Murry v. Commonwealth

• Decision Date: 25 June 2013
• Docket Number: Record No. 0522–12–2.
• Citation: 743 S.E.2d 302,62 Va.App. 179
• Parties: Ronald Stuart MURRY, Jr. v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

62 Va.App. 179

743 S.E.2d 302

Ronald Stuart MURRY, Jr.

v.COMMONWEALTH of Virginia.

Record No. 0522–12–2.

Court of Appeals of Virginia, Richmond.

June 25, 2013.

Steven D. Benjamin (Betty Layne DesPortes; Benjamin & DesPortes, Richmond, on briefs), for appellant.

Leah A. Darron, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: FELTON, C.J., and KELSEY and CHAFIN, JJ.

CHAFIN, Judge.

Ronald Stuart Murry, Jr., (“Murry”) was convicted by the Circuit Court of Hanover County (“circuit court”) of one count of rape in violation of Code § 18.2–61, four counts of aggravated sexual battery in violation of Code § 18.2–67.3(A)(1), and one count of aggravated sexual battery in violation of Code § 18.2–67.3(A)(3). On appeal, Murry challenges a condition of the probation he received as a result of these convictions. Murry argues that the probation condition subjecting him to suspicionless searches for the remainder of his life is unreasonable in light of the circumstances of this case.¹ We disagree and affirm the circuit court's decision.

I. Background

“On appeal, ‘we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.’ ” Archer v. Commonwealth, 26 Va.App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987)). So viewed, the evidence establishes that all of the convictions involved in this appeal stem from the reports of one complaining witness: B.W., Murry's teenage stepdaughter.Murry lived in Hanover County with B.W., her mother, and her two younger siblings. Murry first met B.W. when she was three or four years old, and he acted as a father-figure in her life.

When B.W. was five years old, Murry began coming into her bedroom at night once or twice per week and touching her breasts and vagina, both over and under her clothes. This activity continued until she was thirteen years old. In October or November 2009, when B.W. was thirteen years old, Murry came into her bedroom one night, removed his and her clothing, and inserted his penis into her vagina. Although B.W. told Murry to stop, he refused and told her that everything was “okay.” B.W. did not tell anyone about this incident until January 2011, when she told her mother. When B.W.'s mother confronted Murry, he claimed that B.W. instigated the sexual contact and that the intercourse was consensual. He then became emotionally distraught and sought in-patient mental health treatment, during the course of which he made several incriminating statements about molesting B.W.

At his trial for rape and aggravated sexual battery, Murry continued to deny that he raped B.W. Although he admitted that he had sexual intercourse with B.W. when she was thirteen years old, he claimed that B.W. instigated the sexual contact and that the intercourse was consensual. He claimed that she never told him to stop during the intercourse and that afterward he stayed in her bed for forty-five minutes discussing what was going on at B.W.'s school and the day's activities. Murry also denied that he inappropriately touched B.W. on her breasts or vagina when she was between the ages of five and thirteen years old.

The circuit court rejected Murry's testimony, finding it “entirely incredible, and ... designed to minimize his culpability and to account for the admissions that he made at the hospital....” The circuit court also found that Murry's ongoing sexually abusive relationship with B.W. and his “grooming” behavior likely led to the rape. The circuit court discounted testimony from other individuals concerning the strong, positive relationship between Murry and B.W., stating that Murry “fooled everyone.” The circuit court found Murry guilty on all charges, and sentenced him to a term of 156 years and 7 months of incarceration. The circuit court suspended 140 years of Murry's sentence, and thereby imposed an active term of incarceration of 16 years and 7 months. ²

Over Murry's objection, the circuit court ordered the following condition of his eventual probation: “[Murry] shall submit his person, property, place or residence, vehicle, and personal effects, to search at any time, with or without a search warrant, warrant of arrest or reasonable cause by any Probation Officer or Law Enforcement Officer.” The circuit court imposed this condition for the entire period of Murry's suspended sentence, a period effectively equivalent to the rest of his life. Murry objected to this condition, arguing that such a waiver “in this circumstance ... [is] not really necessarily appropriate....” In overruling Murry's objection to this condition, the circuit court stated:

I agree with the Commonwealth that [Murry] ... groomed this child from an early age to accept his physical advances and that he manipulated her into this at the same time that he was presenting to everyone in his family and ... community what a good person he would be ... to have with children. I mean it's classic predatory behavior.... And ... he does not accept responsibility for that, he exhibits distorted behavior about his own role.... And, in order to protect the community at the time that he's finally released, I want ... law enforcement to have the ability to go directly into his house at any time to see what he's doing.... ³

II. Analysis

Probation is “ ‘[a] court-imposed criminal sentence that, subject to stated conditions, releases a convicted person into the community instead of sending the criminal to jail or prison.’ ” Word v. Commonwealth, 41 Va.App. 496, 502, 586 S.E.2d 282, 285 (2003) (quoting Black's Law Dictionary 1220 (7th ed.1999)). “When coupled with a suspended sentence, probation represents ‘an act of grace on the part of the Commonwealth to one who has been convicted and sentenced to a term of confinement.’ ” Price v. Commonwealth, 51 Va.App. 443, 448, 658 S.E.2d 700, 703 (2008) (quoting Pierce v. Commonwealth, 48 Va.App. 660, 667, 633 S.E.2d 755, 758 (2006)). Code § 19.2–303 allows a trial judge to suspend a defendant's sentence following his or her conviction and place that defendant on probation “under such conditions as the court shall determine.” Nuckoles v. Commonwealth, 12 Va.App. 1083, 1085, 407 S.E.2d 355, 356 (1991). The same statute “places wide discretion in the trial court to determine what conditions are to be imposed in each particular case.” Id. Thus, the Court of Appeals “reviews a trial court's decision regarding suspension and probation under an abuse of discretion standard.” Dunham v. Commonwealth, 59 Va.App. 634, 638, 721 S.E.2d 824, 826 (2012) (citation omitted).

The only limitation placed upon a trial court's discretion in its determination of probation conditions is one of reasonableness. Anderson v. Commonwealth, 256 Va. 580, 585, 507 S.E.2d 339, 341 (1998) (citing Dyke v. Commonwealth, 193 Va. 478, 484, 69 S.E.2d 483, 486 (1952)). A condition of probation “ ‘must be reasonable, having due regard to the nature of the offense, the background of the offender[,] and the surrounding circumstances.’ ” Nuckoles, 12 Va.App. at 1086, 407 S.E.2d at 356 (quoting Loving v. Commonwealth, 206 Va. 924, 930, 147 S.E.2d 78, 83 (1966), rev'd on other grounds,388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967)); see also Anderson, 256 Va. at 585, 507 S.E.2d at 342. “Just as other punishments for criminal convictions curtail an offender's freedoms, a court granting probation may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens.” United States v. Knights, 534 U.S. 112, 119, 122 S.Ct. 587, 591, 151 L.Ed.2d 497 (2001).

“Sex offenders are a serious threat in this Nation.” McKune v. Lile, 536 U.S. 24, 32, 122 S.Ct. 2017, 2024, 153 L.Ed.2d 47 (2002) (plurality opinion). “When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault.” Id. at 33, 122 S.Ct. at 2024. “As in the present case, the victims of sexual assault are most often juveniles.” Id. at 32, 122 S.Ct. at 2024. Due to their unique threat to society, sex offender probationers are classified and treated differently than other offenders. Unlike non-sex offender probationers, sex offender probationers are required to publicly register their status with the Sex Offender and Crimes Against Minors Registry “to assist the efforts of law-enforcement agencies and others to protect their communities and families from repeat sex offenders[,] and to protect children from becoming victims of criminal offenders....” Code § 9.1–900; see alsoCode § 9.1–903. Moreover, sex offenders are typically subject to additional probation conditions designed to promote their rehabilitation and prevent their recidivism. These conditions commonly include prohibitions of or limitations on the offender's contact with minors, and requirements that the offender submit to polygraph tests concerning his or her sexual conduct and comply with psychosocial treatment regimens specific to his or her individual background and other characteristics.

Although more commonly encountered in cases when probation is imposed following convictions for contraband offenses (drug offenses, firearm offenses, etc.), see Anderson, 256 Va. at 585, 507 S.E.2d at 342, conditions requiring the waiver of a probationer's Fourth Amendment rights are also proper under certain circumstances in cases involving sex offender probationers. ⁴ When reasonable in light of the nature and circumstances of the probationer's offense and his or her background, probation conditions requiring Fourth Amendment waivers may be appropriate to ensure the probationer's good behavior, prevent his or her recidivism, and protect the public. Sex offender probationers, like all probationers,

have even more of an incentive to conceal their criminal activities and quickly dispose of...