Welch v. Commonwealth

• Decision Date: 21 April 2006
• Docket Number: Record No. 051563.
• Citation: 628 S.E.2d 340
• Court: Virginia Supreme Court
• Parties: James Robert WELCH, Jr. v. COMMONWEALTH OF VIRGINIA.

628 S.E.2d 340

James Robert WELCH, Jr. v. COMMONWEALTH OF VIRGINIA.

Record No. 051563.

Supreme Court of Virginia.

April 21, 2006.

Peter L. Boatner, Senior Assistant Public Defender (Office of the Public Defender, on brief), for appellant.

Leah A. Darron, Assistant Attorney General (Judith Williams Jagdmann, Attorney General, on brief), for appellee.

Present: HASSELL, C.J., LACY, KEENAN, KOONTZ, KINSER, and LEMONS, JJ., and COMPTON,^* S.J.

OPINION BY Justice DONALD W. LEMONS.

In this appeal, we consider whether the Commonwealth's evidence of a "sexual relationship" between James R. Welch, Jr. and a 14-year-old girl is sufficient to support his conviction under Code § 18.2-63 for carnal knowledge of a child. For the reasons stated below, we will reverse the judgment of the Court of Appeals of Virginia.

I. Facts and Proceedings Below

At trial, the Commonwealth's evidence established that James Welch, a 27-year-old man, had engaged in unspecified "sexual relations" with Amanda, a 14-year-old babysitter for his daughter. At the close of the Commonwealth's case-in-chief, the defendant moved to strike the evidence because the Commonwealth failed to carry its burden to make a "specific showing of certain kinds of acts" constituting carnal knowledge. The trial court overruled the motion, stating: "[I]n all candor, it, probably, would have been better if it had been more particular, more graphic, if you will; this description of what they did. But, nonetheless . . . I'm gonna [attribute] to the term `sexual relations' what that term means. And — and, unfortunately, there's no reason for me to think that this child doesn't know what that term means." Subsequently, after Welch presented his evidence, the trial court overruled a renewed motion to strike. Welch was convicted and was sentenced to five years incarceration.

Welch appealed to the Court of Appeals of Virginia, where his conviction was affirmed in an unpublished opinion. Welch v. Commonwealth, Record No. 1427-04-3, slip op. at 5 (June 28, 2005). Welch appeals to this Court upon one assignment of error: "the Virginia Court of Appeals erred in finding that the acts possibly included in the term `sexual relations' are synonymous with the legal definition of `sexual intercourse.' "

II. Analysis

A. Standard of Review

Welch challenges the sufficiency of the evidence to support his conviction. It is well established that, on appeal, this Court must view the evidence and all rsonable inferences flowing therefrom in the light most favorable to the prevailing party at trial, here the Commonwealth. Commonwealth v. Norman, 268 Va. 539, 545-46, 604 S.E.2d 82, 85 (2004); Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). We will affirm the trial court's judgment unless it is plainly wrong or without evidence to support it. Code § 8.01-680; Barrett v. Commonwealth, 268 Va. 170, 179, 597 S.E.2d 104, 108 (2004).

B. Evidence Presented at Trial

The Commonwealth's case-in-chief at trial consisted of testimony provided by Amanda and Investigator Jones. Amanda testified that she had been "dating" Welch. When the Commonwealth asked her if she had a "sexual relationship" with Welch, a term used by the Commonwealth throughout its direct examination of Amanda, she responded affirmatively:

Q: Did you have any sexual relationship with Mr. Welch?

A: Yes, sir.

Q: At that location?

A: Yes, sir.

Q: Now, how many times would you have had a sexual relationship with him, at that location in Augusta?

A: Over twenty.

At no point during Amanda's testimony did the Commonwealth ask her to define what she understood to be a "sexual relationship."

Investigator Candace L. Jones' notably brief testimony simply established that she had obtained letters between Welch and Amanda from the Commonwealth's Attorney's office, and that, when she confronted Welch during her investigation, Welch denied being sexually intimate with Amanda. Significantly, there was no testimony about the content of the letters and they were not admitted into evidence. The Commonwealth rested its case after Jones' testimony.

During the defendant's case-in-chief, the Commonwealth elicited testimony from Amanda's mother on cross-examination that Welch admitted to her that he was "having relations" with Amanda. When pressed about what this meant, the following exchange occurred:

Q: And did he — what did he tell you, exactly, when he said "he's having relations"? Did he tell you as to whether they were having sex together?

A: No. He said just what I had suspected was true.

Q: And what did you suspect?

A: That they were having sexual relations.

* * *

Q: Okay. All right. And he did not give you any details as to how he would have sexual relations with your daughter?

A: No, he did not.

Welch testified on his own behalf, and denied having a "sexual relationship" and "being with" with Amanda. During cross-examination of Welch, the Commonwealth introduced into evidence one letter written by Welch to Amanda during his incarceration that stated in part:

Well, I was doing fine till someone got into my s* *t, and read your letter to me. Then Ronnie talked to one of the wifes [sic] of one of the guys on my block . . . and told her I was a baby rapist so she told her husband and he told the whole jail that you and I were f* *king now I don't think I'll ever get out cause everyone is trying to kill me . . . I do love you and even my last thought will be of you and my last breath will say your name, Amanda.

In closing arguments, the Commonwealth asserted that the testimony provided by Amanda and the defendant's "confession" to Amanda's mother were sufficient to support the conviction.

C. Carnal Knowledge Statute

Welch was convicted under Code § 18.2-63 which provides:

If any person carnally knows, without the use of force, a child thirteen years of age or older but under fifteen years of age, such person shall be guilty of a Class 4 felony. . . For the purposes of this section. . . (ii) "carnal knowledge" includes the acts of sexual intercourse, cunnilingus, fellatio, anallingus, anal intercourse, and animate and inanimate object sexual penetration.

It is well settled that penal statutes are strictly construed against the Commonwealth and in favor of a citizen's liberty. Martin v. Commonwealth, 224 Va. 298, 300, 295 S.E.2d 890, 892 (1982) (citing Cox v. Commonwealth, 220 Va. 22, 25, 255 S.E.2d 462, 464 (1979)). "Such statutes may not be extended by implication; they must be applied to cases clearly described by the language used." Id. (citing Price v. Commonwealth, 209 Va. 383, 385-86, 164 S.E.2d 676, 678 (1968)). Because "carnal knowledge" is defined by particular acts in the statute, Welch's conviction can stand only if the facts proven by the Commonwealth satisfy the elements of one or more of those specified acts. The Commonwealth conceded that the act in question in this case was sexual intercourse.

The elements constituting certain acts of "carnal knowledge" are well defined in our case law. A common element in each act, whether intercourse or sodomy, is that the Commonwealth has the burden to prove beyond a reasonable doubt that penetration, however slight, has occurred. See e.g., Moore v. Commonwealth, 254 Va. 184, 189, 491 S.E.2d 739, 741 (1997) ("[I]t is universally held that under an indictment charging statutory rape of a child . . . the prosecution must prove that there has been an actual penetration to some extent of the male sexual organ into the female sexual organ") (citing McCall v. Commonwealth, 192 Va. 422, 426, 65 S.E.2d 540, 542 (1951)); Horton v. Commonwealth, 255 Va. 606, 613, 499 S.E.2d 258, 261-62 (1998) (to prove cunnilingus, the Commonwealth must prove that there was "penetration of any portion of the vulva" by the mouth or tongue); Ashby v. Commonwealth, 208 Va. 443, 444, 158 S.E.2d 657, 658 (1968) (testimony that the boy placed his mouth "on" defendant's penis did not establish that the penis was "in" the boy's mouth which is required to prove the penetration element of fellatio).

As the foregoing cases illustrate, typically appeals challenging the sufficiency of the evidence under the carnal...