Vigil v. Commonwealth, Record No. 0805-16-1

• Decision Date: 26 September 2017
• Docket Number: Record No. 0805-16-1
• Court: Virginia Court of Appeals
• Parties: KENNETH CHARLES VIGIL v. COMMONWEALTH OF VIRGINIA

KENNETH CHARLES VIGIL v. COMMONWEALTH OF VIRGINIA

Record No. 0805-16-1

COURT OF APPEALS OF VIRGINIA

SEPTEMBER 26, 2017

UNPUBLISHED

Present: Judges Humphreys, Decker and Russell

Argued at Virginia Beach, Virginia

MEMORANDUM OPINION^* BY JUDGE MARLA GRAFF DECKER

FROM THE CIRCUIT COURT OF YORK COUNTY

Frederick B. Lowe, Judge Designate

Charles E. Haden for appellant.

John I. Jones, IV, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Kenneth Charles Vigil appeals his three convictions for aggravated sexual battery in violation of Code § 18.2-67.3.¹ He challenges the credibility of the victim's testimony and consequently reasons that the evidence did not support the convictions. He also argues that the trial court erred by admitting hearsay evidence as an adoptive admission under the party admission exception to the rule against hearsay. For the reasons that follow, we affirm the convictions.

I. BACKGROUND²

The indictments charged the appellant with committing the offenses of aggravated sexual battery between April 6, 2001, and June 15, 2003. M.R., the appellant's stepdaughter, testified that he sexually abused her about once a week over the course of approximately one year. She was between ten and twelve years old when the crimes occurred.

M.R. recalled three specific incidents of abuse, which formed the bases for the indictments. The first occurred while she was doing homework on the computer in the bedroom shared by her mother and the appellant. M.R. was sitting in the computer chair, and the appellant entered the room and sat down on the floor beside her. He rubbed her legs and put his fingers into her shorts and then her vagina. M.R. testified that she silently "wish[ed] it would just stop." The appellant eventually got up and left the room.

According to M.R., the second incident occurred when she was lying on her bedroom floor doing homework. She testified that the appellant entered the room and asked her to change out of her pants into shorts. After M.R. complied, he rubbed her legs, put his hand into her shorts, and inserted his finger into her vagina. M.R. explained that the appellant eventually stopped and left the room.

M.R. described a third incident that occurred in the family living room. As on the other occasions, the appellant rubbed her legs, then put his hand into her shorts and his finger into her vagina.

M.R. explained that the three offenses occurred when she and the appellant were alone in the house. She testified that she did not tell anyone about the abuse at the time but specifically explained that she did not report it because she was "very afraid" of the appellant, she was embarrassed, and she "tried to forget it ever . . . happened." She also said that she was concerned that her mother would not believe her.

In 2013, when M.R. was twenty-two years old, she told her boyfriend, Will Smith, about the sexual abuse. At the time, she was spending the weekend at Smith's parents' lake house. After M.R. told Smith, she telephoned her mother, Lisa Vigil, and told her that she had been "sexually abused." When she returned from the weekend, M.R. went to stay with the Smith family rather than to the home in which she lived with the appellant and her mother.

The appellant attempted to call M.R., but she did not answer when she saw his name identified on her cell phone. He eventually made contact with M.R. by using her mother's phone to call her. He told M.R. that he was sorry and that he wanted to talk. She agreed to speak with him in person if her mother was present. When she went to the house for the conversation, the appellant commented to her that Smith "must really be the one" if M.R. was "telling him all of our deepest, darkest secrets." M.R. left without engaging in any additional conversation.

Approximately two weeks later, M.R. contacted the police. Investigator Byron Evans with the York County Sheriff's Office testified that M.R. initially represented to him that the abuse occurred two or three times a week over the course of a year. According to Evans, she was unable to give him many details of the occurrences, but he explained that this was "typical" of child victims of sexual assault. The written statement that M.R. gave the police echoed hertestimony with the exception of describing the third room in which the abuse occurred as the "den" instead of the "living room."

During cross-examination, the appellant attempted to impeach M.R.'s credibility. The journals that she had kept when she was younger did not contain any mention of sexual abuse. In addition, around the time that the abuse occurred, M.R. wrote in an essay that her "family [was] the greatest gift" that she "could ever have received." At the preliminary hearing, M.R. referred to what happened as a "story," but at trial she explained that she had meant the "story of [her] life."

Sherrie Hall, a friend of the victim's mother, testified that after M.R. reported the abuse, Hall received a telephone call from Lisa Vigil, M.R.'s mother. Hall testified to the following description of the phone conversation:

Lisa[, M.R.'s mother,] called me and said, I need to talk to you, and she was bawling, crying.

And I said, [referencing a different child,] Is it your daughter? Is she sick again in the hospital? . . . .

. . . .

And she goes - she was bawling, crying, and she said, Ken[, the appellant,] molested my daughter.

And I said, Does Ken know you're talking to me?

And he goes, Hey, Sherrie.

And I said, Hey, Ken.

And then she proceeded to tell me that she didn't know what to do. She was upset.

She was scared and then wanted to know if she should call my mom, because my mom had been through it, like when I had been abused.

Hall recognized the appellant's voice, and according to Hall at no point during the call did the appellant deny the accusation. The trial court admitted Hall's testimony over the appellant's objection.

Karen Rivera, Hall's mother, also testified. Lisa Vigil spoke to her "many times" about the accusations. According to Rivera, during one of these telephone conversations, Lisa Vigil told her that the appellant admitted to molesting M.R. and that "he was very sorry." In a subsequent conversation with Rivera, however, M.R.'s mother denied that the appellant had done "anything" and that she had ever said otherwise. The appellant did not object to Rivera's testimony.

M.R.'s friend Amber Anesqua testified that M.R. told her that she had been sexually abused when she was ten years old. Although Anesqua did not specify when M.R. told her about the abuse, Anesqua testified that before 2013, she thought that the appellant and M.R. had a "[t]ypical father[-]daughter relationship." According to Anesqua, M.R. researched child sexual abuse after she talked to the police.

The appellant testified on his own behalf. He denied having any inappropriate contact with M.R. He said that he merely apologized to M.R. "if" he had "done anything to make [her] uncomfortable."

The appellant's wife also testified in his defense. She explained that during the time period of the alleged offenses, the only computer in the house was in the home office, not the master bedroom.³ The victim's mother also said that, despite M.R.'s statements to the contrary, the appellant was not home alone with M.R. "two or three times a week" during that period. According to the mother, she saw nothing in the relationship between the appellant and M.R. toindicate that M.R. was fearful of him or that he had sexually assaulted her. M.R.'s mother also denied telling Hall that the appellant had molested her daughter. She recalled phoning Hall to tell her about the allegation but denied that her husband listened to the conversation. Regarding her conversations with Rivera, the victim's mother also denied telling her that the appellant had admitted to molesting M.R.

The trial court convicted the appellant of three counts of aggravated sexual battery. He was sentenced to a total of forty-five years of incarceration, with thirty-six years suspended.

II. ANALYSIS

The appellant argues that M.R.'s testimony was inherently incredible and therefore that the evidence did not support his convictions. He also contends that the trial court erred by admitting Sherrie Hall's testimony about her phone conversation with the victim's mother.

A. Sufficiency of the Evidence

The appellant argues that the evidence was insufficient to prove that he committed aggravated sexual battery against his stepdaughter, M.R., because her testimony was incredible. In support of his claim, the appellant relies on inconsistencies in M.R.'s testimony, her failure to remember more details, and her significant delay in reporting the offenses.

The appellant was convicted of aggravated sexual battery against a minor under thirteen years of age in violation of Code § 18.2-67.3.⁴ Sexual battery, in pertinent part, is defined as "an act committed with the intent to sexually molest, arouse, or gratify any person" during which the "accused intentionally touches the complaining witness's intimate parts." Code §§ 18.2-67.4, -67.10(6).

On appeal, this Court reviews a challenge to the sufficiency of the evidence under well-established legal principles. In our analysis, we consider "the evidence and all reasonable inferences fairly deducible therefrom in the light most favorable to the Commonwealth." Molina v. Commonwealth, 272 Va. 666, 675, 636 S.E.2d 470, 475 (2006) (quoting Ward v. Commonwealth, 264 Va. 648, 654, 570 S.E.2d 827, 831 (2002)). The appellant was tried by the circuit court, sitting without a jury. Consequently, that court was the fact finder, and its judgment is afforded the "same weight as a jury verdict." Goode v. Commonwealth, 52 Va. App. 380, 384, 663 S.E.2d 532, 534 (2008) (quoting Saunders v. Commonwealth, 242 Va. 107, 113, 406 S.E.2d 39, 42 (1991)). This Court will reverse a conviction "only if the trial court's decision is 'plainly wrong or without evidence to support it.'" Kelly v....