Nutter v. Commonwealth
| Docket Number | 1275-21-3 |
| Decision Date | 10 January 2023 |
| Parties | JAMES ANDREW NUTTER, S/K/A JAMES ANDREW NUTTER, JR. v. COMMONWEALTH OF VIRGINIA |
| Court | Virginia Court of Appeals |
FROM THE CIRCUIT COURT OF ROANOKE COUNTY James R. Swanson, Judge
(David A. Robinson; BSR Legal Group, on brief), for appellant. Appellant submitting on brief.
Craig W. Stallard, Senior Assistant Attorney General (Jason S Miyares, Attorney General, on brief), for appellee.
Present: Judges Beales, Malveaux and Causey Argued at Salem Virginia
James Nutter ("appellant") was convicted in the Roanoke County Circuit Court ("trial court") of rape sodomy, and assault and battery.[1] On appeal, appellant argues sixteen assignments of error.[2] We hold that there is no merit to the assignments of error relating to the sufficiency of the evidence to sustain the convictions for sodomy and rape, the trial court's decision to admit a police officer's testimony about the victim's complaint of the attack, and the trial court's determination of sentence. We further find that the remaining assignments of error are waived due to appellant's failure to adequately brief them in accordance with the rules of this Court. See Rule 5A:20(e). Thus, we hold that appellant has waived those arguments. Therefore, we affirm the judgment of the trial court.
BACKGROUND[3]
On the evening of June 28, 2017, B.H.[4] was walking on Williamson Road in Roanoke looking for a "date."[5] Roanoke Police Sergeant Jason Hicks while on patrol saw and suspected that B.H. was prostituting. Hicks observed her cross the street, approach a white truck, get inside and ride away. Appellant, who knew B.H. from four prior instances of prostitution involving oral sex, was the driver of the white Ford pickup truck.
Appellant drove to the Water Authority lot, where he and B.H. had previous sexual encounters, but the gate blocked the entrance. Therefore, they went to a remote picnic area in Ingersoll Rand Park. They exited and went to the back of the truck. Appellant lowered the tailgate of the truck.
He pulled out his wallet, looked inside it, then put it back in his pocket. He commented that he knew he "had it" somewhere and went to the driver's compartment of the truck. B.H. believed that he was getting money from the passenger compartment to pay her for oral sex. When appellant returned to the rear of the truck, he struck B.H. in the face with his fist while holding a hard object. She testified that the force of the blow knocked her to the ground. Using his legs, appellant pinned B.H.'s arms to the ground. Appellant jerked B.H's pants and underwear off her body. Appellant then penetrated B.H's vagina with his penis. The penetration was against her will. B.H. said that she did not resist because she was scared. Appellant ordered her to perform oral sex. B.H. said that she complied because she thought that if she refused appellant would hurt her more than he already had. After about an hour of rough sex, appellant ejaculated outside of B.H. and said, "I won't kill you if you don't turn me in." Appellant wiped himself with paper towels and dropped them on the ground.
B.H. re-entered the truck with appellant because she was unfamiliar with the surroundings. Appellant apologized for what he did and explained to her that he had been robbed earlier that week by other people. Appellant dropped off B.H. at a 7-Eleven on Williamson Road.[6] As she passed the front of the truck to enter the store, B.H. mentally noted the license plate number on appellant's vehicle.
Inside the store, B.H. tried to call her boyfriend and another person but could not reach either of them. She wrote down appellant's license plate number on a piece of paper and asked the store clerk to let callers for B.H. know that she had been beaten and raped. She left the store and started walking.
Sergeant Hicks saw B.H. near the 7-Eleven, "crying, upset, and bleeding everywhere." Hicks recognized her from earlier, offered to help, and asked what happened. B.H. gave him appellant's license plate number and told him that she had been beaten and raped. B.H. was first reluctant to do so, however, she agreed to pursue medical attention at Hicks' insistence. An ambulance transported B.H. to the hospital, where she stayed until the next day. She received stitches to repair a laceration in her lip. Examination revealed bruising to her arms and back. She also complained that her vaginal area was sore and her head hurt. B.H. described the attack to the sexual assault nurse who performed an examination and collected physical evidence from her body.
Hicks testified that B.H.'s face was bleeding when he saw her. He further testified that there was no indication that she was under the influence of any substance or experiencing a mental health crisis. At trial, the Commonwealth introduced photographs of the physical injuries B.H. suffered in the attack. DNA evidence proved, and appellant stipulated, that his genetic material was collected from B.H.'s vagina in the examination.
B.H. admitted that she consumed about one-tenth of a gram of heroin on the morning of her assault but denied being under the influence of drugs that night. A police officer who took her statement at the hospital testified that, in the two hours he was with her, he saw no signs that B.H. was under the influence of drugs or alcohol. A detective also interviewed B.H. at the hospital and similarly indicated that she did not appear intoxicated or in need of mental health treatment. At the scene of the attack in Ingersoll Rand Park, the police found some discarded paper towels and a knife-sharpening device made of heavy-duty plastic. The device was about the same weight as a cell phone.
Appellant testified on his own behalf at trial. He testified that he recognized B.H. from prior sexual encounters and picked her up for a "date." As they drove away in his truck, B.H. agreed to perform oral sex for thirty dollars rather than her customary fee of forty dollars because appellant claimed he had only thirty dollars. Appellant testified that B.H. was agreeable to this arrangement because of their history.
Once they arrived at the park, appellant claimed that he gave B.H. thirty dollars and she performed oral sex on him. Appellant testified that she agreed to have vaginal sex in exchange for another twenty dollars. Afterward, appellant ejaculated on the ground, and cleaned himself with some wipes and toilet paper. Appellant then told B.H. that he did not have the additional twenty dollars in cash, nor did he have enough money in the bank to pay her. B.H. became upset and demanded that he pay her the money. According to appellant, B.H. said that he would "regret it" if he did not pay her. Appellant testified that the quarrel culminated when he "mushed" B.H., or struck her with the palm of his hand, and she fell backwards on the ground. Appellant also testified that he then drove away, leaving B.H. at the park at about 9:00 p.m.
At the conclusion of all the evidence, the trial court acknowledged that there were "evidentiary discrepancies" and "credibility issues," but found that B.H.'s testimony was "detailed and for the most part persuasive." The trial court did not believe appellant's account. The trial court found that the Commonwealth had proven beyond a reasonable doubt that appellant was guilty of rape, sodomy, and assault and battery. The court sentenced appellant to forty-five years and twelve months of incarceration with eighteen years suspended.
In Assignments of Error 1 and 2, appellant challenges the sufficiency of the evidence to sustain his convictions for rape and sodomy. "On review of the sufficiency of the evidence, 'the judgment of the trial court is presumed correct and will not be disturbed unless it is plainly wrong or without evidence to support it.'" Ingram v Commonwealth, 74 Va.App. 59, 76 (2021) (quoting Smith v. Commonwealth, 296 Va. 450, 460 (2018)). The question on appeal is "whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Yoder v Commonwealth, 298 Va. 180, 182 (2019). "If there is evidentiary support for the conviction, 'the reviewing court is not permitted to substitute its own judgment, even if its opinion might differ from the conclusions reached by the finder of fact at the trial.'" Chavez v. Commonwealth, 69 Va.App. 149, 161 (2018) (quoting Banks v. Commonwealth, 67 Va.App. 273, 288 (2017)).
To sustain appellant's conviction for rape and sodomy, the Commonwealth needed to prove that the sexual acts occurred against B.H.'s will "by force, threat or intimidation."[7] Challenging the sufficiency of the evidence to prove his convictions, appellant argues that B.H.'s testimony that the sex was not consensual was inherently incredible. In finding appellant guilty of the charged offenses, however, the trial court, sitting as the trier of fact, accepted the victim's testimony that the sex was not consensual. Sexual offenses are, "at core, . . . offense[s] against the will and consent of the victim." Davison v. Commonwealth, 69 Va.App. 321, 330 (2018) (quoting Molina v. Commonwealth, 47 Va.App. 338, 357, aff'd, 272 Va. 666 (2006)). "The fact finder, who has the opportunity to see and hear the witnesses, has the sole responsibility to determine their credibility, the weight to be given their testimony, and the inferences to be drawn from proven facts." Rams v. Commonwealth, 70 Va.App. 12, 26-27 (2019) (quoting Hamilton v. Commonwealth, 279 Va. 94, 105 (2010)). "When 'credibility issues have been resolved by the [fact finder] in favor of the Commonwealth, those findings will not be disturbed on...
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