Ortiz v. Com.

• Decision Date: 31 October 2008
• Docket Number: Record No. 072449.
• Citation: 667 S.E.2d 751,276 Va. 705
• Court: Virginia Supreme Court
• Parties: Sebastian ORTIZ v. COMMONWEALTH of Virginia.

667 S.E.2d 751

276 Va. 705

Sebastian ORTIZ v. COMMONWEALTH of Virginia.

Record No. 072449.

Supreme Court of Virginia.

October 31, 2008.

Nader Hasan, Fairfax, for appellant.

Robert H. Anderson III, Senior Asst. Atty. Gen. (Robert F. McDonnell, Atty. Gen., on brief), for appellee.

Present: All the Justices.

OPINION BY Justice LEROY F. MILLETTE, JR.

Sebastian Ortiz was convicted by a jury in the Circuit Court of Arlington County of one count of rape of a female child under the age of thirteen in violation of Code § 18.2-61. Ortiz appealed his conviction to the Court of Appeals, which denied Ortiz' petition in an unpublished order. Ortiz v. Commonwealth, Record No. 0587-07-4 (October 30, 2007). We awarded Ortiz this appeal in which he challenges: (1) the trial court's refusal to appoint an expert witness on the suggestibility of children and confirmatory bias, (2) the admission of evidence of subsequent other crimes or bad acts, (3) the exclusion of the victim's prior allegations of sexual abuse against a third party, (4) the victim's competency to testify, (5) the amendment of the indictment on which Ortiz was found guilty, (6) the trial court's denial of Ortiz' motion for a continuance upon the amendment of the indictment, and (7) the sufficiency of the evidence.

BACKGROUND

Applying well-established principles of appellate review, we present the evidence in the light most favorable to the Commonwealth, the prevailing party below. Porter v. Commonwealth, 276 Va. 203, 215-16, 661 S.E.2d 415, 419 (2008); Bishop v. Commonwealth, 275 Va. 9, 11, 654 S.E.2d 906, 907 (2008).

The victim (the child), who was born on January 6, 1998, lived in Arlington County with her mother (the mother) and other family members. Ortiz is the maternal step-grandfather of the child. Ortiz and his wife (the grandmother) also lived in Arlington County until 2005 when they moved to Greenbelt, Maryland.

The child spent substantial time with Ortiz and the grandmother at their Arlington residence and, after 2005, at their Maryland residence. Ortiz routinely picked up the child Fridays after school, then took the grandmother to work in Washington, D.C. Ortiz was alone with the child for several hours until the grandmother returned from work at 10 p.m.

In April 2006, the mother noticed that the child was bringing home new shoes, new clothing, school supplies and sometimes money after spending the weekend at Ortiz' residence. When the mother pressed the child on the reason for her new possessions, the child told the mother that Ortiz had touched her and put "his thing on her" while the grandmother was not there. The next day, April 19, 2006, the mother reported the alleged abuse to Detective Borelli of the Special Victims Unit of the Arlington County Police Department.

Based upon an interview with the child, which included her description of the sex acts and a picture she drew as explanation, Detective Borelli concluded that the sex acts involved penetration. Ortiz was arrested on April 24, 2006.

During an interview at the Arlington Police Station with Detective Borelli and another officer who acted as an interpreter, Ortiz was told, falsely, that the police had retrieved his DNA from the child's person. Ortiz' explanation was that maybe the child had sex with him while he was drunk and asleep because he was often drunk on weekends.

On April 27, 2006, after obtaining consent from the grandmother, detectives conducted a search of Ortiz' Maryland residence. In a garbage can, the detectives found a receipt for a vaginal cream product from a Washington, D.C. large-chain drugstore. The receipt, dated October 7, 2005 at 5:06 p.m., bore the name, "Ms. Sebastian Ortiz." In addition, the detectives found two pornographic videotapes. The evidence seized by the detectives corroborated the child's earlier statements that she had viewed pornographic tapes and that Ortiz had put cream on her vagina.

On June 19, 2006, a grand jury indicted Ortiz on two counts of rape of a female child under the age of thirteen occurring in Arlington County in violation of Code § 18.2-61. The first indictment originally encompassed the period from January 1, 2003 to May 31, 2003, but was amended during Ortiz' case-in-chief, over his objection, to include the period from January 1, 2003 to May 31, 2004. The second indictment originally included June 1, 2003 to December 31, 2003, but was also amended during Ortiz' case-in-chief, over his objection, to include June 1, 2004 to December 31, 2005.

At trial, the child testified that Ortiz began to sexually abuse her when she was four or five years old and continued until she was eight, and that the acts of abuse took place in Ortiz' former Arlington residence as well as at his current Maryland residence. The child's testimony included the following details: Ortiz put cream on her private parts, sprayed something from a bottle on her private part, put his penis in her front private part, and put something white that came out of his penis on her bellybutton. The child further testified that Ortiz put "this baby oil thing" on his penis and sometimes when the child went to the bathroom afterwards "something red came out." Ortiz also showed her movies of "grownups doing something" without clothes on. The evidence also included the child's diary, wherein she wrote, "I wish my dad never do sex with me because I always feel [sic] to do S-EX with my dad." The child referred only to Ortiz as "dad."

The Commonwealth also introduced the results of a sexual assault nurse examination (SANE exam) conducted on the child. The SANE exam revealed a "notch" or sharp demarcation of the tissue that opened in the shape of a "V" at about four o'clock on the child's hymen, which could have been consistent with penetration. The conclusion of the SANE report was that the child's genital findings were abnormal.

Ortiz testified that he and the grandmother had taken care of the child since she was born, giving her "support and maintenance," food, furniture, and clothing. Additionally, Ortiz testified that when he picked up the child on Fridays, he always told the grandmother to go with him "so that [he] would not be accused of anything." When asked by the Commonwealth if Ortiz was ever alone with the child, he replied, "No. I never was alone with her. . . . No, I was never alone with [the child]. I don't know why you keep accusing me of that."

At the conclusion of Ortiz' trial, the jury found Ortiz guilty of raping the child, in violation of Code § 18.2-61, in accordance with the amended second indictment covering the time frame of June 1, 2004 to December 31, 2005. The jury's sentence of twenty years' imprisonment was imposed by the trial court as a final judgment. Ortiz' appeal to this Court followed the Court of Appeals' denial of his petition for appeal.

DISCUSSION

Standard of Review

We will address each of Ortiz' assignments of error in turn. As each assignment of error reviewed on the merits is governed by the same standard of review, we set forth the standard to be applied throughout our analysis at the outset. We will apply an abuse of discretion standard upon our review of the following issues that Ortiz raises: (1) motion for continuance — see Haugen v. Shenandoah Valley Department of Social Services, 274 Va. 27, 34, 645 S.E.2d 261, 265 (2007); (2) competence of the child witness — see Mackall v. Commonwealth, 236 Va. 240, 253, 372 S.E.2d 759, 767 (1988); and admissibility of certain evidence — see Gillespie v. Commonwealth, 272 Va. 753, 760, 636 S.E.2d 430, 434 (2006); see also Dagner v. Anderson, 274 Va. 678, 685, 651 S.E.2d 640, 644 (2007).

Appointment of Expert

Ortiz filed pretrial motions asking the trial court to appoint Dr. Matthew H. Scullin as an expert witness and to permit Dr. Scullin to educate the jury on children's suggestibility, suggestive interviewing techniques, and confirmatory bias, which Ortiz' counsel described as the impact on a child when he or she is interviewed many times about the same thing. Ortiz argued that the jury had insufficient knowledge about these phenomena.

The trial court refused to appoint Dr. Scullin and denied Ortiz' motion to call Dr. Scullin as an expert witness, holding, "I don't think [this type of information is] beyond the realm of common experience of the jurors who are highly educated in this jurisdiction." At trial, the court denied Ortiz' renewed motion to call Dr. Scullin.

On appeal to this Court, Ortiz contends the Court of Appeals erred by ruling that he failed to show a particularized need for an expert witness and that the evidence did not show his need for an expert to present an adequate defense. Ortiz argues that without expert assistance, he was denied the opportunity to fairly and fully cross-examine the Commonwealth's witnesses. Ortiz also argues that his expert witness would also have had the opportunity to educate the jury about Ortiz' theory that he was falsely accused due to suggestive interviewing techniques that led to the child's fabricated account of events.

Ortiz' assignment of error relates only to the trial court's denial of his motion to appoint Dr. Scullin as an expert. It does not relate to the trial court's denial of his motion to permit Dr. Scullin to testify. Only errors assigned in Ortiz' petition for appeal will be noticed by this Court. Rule 5:17(c). Ortiz has therefore waived his argument regarding the exclusion of Dr. Scullin's testimony.

The issue whether the trial court erred by refusing to appoint Dr. Scullin is moot based on the fact that Ortiz ultimately retained Dr. Scullin and had him review all of the interviews in this matter. Ortiz' retention of Dr. Scullin obviated any need for his appointment by the trial court. Further, Ortiz did not argue any prejudice regarding the amount of time he had to obtain the expert, nor did he request a continuance to provide additional time for his expert to prepare. Thus, we will not consider this...