Mayberry v. Commonwealth
| Decision Date | 18 October 2022 |
| Docket Number | 1380-21-2 |
| Parties | CHRISTOPHER DUSTIN MAYBERRY v. COMMONWEALTH OF VIRGINIA |
| Court | Virginia Court of Appeals |
FROM THE CIRCUIT COURT OF APPOMATTOX COUNTY S. Anderson Nelson Judge
Jordan B. Davies (Jordan B. Davies, PLLC, on brief), for appellant.
Lucille M. Wall, Assistant Attorney General (Jason S Miyares, Attorney General, on brief), for appellee.
Present: Chief Judge Decker, Judge O'Brien and Senior Judge Haley Argued by teleconference
A jury convicted Christopher Dustin Mayberry of aggravated sexual battery, contributing to the delinquency of a minor, and four counts of taking indecent liberties with a minor.[1] On appeal, Mayberry argues that the trial court erroneously permitted the victim to testify by closed-circuit television under Code § 18.2-67.9. Mayberry also challenges the sufficiency of the evidence to sustain his aggravated sexual battery conviction and two of his convictions for taking indecent liberties with a minor. For the following reasons, we affirm the trial court's judgment in part and reverse it in part.
On appeal, we review the evidence "in the 'light most favorable' to the Commonwealth, the prevailing party in the trial court." Hammer v. Commonwealth, 74 Va.App. 225, 231 (2022) (quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). Doing so 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 to be drawn therefrom." Cady, 300 Va. at 329 (quoting Commonwealth v. Perkins, 295 Va. 323, 324 (2018)).
In March 2019, thirty-two-year-old Mayberry was living with his girlfriend, Kelsey Angel, and her seven-year-old daughter, K.M. On March 27, 2019, Angel became ill at work and brought K.M. home from school early. Angel slept in her bedroom while K.M. played in the living room, and Mayberry worked outside on his pickup truck, near Angel's van and a car. When K.M. went outside to retrieve her bookbag from Angel's van, Mayberry told her that she would "be cleaning out" the car with him. She placed her bookbag in the house and returned to assist him.
K.M. found Mayberry urinating behind his pickup truck. Mayberry asked K.M. whether she "want[ed] to touch it," and she "briefly touched" his exposed penis. Mayberry then entered the car and told her to "get in on the other side." After K.M. complied, Mayberry removed several "inappropriate" DVDs from the glovebox and showed them to her, saying that she "would have to watch them" with him "one day when [Angel] was not home." As Mayberry played "inappropriate videos" of "naked people" on his cell phone, K.M. saw that "his private [was] out" and he "was pushing his area up and down." Over the material directly covering K.M.'s intimate parts, he placed "two fingers" on the "crack" of her "genitals" and began "circling" them with his fingers. Mayberry also grabbed K.M.'s hand and used it to push "up and down on his private parts" before continuing to "do[] it by himself" until "some white stuff came out." Afterward, Mayberry "clean[ed] himself up" with a "pair of gloves" and placed them in his truck "so [Angel] couldn't find them." He warned K.M. not to "tell anybody" what he had done because they would "both go to jail"; he also said that he "had to clear" his cell phone's "history" so Angel would not discover it.
That evening, K.M. removed her clothes and placed them in the laundry hamper. She later disclosed the incident to her father's girlfriend.
Three days after the incident, Appomattox County Sheriff's Investigator Christopher Tanner executed a search warrant for Angel's home and Mayberry's pickup truck. In a dryer inside the house, Tanner found several rags, a pair of gloves, and K.M.'s clothing worn during the incident. Police prepared a "PERK"[2] and obtained a buccal swab of Mayberry's DNA. Tanner also interviewed K.M., who drew a circle near the vagina on a diagram of a female body to indicate where Mayberry had touched her genitals.
Tanner conducted three audio-recorded interviews with Mayberry. Initially denying any wrongdoing, Mayberry became "emotional" and confessed that he had allowed K.M. to touch his penis while he was urinating behind the truck. He admitted that he had asked her whether she "wanted to touch it" and warned her afterward, "don't say nothing to nobody." Mayberry also admitted that he "made a bad decision" but maintained that he "never touched" K.M. Mayberry wrote two letters to K.M., apologizing "for everything" and stating his desire to become a "true father/stepfather" to her.
Police arrested Mayberry, and the Commonwealth indicted him for aggravated sexual battery, contributing to the delinquency of a minor, and four counts of taking indecent liberties with a minor. Before trial, the Commonwealth moved the trial court to allow K.M. to testify via two-way, closed-circuit television under Code § 18.2-67.9. At a hearing on the motion, Sara Addair, an "expert in childhood trauma" and its effect "on children under ten testifying in open court," testified that "childhood trauma" is "any kind of negative event that emotionally impacts a child." She explained that children who have experienced such trauma "usually" suffer from "PTSD," which often manifests as recurrent "distressing thoughts and memories, nightmares, and avoidant behavior"; other symptoms include "hypervigilance, hyper arousal, irritability," and "negative beliefs about self."
Addair had been conducting weekly, one-hour therapy sessions with K.M. for about seven months since the incident. During those sessions, K.M. "shut down" and cried "any time" Addair discussed Mayberry or court. K.M. identified where the assault had occurred but could not "handle" discussing "anything to do with" Mayberry or the assault. K.M. also had disclosed that "she would be very scared if she had to see [Mayberry] again." Based on Addair's observations and K.M.'s statements, Addair opined that K.M.'s "PTSD would get significantly worse" if she had to testify in front of Mayberry in open court. According to Addair, "physically seeing [Mayberry] in person would" terrify K.M. and cause her to reexperience her trauma from the assault, which would exacerbate her PTSD.
Addair opined that the likely consequence of K.M.'s reexperiencing her trauma would be "increased anger outbursts and defiance" at home and school and, "potentially," a "crisis situation." She opined that K.M. might become "more physically aggressive" and "potentially do something to hurt herself," including "suicide." She cautioned that "even for a kid as young as eight[,] I've seen that happen." Considering those risks, Addair concluded that testifying by closed-circuit television presented "less of a chance of exacerbating [K.M.'s] PTSD symptoms," although K.M. would still be "nervous." Acknowledging that "testifying in court is nerve racking for anyone," Addair clarified,
The trial court found that Addair had maintained "constant interaction" with K.M. since the incident and her testimony demonstrated that K.M. was "very scared," suffered from PTSD, and was unable to discuss the incident. Continuing, the trial court found that, if compelled to testify before Mayberry, K.M. would "re-experience the trauma," her PTSD would "worsen," and a "crisis situation" would develop where she would "suffer outbursts, aggression, and . . . potentially hurt herself." Based on those circumstances, the trial court found that there was "a substantial likelihood that K.M. . . . will suffer severe emotional trauma if required to testify" in Mayberry's presence. Accordingly, it granted the Commonwealth's motion.
At trial, K.M. testified via closed-circuit television about the assault as detailed above and added that the car was not "messy" and Mayberry had not been "cleaning" it. Angel testified that Mayberry "frequently brought stuff" into the house to wash in the laundry machine, including on the day of the incident. After Mayberry's arrest, she received two apology letters from him addressed to K.M. Tanner testified regarding the execution of the search warrant, K.M.'s interview, and Mayberry's admissions. He also authenticated the first apology letter Mayberry had written and the diagram K.M. had marked to indicate where Mayberry had touched her genitals.
At the conclusion of the Commonwealth's case, Mayberry argued that the evidence failed to prove the offense alleged in the indictment for one of the indecent liberties charges, in case number CR19000304-00. He asserted that although Code § 18.2-370 contains "many subsections," the indictment's language required the Commonwealth to prove specifically "that he [had] proposed to feel" K.M.'s genitals in violation of Code § 18.2-370(A)(3). Continuing, he argued that the evidence established that he had touched K.M.'s genitals but not that he had proposed to do so. Mayberry also moved to strike the indictment for a second indecent liberties charge, in case number CR19000252-00, arguing that the evidence failed to prove that he had the requisite "lascivious intent" when he invited K.M. inside the car. The trial court denied the motions.
Testifying for the defense, Yelitza Rivera-Rodriguez said that forensic DNA testing did not detect blood, semen, or Mayberry's DNA on K.M.'s clothing worn during the assault, the rags and gloves collected from the dryer, or the physical samples included in the PERK. She acknowledged, however, that "washing and drying" removes "any bodily fluids" from clothing.
At the conclusion of the evidence, Mayberry...
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