47 et seq.), criminal sexual assault (§ 18.2-61 et seq.) or family offenses pursuant to Article 4 (§ 18.2-362 et seq.) of Chapter 8 of Title 18.2, or involving an alleged murder of a person of any age, the attorney for the Commonwealth or the defendant may apply for an order from the court that the testimony of the alleged victim or a child witness be taken in a room outside the courtroom and be televised by two-way closed-circuit television. The party seeking such order shall apply for the

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