Kilby v. Com.

• Citation: 663 S.E.2d 540,52 Va. App. 397
• Decision Date: 29 July 2008
• Docket Number: Record No. 1524-07-1.
• Court: Court of Appeals of Virginia
• Parties: Willie Robert KILBY, Jr. v. COMMONWEALTH of Virginia.

663 S.E.2d 540 52 Va. App. 397 Willie Robert KILBY, Jr.
v.
COMMONWEALTH of Virginia. Record No. 1524-07-1. Court of Appeals of Virginia, Chesapeake. July 29, 2008.

[663 S.E.2d 542]

Stephanie S. Miller (Edward W. Webb; Office of the Public Defender, on brief), for appellant.

Craig Stallard, Assistant Attorney General (Robert F. McDonnell, Attorney General; Karri B. Atwood, Assistant Attorney General, on brief), for appellee.

Present: FRANK, HUMPHREYS and MILLETTE, JJ.

ROBERT J. HUMPHREYS, Judge.

52 Va. App. 400

Willie Robert Kilby Jr. ("Kilby") appeals ten criminal convictions arising out of his inappropriate sexual conduct towards his grandchildren.¹ Kilby claims that the trial court

52 Va. App. 401

erred (1) by admitting certain hearsay testimony into evidence, (2) by allowing a witness to testify as an expert, and (3) by allowing that witness to comment on the veracity of another witness. For the following reasons, we affirm the decision of the trial court.

I. Background

"On appeal, we review the evidence in the light most favorable to the Commonwealth, the prevailing party below, giving it the benefit of all reasonable inferences." Pierce v. Commonwealth, 50 Va.App. 609, 612, 652 S.E.2d 785, 787 (2007). So viewed, the evidence established the following.

Kilby is the grandfather of three minor children, M.D., D.A., and D.S. In August 2005, M.D., a male, was eleven years old, D.A., a female, was seven, and D.S., a female, was five. Between August 5, 2005 and December 10, 2005, Kilby sexually assaulted all three of the grandchildren.

On December 12, 2005, Detective John T. Johnson, III ("Detective Johnson") of the

663 S.E.2d 543

Newport News Police Department interviewed D.A. and D.S. as part of an investigation into alleged sexual abuse by their stepfather, Mike Perez. During the interview, and without solicitation by Detective Johnson, D.A. told Detective Johnson that Kilby had shown her and her siblings "dirty movies" and then did "the same thing" to them. In response to D.A.'s accusation, Detective Johnson opened an investigation of Kilby. At some point during the investigation, D.A. told Detective Johnson that Kilby had raped her. Specifically, she told Johnson that Kilby had "put his pee pee in [her] pee pee." Detective Johnson secured a search warrant for Kilby's apartment, where he discovered twenty-two pornographic videos. Among the tapes, Detective Johnson discovered several that depicted the type of sexual actions described by D.A.

52 Va. App. 402

On January 30, 2006, Kelly Bober ("Bober"), lead forensic investigator for Children's Hospital of the King's Daughters Child Abuse Program, conducted a forensic interview with each of the children. All three of the children described sexual abuse by Kilby.

On April 17, 2006, Detective Johnson interviewed D.A. again. During that interview, she told Detective Johnson that she did not remember Kilby ever having sexual intercourse with her.

A grand jury subsequently charged Kilby with three counts of aggravated sexual battery, in violation of Code § 18.2-67.3, three counts of indecent liberties with a child, in violation of Code § 18.2-370.1, three counts of contributing to the delinquency of a minor, in violation of Code § 18.2-371, one count of forcible sodomy, in violation of Code § 18.2-67.1, and one count of rape, in violation of Code § 18.2-61.

At trial, the Commonwealth presented several witnesses, including Detective Johnson, Bober, and all three children. Detective Johnson testified first. He testified to allegations of sexual abuse made by D.A. during the December 12, 2005 interview. Kilby objected, stating,

Your Honor, I'm going to object to this as evidence in chief. I don't mind him bringing it in as long as it's understood it's not evidence; it's hearsay, and the statement the child made outside of court is hearsay. I mean, if they want to bring it in for some other purpose, your Honor, as long as it's understood it can't be read as evidence against the defendant, I don't object.

The trial court allowed the testimony as part of the "process of the investigation." The trial court accepted a standing objection by Kilby on those grounds in regard to the children's out-of-court statements. Detective Johnson proceeded to testify about statements that D.A. made during the December 12, 2005 interview. He explained that D.A.'s accusations were the reason that he began to investigate Kilby. Detective Johnson did not testify to any statements made by D.S. or M.D. during the entire course of his investigation.

52 Va. App. 403

Following Detective Johnson's testimony, each of the three children testified in detail to sexual abuse by Kilby. On cross-examination, Kilby asked D.A. if she remembered Detective Johnson asking her, during the April 17, 2006 interview, whether Kilby had raped her. D.A. testified that she did. Kilby asked if she remembered telling Detective Johnson that she did not remember Kilby raping her. D.A. responded, "No, I never — I didn't say that."

The Commonwealth subsequently called Bober to testify "as an expert in forensic interviewing, child sexual abuse disclosure by children of sexual assault and recantation."² Bober testified that she is the lead forensic interviewer at Children's Hospital of the King's Daughters Child Abuse Program. She explained that, as a forensic interviewer, she interviews children that have allegedly been abused and children who have witnessed crimes. Her specialty is dealing with children who have been sexually abused. Those children make up about 95% of the children she interviews. Bober had worked as a forensic interviewer for nine years and

663 S.E.2d 544

prior to that had worked with the Chesapeake Health Department providing in-home services to at-risk families. Bober testified that she has a bachelor's degree in social work, and also explained that, although master's degrees are not offered in forensic interviewing, she has attended numerous forensic training programs across the country.³ Bober testified further that she had previously qualified as an expert in child sexual abuse cases in Newport News, Portsmouth, Norfolk, the Coast Guard, the Army, and the Navy. Specifically, she had been qualified in the areas of forensic interviewing, "the process of disclosure," and "recantation and delayed disclosure."

52 Va. App. 404

Kilby objected to the use of Bober as an expert witness. He stated: "I object, your Honor. I think this calls for specialization beyond — some sort of, you know, degree and education in the area, and I object to her qualifications." The trial court overruled Kilby's objection and allowed Bober to testify.

During Bober's testimony, Kilby made two additional objections. Kilby first objected when the prosecutor asked Bober about statements D.S. had made during her interview. Kilby objected, arguing again that the children's out-of-court statements are hearsay. The trial court overruled Kilby's objection, stating that D.S.'s statements were admissible as the basis of Bober's opinion. The prosecutor followed up by arguing that the testimony was also admissible as a prior consistent statement. The trial court said "Correct." Kilby did not object.

Kilby next objected during Bober's testimony regarding delayed disclosure. The objection took place in the following context:

Bober: [Child sexual abuse victims] use different defense mechanisms to protect themselves at that stage of disclosure, and they only either give a partial statement, or they minimize their statement.

[Prosecutor]: Did you feel that this is what was going on with [M.D.] on January 30?

[Defense]: I object to the conclusion, your Honor.

Court: You may wish to rephrase that.

[Prosecutor]: Based upon your training and experience with children that have been alleged to have had sexual abuse, do you feel that [M.D.] was in a state of delayed disclosure at the point you talked to him?

Bober: I would say that he was giving a tentative disclosure related to some of the language that he used, yes.

Kilby made no objection to the prosecutor's second question or Bober's response.

52 Va. App. 405

In his case-in-chief, Kilby called several witnesses, including Detective Johnson. Kilby questioned Detective Johnson about statements D.A. made to him during the April 17, 2006 interview. Detective Johnson testified that D.A. told him that she could not remember Kilby ever having sexual intercourse with her.

The trial court subsequently convicted Kilby of all of the charges except the rape charge. Kilby now appeals that decision.

II. Analysis

Kilby raises several issues on appeal. First, he claims that the trial court erred by allowing Detective Johnson and Bober to testify regarding out-of-court statements made by the three children. Next, he claims that the trial court erred by allowing Bober to testify as an expert. Finally, he argues that the trial court erred by allowing Bober to give an opinion "bearing on" the veracity of M.D. For the following reasons, the trial court did not err in admitting Detective Johnson's and Bober's testimony regarding out-of-court statements made by the children and properly accepted Bober as an expert. Under Rule 5A:18, Kilby's claim that Bober improperly commented on M.D.'s veracity is waived since no such objection was made to the trial court.

663 S.E.2d 545

A. The Children's Out-Of-Court Statements

Both Bober and Detective Johnson testified regarding interviews that they had conducted with the children. Detective Johnson testified about statements made by D.A., and Bober testified about statements made by all three children. Kilby claims that their testimony regarding the children's statements was inadmissible because the children's statements were hearsay.

1. Detective Johnson's Testimony Regarding D.A.'s Statements

Initially, the Commonwealth claims that Kilby waived his objection to Detective Johnson's testimony because

52 Va. App. 406

he later called...