Ward v. Commonwealth Of Va.
| Decision Date | 08 March 2011 |
| Docket Number | Record No. 0071-10-2 |
| Parties | ROBERT JAMES WARD v. COMMONWEALTH OF VIRGINIA |
| Court | Court of Appeals of Virginia |
Present: Chief Judge Felton, Judges Elder and Alston
Argued at Richmond, Virginia
FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
Ronald Hur, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.
Josephine F. Whalen, Assistant Attorney General II (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.
Following a bench trial, Robert James Ward ("appellant") was convicted of carnal knowledge of a brute animal in violation of Code § 18.2-361. Appellant contends the trial court erred in finding that there was sufficient evidence to corroborate his extrajudicial confession that he digitally penetrated a dog's vagina and caused the dog to lick his penis and anus and that those acts constituted carnal knowledge of a brute animal in violation of Code § 18.2-361. For the following reasons, we affirm the judgment of the trial court.
"Where an appellant challenges the sufficiency of the evidence, we review the evidence in the light most favorable to the party prevailing below, and we will affirm the judgment of the trial court unless plainly wrong or without evidence to support it." Aldridge v. Commonwealth, 44 Va. App. 618, 648, 606 S.E.2d 539, 554 (2004). "'In determining whether the trial courtmade an error of law, we review the trial court's statutory interpretations and legal conclusions de novo."" Ngomondjami v. Commonwealth, 54 Va. App. 310, 319, 678 S.E.2d 281, 286 (2009) (quoting Auer v. Commonwealth, 46 Va. App. 637, 643, 621 S.E.2d 140, 143 (2005)).
Appellant lived with his adult daughter. Sometime prior to October 1, 2008, appellant's daughter adopted a six-month-old female German Shepherd mixed-breed dog and brought it home to live with her.1 Appellant's daughter was typically absent from the home approximately fourteen hours a day during the workweek. Appellant was home alone with the dog during that time period.
Appellant's daughter testified that when she first adopted the dog it was very active, greeted her at the door, and had an excellent appetite. However, in November 2008, she noticed that the dog started constantly having trouble with its "anal glands." As a result, she had to repeatedly take it to a veterinarian. By December 2008, appellant's daughter noticed a significant change in the dog's behavior and feeding habits. She testified that the dog would "get in moods" and became "distant." It stopped greeting her at the door when she returned home. She further testified that it stopped eating and drinking when she was not at home and that it would only eat when she was present, and then only after she changed the food and water in the dog's bowls.
On May 18, 2009, appellant told his daughter that he had "done something" and needed to talk to her. He told her that he had been "inappropriately touching" the dog. When he told her that he would "insert," she interrupted him and called the sheriffs department. A deputy sheriff arrived shortly thereafter. Appellant told the deputy that "[h]e would stick his finger in the dog's vagina, and also had the dog lick his penis and 'asshole' for the past five months, about three times a week."Appellant was thereafter arrested and charged with carnal knowledge of a brute animal in violation of Code § 18.2-361.
At trial, the deputy told the trial court what appellant told him he had done to the dog. Appellant's daughter testified that appellant told her he had "inappropriately touch[ed]" the dog. She also testified as to her observations of the dog's behavior before and after appellant was removed from the home. She testified that following appellant's removal from the residence, the dog's behavior returned to how it was when she first adopted it, that it no longer had trouble eating or drinking, and that it became more relaxed.
Appellant argued that no evidence presented at trial corroborated his extrajudicial confession that he digitally penetrated the dog's vagina and that the dog licked his penis and anus, i.e., that the corpus delicti had not been proved.2 He further argued that "carnal knowledge" under Code § 18.2-361 required proof of sexual penetration and that, even if his confession to the deputy was believed, his conduct with the dog did not come within the conduct the General Assembly intended to punish in that statute.
After considering the evidence and argument of counsel, the trial court found that appellant's daughter's testimony, describing the dog's changes in behavior, its eating pattern, and the medical issues with its "anal glands," sufficiently corroborated appellant's extrajudicial statements, and thus, established the required corpus delicti. It also found that "carnal knowledge" as used in Code § 18.2-361 included "any sexual bodily connection," citing Shull v. Commonwealth, 16 Va. App. 667, 431 S.E.2d 924 (1993), and its progeny. It found from the evidence presented at trial that appellant digitally penetrated the dog's vagina, that he caused the dog to lick his penis and anus, and that his conduct established "sexual bodily connection." Itheld that appellant's actions constituted "carnally knows in any manner any brute animal" within the meaning of Code § 18.2-361 and convicted appellant of that offense. This appeal followed.
Appellant contends the trial court erred in finding the evidence established his guilt beyond a reasonable doubt. He argues that the evidence presented at trial did not establish the corpus delicti and that, absent sufficient evidence corroborating his extrajudicial confession, the trial court erred in convicting him.
In any criminal prosecution, the Commonwealth must prove the corpus delicti, "that is, the fact that the crime charged has been actually perpetrated." Cherrix v. Commonwealth, 257 Va. 292, 305, 513 S.E.2d 642, 651 (1999). However, when an accused has fully confessed to commission of the crime, "only slight corroboration of the confession is required to establish corpus delicti beyond a reasonable doubt." Id. (emphasis added); accord Clozza v. Commonwealth, 228 Va. 124, 133, 321 S.E.2d 273, 279 (1984); Campbell v. Commonwealth, 194 Va. 825, 833, 75 S.E.2d 468, 473 (1953). While an accused cannot be convicted based solely on his or her confession, Watkins v. Commonwealth, 238 Va. 341, 348, 385 S.E.2d 50, 54 (1989). In addition, "corroborative facts supporting the corpus delicti may be furnished by circumstantial evidence as readily as by direct evidence." Id. at 349, 385 S.E.2d at 54 (citing Epperly v. Commonwealth, 224 Va. 214, 229, 294 S.E.2d 882, 891 (1982)).
Magruder v. Commonwealth, 275 Va. 283, 307-08, 657 S.E.2d 113, 126 (2008), vacated and remanded on other grounds sub nom. Briscoe v. Virginia, 130 S. Ct. 1316 (2010), aff'd in part, rev'd in part on remand sub nom. Cypress v. Commonwealth, 280 Va. 305, 699 S.E.2d 206 (2010).
Here, the record reflects that in November 2008 the dog's owner, appellant's daughter, noticed that the dog began having trouble with its "anal glands," requiring her to take it to theveterinarian on multiple occasions. Beginning in December 2008, she observed that the dog demonstrated behavioral and eating changes during that same time period. The dog stopped greeting her when she came home from work at night, and would only eat and drink when she was present, and then only after the food and water bowls had been emptied and refilled. The dog also became jumpy when approached while it was eating. During that same time period, appellant was the only person in the house and was alone with the dog for ten or more hours each day while his daughter was away at work.
Unlike the situation presented in Phillips v. Commonwealth, 202 Va. 207, 116 S.E.2d 282 (1960), where the only evidence corroborating Phillips' extrajudicial confession of sodomy was that he was at a particular location at the time the crime was alleged to have occurred, here, not only was appellant the only person present at the house with the dog when his daughter was at work, but during that same time period the dog developed problems with its "anal glands" and demonstrated odd behavioral and eating patterns. Those problems ceased almost immediately after appellant was removed from the house.3
From the record on appeal, we conclude that the trial court did not err in its factual finding that, three times a week over the course of about five months, appellant digitally penetrated the dog's vagina.4 Accordingly, we conclude the trial court did not err in finding theevidence presented at trial sufficiently corroborated appellant's extrajudicial confession to establish the corpus delicti of the charged offense.
Appellant also contends the trial court erred in finding that he "carnally knew" a brute animal as prohibited by Code § 18.2-361(A). He argues that digital penetration of a dog's vagina does not constitute "carnal knowledge" under Code § 18.2-361(A). He asserts that "carnal knowledge" under that statute requires evidence of penetration of an animal by the male sexual organ. We disagree.
"[U]nder basic rules of statutory construction, we determine the General Assembly's intent from the words contained in the statute." Elliott v. Commonwealth, 277 Va. 457, 463, 675 S.E.2d 178, 182 (2009). "In accordance with the principles of statutory construction of penal statutes, a court must not add to the words of the statute nor ignore the words of the statute and must strictly construe the statute and limit its application to cases falling clearly within the statute." Farrakhan v....
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