Moison v. Commonwealth
| Decision Date | 02 August 2022 |
| Docket Number | 1038-21-1 |
| Parties | HEATH NICHOLAS MOISON v. COMMONWEALTH OF VIRGINIA |
| Court | Virginia Court of Appeals |
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Mary Jane Hall Judge
J Barry McCracken, Assistant Public Defender, for appellant.
Craig W. Stallard, Senior Assistant Attorney General (Jason S Miyares, Attorney General, on brief), for appellee.
Present: Chief Judge Decker, Judges Athey and Chaney Argued at Norfolk, Virginia
Following a jury trial in the Circuit Court for the City of Norfolk ("trial court"), Heath Nicholas Moison ("Moison") appeals three convictions for aggravated sexual battery as a parent, in violation of Code § 18.2-67.3, and four convictions for taking indecent liberties with a child as a custodian, in violation of Code § 18.2-370.1(A). On appeal, Moison contends the following: (1) the trial court erred in excluding testimony on the ground that it was an alibi not properly disclosed before trial pursuant to Rule 3A:11(d)(2); (2) the trial court erred in finding that there was sufficient evidence to support his convictions; and (3) the trial court erred by instructing the jury that they were entitled to infer that every person intends the natural and probable consequences of his acts. For the following reasons, we affirm.
Moison and Nikita Colvard ("Colvard") had two children together. B.M. was born in 2003, and K.M was born in 2005. Moison and Colvard ended their relationship while Colvard was expecting K.M. Moison initially continued his parental relationship with the girls by caring for them while Colvard was at work. However, when K.M. was about a year old, one of the girls nearly drank bleach while in his care. As a result, Colvard temporarily ceased letting the girls visit with Moison. Around 2008, Colvard began permitting him to visit with the girls again. Moison has continuously lived in Norfolk with his mother and stepfather, and Colvard permitted the visitation to progress over time from having the girls at his mother's home every Sunday to having visitation with them every other weekend for the entire weekend.
In 2015, B.M. stopped wanting to go to her paternal grandmother's home for visitation with Moison. At trial, Colvard testified that around 2009, B.M. and K.M. did not want to wear dresses anymore and wore pants almost exclusively. According to Colvard, the girls wore sweaters even in the worst summer heat. B.M., who was about six years old at the time, "wanted nothing to do with bathing suits . . . [or] shorts." Colvard further testified that at This was a "sudden change." According to Colvard, around 2010, K.M, who had "always loved dressing up," changed also and "eventually became this tomboy who no longer wanted to dress up" and constantly wore "long shorts [and] oversized shirts."
Both girls testified at the trial that Moison began sexually abusing them during their overnight visits at their grandmother's home where they slept together in a bedroom. B.M. testified that Moison would rub her back underneath her shirt and would also "mess with [her] breasts" and "put his mouth on them." She further testified that Moison would "touch [her] over [her] clothes or over [her] pants in [her] vagina or buttocks area." B.M. explained that her father would start to abuse her while she was still asleep, but when she awoke, she would turn away from him so that he would leave her alone. She also confirmed that the episodes occurred almost every time she spent the night at her paternal grandmother's house and that he touched her vaginal area "a few times." She stated that she knew it was her father because of the size of his hands-Moison is six feet and six inches tall-and because she would see him in the room.
Consistent with the testimony of her sister, K.M testified that when she was eight or nine years old, Moison began touching her breasts, vagina, and stomach under her clothes during overnight visitation at her grandmother's home. She explained that if she wore a nightgown, he would lift it; if she wore pants, he would try to pull them off. She also stated that Moison would lift the covers on her side of the bed so he could gain access. Like her sister, when the touching woke her, she would close her eyes and turn away to try to get him to stop. K.M. saw his face during at least some of these incidents. Again, like her sister, she confirmed that the episodes would occur "every time we would go over there" and that Moison would not speak to her during the incidents, which were short. The abuse would stop when K.M. would "physically get up and leave or go to the bathroom."
Both girls testified that the sexual abuse continued until they reported the abuse to their mother after an incident in November of 2018. That incident occurred when they were visiting with Moison for the weekend and all three went to a birthday party at the home of one of Moison's friends, a woman named Laurie Lee ("Laurie"). While at the birthday party, the girls fished, played with a dog, and ate smores. When Moison became too drunk to drive them home, they stayed the night. Around 1:00 a.m., the girls went to sleep on couches in the living room. B.M. testified that she woke up around 5:00 a.m. and her father was "laying down on the ground next to me and rubbing my back." He tried to put his hands inside her pants on her private parts and when she turned away, he forcefully tried to get her to turn back around. She then saw him move over to K.M. and put his hands beneath her blanket. K.M. testified that she woke up around 3:00 or 4:00 a.m. to her father's hand fondling her breast and side. She tried to move around so that he would stop, but he continued. She eventually got up to go to the bathroom. When she came back, she saw B.M. awake and assumed he had fondled her sister after she left the room. B.M. texted several friends concerning the abuse and was told by friends that she ought to report him.
Moison and the girls left Laurie's home around 9:00 a.m. the next morning and when they arrived at their grandmother's house, the girls contacted their mother and asked her to pick them up. After spending the afternoon at a park near their home, B.M. wrote a note to her mother explaining what had happened at the birthday party and that Moison had been sexually abusing them since they were young children. Colvard read the note and spoke with the girls about their allegations. K.M. testified that she had delayed reporting the abuse to her mother because she did not think she would be believed. The next day, at a child support hearing at which Colvard was seeking child support from Moison, she spoke with her attorney. The attorney recommended that she contact Child Protective Services ("CPS"). Colvard then contacted CPS and also obtained a protective order against Moison on behalf of the girls. After reporting Moison's abuse and ceasing all contact, the girls "began to flourish," and Colvard "saw genuine love in their face[s]."
Jessica Arrington was qualified as an expert witness in forensic interviewing and delayed reporting of child sexual abuse.[1] She testified that delayed disclosures of child sexual abuse are not unusual and that children frequently do not remember all the details of traumatic experiences.
At the conclusion of the Commonwealth's evidence, Moison moved to strike, arguing there was insufficient evidence to prove he touched them in bed because the girls' testimony was incredible. He further argued that even if he did touch them, there was insufficient evidence of his intent to sexually gratify himself. The Commonwealth responded that the girls' testimony was not inherently incredible and that a grown man repeatedly touches the intimate parts of a female in the circumstances and manner described by the girls for only one purpose-sexual gratification. The trial court denied the motion to strike.
Moison called several witnesses in his defense. The first was Michelle Guzman ("Guzman"), Moison's longtime girlfriend and the mother of his other children. She testified that she never saw any reason to report Moison even though he, K.M., and B.M. frequently visited her home. Guzman testified that after their father was no longer in their lives, K.M and B.M. started living a party lifestyle and became alienated from her children. Shelby Guzman ("Shelby"), the half-sibling of K.M. and B.M., testified that the relationships between her and the girls broke down because of time and distance when Shelby went to high school and then to college. K.M. and B.M.'s paternal grandmother testified that she would have woken up if anyone had been moving around in the house during bedtime hours and that she did not believe her son committed any of the crimes of which he was accused.
Laurie the friend who had hosted the birthday party where Moison allegedly abused the girls, testified that the party was held the evening of November 3, 2018. She confirmed the girls' activities during the party. Next, the defense attempted to elicit testimony from her that she and Moison were outside in the yard together until approximately 6:00 a.m. and then watched a movie together in the home from approximately 6:00 a.m. to 7:30 a.m. The Commonwealth objected to the admission of the expected testimony into evidence because it was intended to prove that Moison could not have committed the alleged abuse at Laurie's home. The Commonwealth suggested that it was an alibi for which the defense had not given proper notice under Rule 3A:11. The defense conceded it had not given notice of the expected testimony but...
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