Nicholson v. Commonwealth Of Va.

Decision Date13 July 2010
Docket NumberRecord No. 0168-09-4.
Citation694 S.E.2d 788,56 Va.App. 491
PartiesWoodrow Wilson NICHOLSONv.COMMONWEALTH of Virginia.
CourtVirginia Court of Appeals

Joseph A. Sadighian, Senior Assistant Appellate Defender (Office of the Appellate Defender, on brief), for appellant.

Joshua M. Didlake, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: BEALES, POWELL and ALSTON, JJ.

ALSTON, Judge.

Woodrow Wilson Nicholson (appellant) was convicted in a bench trial of aggravated sexual battery, through the use of the victim's mental incapacity, in violation of Code § 18.2-67.3. On appeal, appellant argues that the Commonwealth failed to prove he committed aggravated sexual battery because the evidence was insufficient to prove that appellant forced the victim to touch his intimate parts. Specifically, appellant argues that Code § 18.2-67.3 requires the use of actual force to establish sexual abuse when the complaining witness is mentally incapacitated. We hold that Code § 18.2-67.3 does not require the use of actual force under these circumstances. Therefore, we affirm the judgment of the trial court.

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.” Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987). Viewed through this evidentiary prism, the evidence established that J.A., a forty-four-year-old man with Down's Syndrome, touched appellant's penis on February 5, 2008. At that time, J.A. was a client at Blue Ridge Opportunities (Blue Ridge), a facility that provides vocational and social training for mentally disabled adults and students.

On February 5, 2008, J.A. left Blue Ridge at approximately 9:15 a.m. for his work assignment at a nearby business. Candy Lamb (Lamb), the program director at Blue Ridge, went outside shortly after J.A. departed and saw him talking to a man in the Blue Ridge parking lot. This man was later identified as appellant. Lamb approached J.A. and told him that he needed to go to work. J.A. assented and began walking away from Blue Ridge. Lamb asked appellant if she could help him, and appellant responded that he was waiting for the pawnshop to open for the day.

Lamb went back to her workplace, but continued to watch J.A. from the door of the facility. She saw appellant pursue and ultimately catch up with J.A. The two men crossed the street together and entered an alley. Concerned for J.A.'s safety, Lamb went back outside and walked toward the alley. When she was standing approximately eighteen feet from appellant and J.A., she shouted at J.A. to come over to her. At this time, J.A. was facing Lamb, and appellant stood between them, with his back to Lamb and the street. J.A. walked over to Lamb, and appellant turned towards her. Lamb could see that appellant's pants were undone and that his penis was exposed. Lamb and J.A. went back to Blue Ridge and called the police. Lamb did not see J.A. touch appellant nor did she see appellant touch J.A. during this encounter.

After the police found appellant at a local business, appellant agreed to accompany them to the police station. Corporal S. Mauck formally Mirandized appellant and interviewed him regarding his earlier interaction with J.A. Corporal Mauck testified that a slight odor of alcohol emanated from appellant's person during the interview. Appellant claimed he had a “couple shots of bourbon and some wine” that morning. During the interview, Corporal Mauck told appellant that he had been seen near Blue Ridge, which the corporal referred to as a “school for handicapped people.” He also informed appellant that both J.A. and an employee at the school told Corporal Mauck that appellant had exposed himself in the alley near Blue Ridge. Corporal Mauck repeatedly told appellant that he knew that “a handicapped boy” had touched appellant's penis. Appellant repeatedly denied any involvement with the “handicapped boy.” After being pressed on the issue, appellant stated numerous times that if any touching did occur, he “was sorry.” Appellant said that his mind was “confused,” presumably from his consumption of alcohol. After Corporal Mauck told appellant that only guilty individuals apologized for their actions, appellant stated that J.A. “talked [him] into it,” by offering to “play with” appellant's penis in exchange for money to buy a soda. According to appellant, when appellant agreed to J.A.'s proposition, J.A. unzipped appellant's pants and touched appellant's penis. Subsequently, appellant demonstrated how J.A. touched appellant's penis. Additionally, he claimed that he was unaware that J.A. was mentally disabled, and asserted that he was not sure if J.A. was male or female. Appellant's statement was recorded and viewed by the trial court during appellant's bench trial for aggravated sexual battery.

In addition to Lamb's testimony and appellant's taped statement, the Commonwealth presented the testimony of J.A.'s sister and legal guardian, Caroline Jo Johnson (Johnson), and Kathy Wolfe-Heberle (Wolfe-Heberle), Blue Ridge's president, during the trial. According to Wolfe-Heberle, J.A. was “severely mentally retarded” and possessed the functional ability of a child between the ages of five and ten years old.

Johnson testified that she became J.A.'s primary caretaker in November 2006, when J.A. moved in with Johnson and her husband. As J.A.'s legal guardian, Johnson was responsible for taking care of his needs, managing his finances, and providing reports to Social Services regarding his well-being. Johnson described her brother's ability to take care of his personal hygiene. While he could bathe himself, Johnson had to take care of many other tasks, such as helping him into the shower, turning on the water, and providing him with towels and washcloths. She washed his hair and trimmed his fingernails and toenails. J.A. was able to perform simple chores like making his bed, and he was able to follow Johnson's simple directions. Johnson explained that if she asked J.A. to complete multiple tasks at once, he was unable to remember all of them.

Johnson testified that J.A. enjoyed coloring with crayons in children's coloring books and watching the same television shows that he enjoyed as a child, such as I Love Lucy and The Brady Bunch. Johnson stated that he had never shown any interest in more mature programming. Additionally, Johnson testified that J.A. lacked initiative. Specifically, she stated that J.A. would follow directions given to him by other adults, even if they were strangers, and that he was unable to negotiate for a reward in exchange for following directions.

Finally, Johnson testified that J.A. had not expressed an interest in sex since he began living with her in 2006. She stated that her brother's genitals had never developed and that he had no underarm or facial hair. Johnson had never seen J.A. sexually aroused, and she had never seen evidence of nocturnal emissions or other discharges while cleaning his laundry. She stated that J.A. had a “girlfriend,” whom he saw once a year. J.A. spoke to his girlfriend on the telephone, and either Johnson or J.A.'s girlfriend's mother chaperoned their dates. Johnson said the couple held hands and J.A. sometimes kissed his girlfriend on the cheek or hugged her while saying goodbye.

Wolfe-Heberle, a Qualified Mental Health Retardation Professional certified through Virginia's Department of Mental Health Retardation and Substance Abuse Services, qualified as an expert in “the cognitive abilities of individuals suffering from mental retardation,” and the trial court allowed her to testify regarding J.A.'s functional capacity and his understanding of sexual acts. For the two-and-one-half years preceding J.A.'s interaction with appellant, Wolfe-Heberle oversaw J.A.'s treatment plan at Blue Ridge. One aspect of Blue Ridge's training plan involved functional assessments of the facility's clients. Wolfe-Heberle classified J.A.'s level of mental retardation as “in the upper end of severe” mental retardation, and she stated that he was not able to live independently. She stated that J.A. lacked the ability to perform complex reasoning or understand complicated logic. Notably, Wolfe-Heberle stated that J.A. was not capable of negotiating. Specifically, she explained:

[J.A.] does not have the ability to negotiate. He doesn't understand that process at all.... I can tell [J.A.], if you do this[,] I will give you a cookie. He understands what a reward is. But, rewards are different than the negotiation process.
[J.A.] does not have the ability to come to me and say, “Kathy, if you do this[,] then I will give you this.” It is not reversed.

Wolfe-Heberle stated that J.A. did not understand the concept of money, except for the fact that he needed “two quarters to get a soda out of the [vending] machine.” According to Wolfe-Heberle, J.A. purchased cans of sodas from a vending machine near the alley where Lamb had seen J.A. and appellant.

Finally, Wolfe-Heberle stated that J.A. did not have an understanding of sex or the nature and consequence of sex acts of any type. J.A. never expressed an interest in sex and never showed any interest in touching of a sexual nature. Wolfe-Heberle testified that J.A. had “no concept or no clue even to use the word ‘penis.’ He does not understand what the word is. So, he is not aware that [the penis has a sexual function].” Wolfe-Heberle stated that for J.A., [t]he penis is used to pee. The penis is not used for sex.” Wolfe-Heberle acknowledged that J.A. participated in Blue Ridge's sexual education program, by attending group discussions about condoms and sexually transmitted diseases, but he [did not] have any understanding of what it mean[t].” During one such session, Wolfe-Heberle showed the group how to put a condom on a cucumber. J.A. “was kind of oblivious to the entire...

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    ...... assume ... the legislature chose, with care, the words it used when it enacted the relevant statute.’ ” Nicholson v. Commonwealth, 56 Va.App. 491, 503, 694 S.E.2d 788, 794 (2010) (omissions in original) (quoting Barr v. Town & Country Properties, Inc., 240 Va. 292, 295, 396 S.E.2d 672, ......
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