Lockhart v. Com.

• Decision Date: 20 February 2001
• Docket Number: Record No. 2575-99-3.
• Citation: 542 S.E.2d 1,34 Va. App. 329
• Court: Virginia Court of Appeals
• Parties: Weinthal LOCKHART v. COMMONWEALTH of Virginia.

542 S.E.2d 1

34 Va. App. 329

Weinthal LOCKHART v. COMMONWEALTH of Virginia.

Record No. 2575-99-3.

Court of Appeals of Virginia, Richmond.

February 20, 2001.

Robert M. Galumbeck (Dudley, Galumbeck, Necessary & Dennis, on brief), Tazewell, for appellant.

Leah A. Darron, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: BUMGARDNER, HUMPHREYS and CLEMENTS, JJ.

CLEMENTS, Judge.

Weinthal Lockhart was tried by jury and convicted of forcible sodomy for having anally and orally sodomized a boy less than thirteen years of age, in violation of Code § 18.2-67.1. On appeal, he contends the trial court erred (1) in denying his motion to suppress evidence obtained from a search of his home that was invalid because the magistrate failed to file the affidavit supporting the search warrant within thirty days as required by Code § 19.2-54, (2) in not allowing the admission of evidence of the victim's misconduct at school and of his tendency to always make excuses for that misconduct, (3) in denying his motion to set aside the verdict based upon his contention that the verdict was not supported by sufficient evidence because the victim's testimony was inherently incredible, and (4) in denying his post-trial motion to set aside the verdict and dismiss the indictment because the Commonwealth failed to timely disclose exculpatory evidence. Finding no error, we affirm the conviction.

I. BACKGROUND

In July 1995, eleven-year-old M.B. joined his older brother, A.B., in working for Lockhart a few days a week on his Buchanan County farm, cutting weeds, feeding livestock, and doing other chores. Lockhart always paid them in cash or by check for their work. Over time Lockhart also bought M.B. a stereo, a bicycle, and a motorcycle. Occasionally, M.B. would go to Lockhart's farm not to work but to ride motorcycles with Lockhart's son, D., who was a year older than M.B.

Approximately one month after M.B. began working for him, Lockhart started putting his hands down the child's pants and masturbating him. Two weeks later, Lockhart began anally sodomizing M.B. Lockhart made M.B. lie naked on Lockhart's bed on his stomach and Lockhart, with his pants pulled down to his ankles, put his penis in M.B.'s anus. He used a lubricant from a blue and white tube he kept on his nightstand.

Lockhart anally sodomized M.B. in his bedroom approximately once a week on ten to fifteen different occasions. Each incident lasted approximately ten minutes. On two occasions, Lockhart also orally sodomized M.B., placing M.B.'s penis in his mouth. In discussing these activities with M.B., Lockhart referred to oral sodomy as a "blow job" and anal sodomy as being "butt-fucked." Lockhart never asked M.B. to perform anal or oral sodomy on him.

M.B., having observed Lockhart totally naked three to five times, described Lockhart as having a lot of body hair all over him, including in the area of his genitals and buttocks; as having scars and a lot of moles on his back; and as being uncircumcised. The Commonwealth's photographs of Lockhart's nude body, viewed in their entirety, corroborated M.B.'s description.

M.B. also identified several items recovered by the Commonwealth during a search of Lockhart's home, including an artificial vagina, a magazine showing pictures of naked men with erections, and a magazine depicting a man using a device purported to be a penis enlarger. M.B. first saw the artificial vagina on a shelf in Lockhart's closet when he was getting a shirt and then later when Lockhart removed it from the closet and showed it to him. He first saw the magazines under Lockhart's bed when Lockhart asked him to retrieve his safe from there. Later, he observed Lockhart looking at the magazine showing naked men with erections. Additionally, he and Lockhart discussed the magazine depicting the penis enlarger and Lockhart indicated he had such a device.

M.B. first reported the sexual abuse to his parents on November 16, 1996, at a time when, according to M.B.'s mother, M.B.'s father was upset because M.B. acted as if he loved Lockhart more than he loved his father. M.B. admitted he finally told his parents about the abuse because his father was distressed at the thought that M.B. and his brothers did not love him anymore and cared more about Lockhart than they did about him.

Approximately two weeks before telling his parents about the molestation, M.B. told his fifteen-year-old uncle and his brother A.B. about it. M.B. then discussed the situation at least one other time with A.B. before informing his parents. A.B. testified that he observed Lockhart masturbating M.B. on the bed in Lockhart's bedroom shortly after M.B. first told him about the sexual abuse.

Dr. Roy Thomson, a pediatrician, physically examined M.B. on November 21, 1996. He found that M.B.'s anal opening was enlarged and that the muscles of his perineal sphincter had lost their normal tone due to repeated penetration of the anus by an object larger than the anal opening and firm enough to cause the resultant trauma. The doctor concluded that the use of a penis to repeatedly penetrate M.B.'s anus would be consistent with his physical findings. M.B. never had anal intercourse with anyone else and never had anything else placed inside his rectum prior to being examined by the physician.

Taking the stand in his own defense, Lockhart, who was in his fifties, testified that he had been separated from his wife for eight years. He lived with his son, D., on the farm. M.B., with his parents' permission, would come to his farm two or three times a week to do various chores. Occasionally, M.B.'s parents would call and ask Lockhart to look after M.B. at Lockhart's home. A "good worker," M.B. had the run of the house and Lockhart trusted him like a son.

Lockhart further testified that, approximately a month before M.B. accused Lockhart of molesting him, M.B. got into a "major fight" with D. and cut his eye. After the fight, Lockhart told M.B. that he could not come to the farm anymore.

Denying that he ever showed them to M.B., Lockhart stated that he had the artificial vagina for approximately nine years and the two sexually oriented magazines referred to by M.B. for five or six years. He further stated that he used the lubricant found in his bedroom as a conductor gel on the electrodes of a medical device he used to decrease the pain in his injured back.

Lockhart denied ever threatening M.B., touching him on his genitals, or sodomizing him, anally or orally. He suggested that M.B. concocted the story about being sexually abused because he was mad at Lockhart for banishing him from the farm after the fight with D. He could not, though, suggest a reason why A.B. would testify that he had observed such abuse.

II. MOTION TO SUPPRESS

The sexually oriented items obtained by the Commonwealth from Lockhart's residence and admitted at trial were seized pursuant to a search warrant issued by a magistrate. Lockhart contends those items, and the photographs thereof, should have been suppressed because the search was invalidated by the magistrate's failure to file the supporting affidavit with the clerk of the circuit court within thirty days of issuance of the search warrant, as required by Code § 19.2-54.

Code § 19.2-54 requires the filing of a supporting affidavit with the officer authorized to issue search warrants (a magistrate, in this case) prior to the issuance of a search warrant. The statute sets forth what must be included in the affidavit and further provides that

[s]uch affidavit shall be certified by the officer who issues such warrant and delivered by such officer or other officer authorized to certify such warrants to the clerk of the circuit court of the county or city wherein the search is made within seven days after the issuance of such warrant....

Failure of the officer issuing such warrant to file the required affidavit shall not invalidate any search made under the warrant unless such failure shall continue for a period of thirty days.

Code § 19.2-54 (emphasis added).

Here, the affidavit filed in support of the search warrant was subscribed and sworn to before the magistrate on November 20, 1996, by Larry Crouse, a special police officer and paralegal assistant for the office of the Commonwealth's Attorney. The magistrate issued the search warrant on the same date. Crouse executed the warrant later that same day and filed it the following day, November 21, 1996, with the clerk of the circuit court in Buchanan County, where the search was made. Along with the original search warrant, Crouse filed an inventory of the items seized during the search and the original supporting affidavit.¹ More than ten months later, on August 25, 1997, the magistrate who issued the search warrant filed a copy of the affidavit with the clerk of the circuit court.

Lockhart contends that Code § 19.2-54, being penal in nature, must be construed strictly against the Commonwealth and in favor of the accused. Therefore, he argues, the magistrate's failure to file the required affidavit within the prescribed thirty days invalidated the search. Hence, his argument continues, the evidence seized pursuant to the search was not admissible and should have been suppressed.

The Commonwealth maintains that the Supreme Court's rationale in Quintana v. Commonwealth, 224 Va. 127, 295 S.E.2d 643 (1982), requires a less technical and less constrained reading of Code § 19.2-54 when, as here, the notice-based purpose of the statute is satisfied. Based on the record before us, we agree with the Commonwealth that the rationale in Quintana is controlling.

In Quintana, the defendant moved for suppression of evidence seized in a search because, as in the instant case, the magistrate failed to strictly comply with the procedural requirements of Code § 19.2-54. Specifically, the magistrate who issued the search warrant in Quintana failed to certify the supporting affidavit before...