Wilson v. Com.

• Decision Date: 12 July 2005
• Docket Number: Record No. 1113-04-1.
• Citation: 615 S.E.2d 500,46 Va. App. 73
• Parties: Wilfred Decourcey WILSON, Sr. v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

615 S.E.2d 500

46 Va. App. 73

Wilfred Decourcey WILSON, Sr. v. COMMONWEALTH of Virginia.

Record No. 1113-04-1.

Court of Appeals of Virginia, Chesapeake.

July 12, 2005.

COPYRIGHT MATERIAL OMITTED

Charles E. Haden, for appellant.

Virginia B. Theisen, Assistant Attorney General (Judith Williams Jagdmann, Attorney General, on brief), for appellee.

Present: BENTON, HUMPHREYS and CLEMENTS, JJ.

HUMPHREYS, Judge.

Appellant Wilfred Decourcey Wilson, Sr., ("Wilson") appeals his convictions, following a bench trial, for attempted rape, in violation of Code § 18.2-67.5(A), attempted forcible sodomy, in violation of Code § 18.2-67.5(A), aggravated sexual battery, in violation of Code § 18.2-67.3, sexual battery, in violation of Code § 18.2-67.4, and indecent exposure, in violation of Code § 18.2-387. On appeal, Wilson challenges the sufficiency of the evidence to support his convictions, also contending that the trial court erroneously admitted a letter that the victim wrote to her grandmother because the victim's letter did not qualify as a "recent complaint" within the meaning of Code § 19.2-268.2. For the reasons that follow, we disagree and affirm his convictions. However, we remand this case to the circuit court for the sole purpose of correcting an error reflected in the conviction and sentencing orders.¹

I. BACKGROUND

In accord with our usual standard of review, we view the evidence and all reasonable inferences flowing from the evidence in the light most favorable to the Commonwealth, the party prevailing below. Garcia v. Commonwealth, 40 Va.App. 184, 189, 578 S.E.2d 97, 99 (2003); Sabo v. Commonwealth, 38 Va.App. 63, 69, 561 S.E.2d 761, 764 (2002). So viewed, the evidence in this case establishes the following.

A.

In February 2000, Wilson moved into a home already occupied by his wife, son, stepson, and twelve-year-old daughter. All of the children slept in the same room. Wilson's daughter slept in the top bunk of a set of bunk beds, and her younger brother slept in the bottom bunk. Wilson's stepson slept in a separate bed in the same room. Wilson and his wife, the daughter's stepmother, slept together in a different room.

In April 2000, Wilson began coming into the children's bedroom late at night, at around "two or three o'clock in the morning." He would climb the ladder to the top bunk and touch his daughter's breasts, first over her clothes, and then under them. While he was fondling his daughter, Wilson would place his hand over her mouth and tell her to "be quiet." When the daughter began to cry, Wilson would tell her that she was "no fun." After this happened a few times, Wilson also began touching his daughter's vagina with his fingers and mouth. He never placed his finger inside of her vagina, although he would on occasion touch her labia. This happened "a lot of times," although "two or three weeks maybe" would pass between the incidents of abuse.

In 2001, the bunk beds broke while Wilson was trying to take them apart. The daughter then began sleeping on a sleeper sofa in the living room. After the change in sleeping arrangements, the incidents of abuse became more frequent, and the extent of the abuse also increased. Wilson would pin his daughter's arms above her head with one hand, remove her underwear with the other hand, and then "give [her] oral sex and touch [her] with his fingers down in [her] vaginal area." Wilson told her not to scream or he would hit her. This would happen at "random" intervals, but sometimes as often as two to five times per week.

On at least two occasions, Wilson also exposed himself to his daughter by removing his towel in front of her and laughing. The incidents of exposure occurred during the daytime while the daughter and Wilson were alone in the house.

The abuse continued until May of 2003. The last incident of abuse occurred when Wilson attempted to have vaginal intercourse with his daughter. On that evening, Wilson came into the living room while the daughter was asleep. He restrained her arms, told her to be quiet, and took off her clothes. At that point, Wilson was "aggressive, like he was ... trying to attack [her]." He put his hand over her mouth and positioned his penis on the "outside part" of her vagina. When Wilson's penis touched the outside of her vagina, his daughter "started squirming" and then "bit his finger." Wilson "jumped up" and ran out of the room. At the time, the daughter was fifteen years old.

Throughout this time period, Wilson periodically apologized to his daughter and promised to stop the abuse. He also gave her an extra allowance so that she would not tell anyone what he was doing to her.

During each of the years that the abuse occurred, the daughter traveled to New York to spend her summer vacation with her paternal grandmother. According to the daughter, at one point during the summer of 2001, her stepbrother told her stepmother that he thought Wilson had been "messing" with his daughter. The stepmother then telephoned Wilson's daughter and asked if Wilson had been touching her. The daughter said that this was true, and her stepmother then told the daughter not to tell her grandmother about the abuse.

In the summer of 2003, the grandmother noticed that, on some evenings, the daughter would awaken in the night, crying, "No, no, no, no." "She would fight." The grandmother asked her why she was upset, and the daughter responded that she was "all stressed out." The daughter became increasingly agitated as the time neared for her to return to Virginia, and the grandmother told the daughter that she needed to tell her what was wrong. When the daughter would not say anything, her grandmother told her "to write a letter to her about how [she] was feeling." A few days later, the daughter wrote her grandmother a letter, explaining that Wilson was molesting her by "fondling, [] kissing her, [] sucking her breasts, and other things." The daughter gave the letter to her grandmother on August 31, 2003.

Wilson was arrested and charged with sexual battery and indecent exposure. On January 12, 2004, a grand jury indicted Wilson on five additional charges, specifically, one count of attempted rape, three counts of aggravated sexual battery, and one count of attempted forcible sodomy.

B.

At Wilson's bench trial, conducted on February 10, 2004, the Commonwealth moved to admit the letter the daughter gave to the grandmother, contending that the letter was admissible under the "recent complaint hearsay exception." Wilson objected, arguing that the letter "can't qualify as a first outcry," because "[t]he first outcry was two years before." The Commonwealth responded that the letter was admissible because "[i]t's the first time she approached an adult about what happened." The trial court overruled the objection, reasoning that, although the daughter had "told her [step]mother about the touching," the letter was admissible under Code § 19.2-268.2 to prove "the nature of the complaint but not the details of the complaint."

During the trial, the daughter described the various incidents of abuse, testifying that her father touched her "a lot of times." She also testified that, initially, she did not fight back because she was afraid of her father, but that she finally began to fight back because she could not "take it" any longer. The daughter said that she was afraid of her father because he began hitting her and her brother shortly after he moved back into the family residence in 2000. The daughter said that she did not report the abuse to her brother, grandmother, or school counselor because she was "embarrassed and ashamed." She testified that she finally decided to tell her grandmother about the abuse because she believed her grandmother would understand.

The brother and stepbrother confirmed that Wilson's daughter began sleeping in the living room after the bunk beds broke. Before she moved out of the bedroom, neither had observed Wilson coming into the room late at night, but each boy also admitted to being a "heavy sleeper." The brother confirmed that Wilson began to "beat" them "a month or two" after he returned to the family residence, and he also testified that the daughter often "had more money" from her allowance than he did.

The stepbrother denied having told his mother that he "suspected anything was going on between Mr. Wilson and [his daughter]." The stepmother similarly denied ever having a phone conversation with Wilson's daughter about the abuse. She also testified that it would have been impossible for Wilson to sneak out of their bedroom and enter the children's bedroom without her noticing.

Wilson, testifying on his own behalf, stated that he never "touch[ed] [his daughter] or [had] any contact with her in any way sexually at all." Wilson admitted that he had struck his daughter in the past, but he testified that he only hit his daughter for disciplinary reasons "[w]hen [her] grades weren't up to par." Wilson also testified that his daughter "was constantly lying and doing things that [weren't] ... normal," such as forging his name to a check that she used to pay for a school field trip. Wilson explained that he only gave his daughter additional money for her allowance if she had plans to go out to dinner with her brother on a Friday night. Wilson admitted that he has two prior felony convictions, but he denied having two misdemeanor convictions for fraud.

The trial court found Wilson guilty of all the felony offenses "as charged in the indictments," also finding him guilty of the misdemeanor charges of sexual battery and indecent exposure. The court observed that "these type[s] of charges" are "insidious" and "seldom ever done in the open." Thus, the court noted that

What it boils down to essentially is there is corroboration, but it boils down to credibility, and the victim in this case, complaining witness in this case, gave an excellent account of her abilities to observe and remember and communicate what had...