Brian Gene Smith v. Commonwealth of Virginia ( 2023 )

COURT OF APPEALS OF VIRGINIA
Present: Judges O’Brien, Causey and Friedman
UNPUBLISHED
Argued at Norfolk, Virginia
BRIAN GENE SMITH
MEMORANDUM OPINION* BY
v. Record No. 0180-22-1 JUDGE FRANK K. FRIEDMAN
JANUARY 31, 2023
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Christopher Papile, Judge
Charles E. Haden for appellant.
Ken J. Baldassari, Assistant Attorney General (Jason S. Miyares,
Attorney General, on brief), for appellee.
A jury convicted Brian Gene Smith of four counts of aggravated sexual battery of a victim
under thirteen years old, two counts of aggravated sexual battery by a stepparent, and two counts of
forcible sodomy. By final order entered February 11, 2022, the Newport News Circuit Court
sentenced him to 200 years’ imprisonment with 168 years suspended. On appeal, Smith challenges
the sufficiency of the evidence. He also asserts that the trial court abused its discretion by failing to
strike two prospective jurors for cause. For the following reasons, we affirm.
BACKGROUND
Voir Dire Issues
A grand jury indicted Smith on four counts of aggravated sexual battery of a victim under
the age of thirteen, two counts of aggravated sexual battery by a stepparent, and two counts of
forcible sodomy. During voir dire, prospective juror K.M. told the trial court that she was
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
scheduled to work on one of the days set for trial. She stated that her company was “short of
employees” and she was “not sure if anybody c[ould] cover [her] shift or not.” In response to the
trial court’s inquiries, K.M. explained that she worked at a retail store and agreed to contact her
employer and ask if another employee could cover her shift.
After the trial court addressed another prospective juror’s concerns about understanding
the English language, K.M. stated that she did not “have jury duty in [her] country” and that she
“underst[ood] most of the stuff but like stuff I don’t get it. I’m trying.” The prosecutor asked:
“If you’re not understanding something, would you have any problem raising your hand and
asking?” K.M. did not verbally answer this question. The defense later moved to strike K.M. for
cause “based upon the language issue.” The trial court declined to strike K.M. for cause, noting
that the court was “comfortable with her ability to understand at this point.”
Defense counsel asked the prospective jurors if they were a parent or stepparent. Many
prospective jurors answered in the affirmative, including J.H. Defense counsel asked J.H. if it
was “possible you might not be able to give my client a fair and impartial trial based upon the
fact that you are a parent and the alleged victim in this case is the stepdaughter of my client?”
J.H. responded: “It’s possible. I don’t know what he did.”
The defense subsequently moved to strike J.H. for cause; the prosecutor noted that
defense counsel did not ask J.H. whether he would be able to follow the law and the evidence
and give Smith a fair and impartial trial. The trial court declined to strike J.H. and stated that the
court would “follow up” with J.H. The trial court subsequently reminded J.H. of his answer to
defense counsel’s previous question and asked if J.H. would “be able to listen to the evidence
and the law as I instruct you at the end of the trial and give both sides a fair and impartial trial?”
J.H. answered: “Yes.” The defense did not renew its motion to strike J.H. for cause. Both J.H.
and K.M. were removed from the panel with peremptory strikes.
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Evidence Relating to the Sexual Abuse
Smith married A.R.’s mother, Yvonne, in 2008, when A.R. was nine or ten years old.
A.R. testified that sometime in 2009 or 2010, Smith began coming into her bedroom late at night
and touching her breasts over and under her clothing. Smith touched her “almost every night for
years,” unless there were guests in the house. A.R. remembered that Smith usually came to her
room between 2:00 and 3:00 a.m. “because whenever he would leave, the first thing [she] saw
was the clock.”
Smith stopped touching A.R.’s breasts at night for a brief period when she received a
bunk bed for her eleventh birthday, because he could not reach her when she slept in that bed.
After several months, however, Smith and Yvonne removed the bunk bed and Smith resumed
touching A.R.’s breasts. A.R. began sleeping with her arms crossed. She recalled a specific
night when Smith pulled A.R.’s arms away from her chest. A.R. kept her eyes closed and
pretended that she was still asleep; she then felt Smith’s penis in her hand.
A.R. recalled another night when Smith entered her room and pulled her arms away from
her chest. When he tried to touch her breasts, she kicked him in the chest. Smith asked why she
kicked him, and A.R. asked why he was trying to touch her. Smith claimed that he was trying to
tuck her in, but he had been pulling the covers off her. After that night, A.R. began setting
“booby-traps” to alert her when he entered her room. She noticed that if she “moved and looked
up” when she heard him open her bedroom door, he would “immediately close the door and go
back to bed” and she would be “safe.” She unsuccessfully tried to place a motion-activated toy
in front of the door to wake her up when he entered the room; she also arranged items into a
maze on the floor to cause him to trip.
When A.R. was thirteen years old, she “got in trouble somehow” and Yvonne ordered her
to lower her pants so that Smith could spank her. A.R. started hyperventilating and suffered a
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“panic attack” because she did not want to expose any part of her body to Smith. When Smith
and Yvonne asked what “was wrong” with her, she screamed, “Why won’t you quit touching
me?” After Yvonne stated that Smith was not touching A.R. at that time, A.R. “explained what
had been going on” and Yvonne “confronted” Smith about it. He “denied everything” and stated
that “he was just trying to make sure [A.R.] was sleeping okay.” A.R. tried to tell Yvonne that
Smith was touching her while she was sleeping and she did not like it. A.R. testified that she
“was terrified of [Smith and Yvonne] because [she] didn’t know what trouble [she] could have
gotten into as a kid.” After this confrontation, Smith stopped touching A.R.’s breasts at night.
When A.R. was fifteen years old, Smith caught her sneaking a boy into the house. Smith
also found nude photos of A.R. on her phone. Smith threatened to show the nude photos to
Yvonne. A.R. testified that she was terrified of getting in trouble because Yvonne “raised [her]
to always be this perfect little child and never make mistakes.” A.R. was afraid that if she got in
trouble, she “would get kicked out of the family.”
As Smith and A.R. “negotiated” her punishment, he “ask[ed] for certain sexual favors”
from her. He asked to perform cunnilingus on A.R. until she “came” but she refused. Smith
ultimately decided that he would perform cunnilingus on her for one minute. He directed her to
shower, shave her “genital region,” and lie on his bed wearing nothing but a towel. Smith
proceeded to perform cunnilingus on A.R., putting his tongue on and inside her vagina. She was
“screaming and crying and just wanting it to be over.” As soon as she saw “the minute switch”
on the clock, she told him to stop and pushed him off. She could not look at his face, but saw
ejaculate running down his leg. A.R. ran from the room and took another shower to try to “scrub
[herself] of the nastiness.”
Smith subsequently “wanted to make amends” with A.R. He bought her a video game
that she wanted and told her that they “were going to pretend like this never happened.”
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Approximately one year later, when A.R. was sixteen years old, Smith again caught A.R. doing
“something wrong” and told her, “I’m going to tell your mom or we can make this disappear
again.” She asked what he wanted, and he replied that they could “do the same thing again.”
A.R. agreed because she “just want[ed] everything to disappear.” Smith again performed
cunnilingus on A.R. for one minute, putting his tongue on and inside her vagina.
A.R.’s Reporting of the Abuse
A.R. testified that she tried to tell Yvonne about the sexual abuse but she did not know
“what it even was” or “what to call it.” A.R. “tried to express” to Yvonne that “I don’t know
what’s going on, but I know I don’t like it.” “[A]ny time” A.R. told Yvonne about Smith’s
behavior, Smith and Yvonne would “talk about it a little bit and have an argument,” but by
dinnertime “everything would be perfectly normal.” A.R. felt “helpless,” “confused,” and
“trapped.”
In addition to Yvonne, A.R. reported the sexual abuse to three people: Yvonne’s friend,
Heather Rice, A.R.’s ex-boyfriend, Jeffrey Landreneau, and her friend, Trae Cloud. Rice,
Landreneau, and Cloud all confirmed that A.R. had reported Smith’s abusive behavior to them.
Landreneau testified that A.R. told him in 2014 or 2015 that Smith had found nude pictures of
her and agreed to destroy them if she allowed him to perform oral sex on her. Rice testified that
when A.R. was sixteen years old, she told Rice that Smith was molesting her and that she woke
up one night and Smith’s penis was in her hand. Cloud testified that when he and A.R.
volunteered together in 2014 or 2015, she told him that her stepfather “was sexually touching
her.” Cloud told his mother, who called Child Protective Services (CPS).
On cross-examination, A.R. confirmed that after Cloud’s mother called CPS, two CPS
officers and two police officers came to the Smith residence. The officers spoke with A.R. and
Yvonne together, and with A.R., Yvonne, and Smith together; they did not speak with A.R.
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alone. The officers left after approximately thirty minutes; they “found no issues” and did not
remove A.R. from the home. A.R. also confirmed that she never reported Smith’s sexual abuse
to her father, her grandparents, her teachers, or her neighbor that was a police officer. On
redirect, A.R. reiterated that she tried to tell Yvonne about the abuse multiple times, but Yvonne
“didn’t care,” “didn’t believe” her, and told her “to pretend like everything was okay.” A.R.
reported Smith to the police in 2019 after she joined the Air Force. She discovered that the Air
Force “actually want[ed] to help people.” She “got all the resources [she] could possibly want,”
felt “safe” and “protected,” and believed that she could “get [her] story finally out and get
justice.”
Smith Denies All Allegations and is Convicted
After the Commonwealth rested its case-in-chief, Smith moved to strike the evidence,
arguing that A.R.’s testimony was incredible. The trial court denied the motion, noting that
A.R.’s credibility was an issue for the jury. Smith’s daughter, Mackenzie Bridwell, testified that
she slept at Smith’s residence every other weekend and “for about a month every summer”
between 2009 and 2015. Bridwell’s room shared a wall with A.R.’s room, and Bridwell never
saw Smith go into A.R.’s room at night.
Smith testified in his own defense. He categorically denied A.R.’s allegations that he
sexually abused her. He averred that he maintained a good relationship with A.R. even after she
graduated from high school and moved out of the residence. The defense then rested and
renewed its motion to strike; the trial court again denied the motion. The jury convicted Smith
on all counts, and the trial court denied Smith’s motion to set aside the verdict. This appeal
followed.
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ANALYSIS
Smith contends that the evidence at trial was insufficient to support his convictions. He
also contends that the trial court abused its discretion by failing to strike prospective jurors J.H.
and K.M. for cause.
A. Sufficiency of the Evidence
“When reviewing the sufficiency of the evidence, ‘[t]he judgment of the trial court is
presumed correct and will not be disturbed unless it is plainly wrong or without evidence to
support it.’” Smith v. Commonwealth, 296 Va. 450, 460 (2018) (alteration in original) (quoting
Commonwealth v. Perkins, 295 Va. 323, 327 (2018)). “In such cases, ‘[t]he Court does not ask
itself whether it believes that the evidence at the trial established guilt beyond a reasonable
doubt.’” Secret v. Commonwealth, 296 Va. 204, 228 (2018) (alteration in original) (quoting
Pijor v. Commonwealth, 294 Va. 502, 512 (2017)). “Rather, the relevant question is whether
‘any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.’” Vasquez v. Commonwealth, 291 Va. 232, 248 (2016) (quoting Williams v.
Commonwealth, 278 Va. 190, 193 (2009)). “If there is evidentiary support for the conviction,
‘the reviewing court is not permitted to substitute its own judgment, even if its opinion might
differ from the conclusions reached by the finder of fact at the trial.’” Chavez v. Commonwealth,
69 Va. App. 149, 161 (2018) (quoting Banks v. Commonwealth, 67 Va. App. 273, 288 (2017)).
“Under well-settled principles of appellate review, we consider the evidence presented at
trial in the light most favorable to the Commonwealth, the prevailing party below.” Vay v.
Commonwealth, 67 Va. App. 236, 242 (2017) (quoting Smallwood v. Commonwealth, 278 Va. 625,
629 (2009)). “This principle requires us to ‘discard the evidence of the accused in conflict with that
of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth
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and all fair inferences to be drawn therefrom.’” Id. (quoting Parks v. Commonwealth, 221 Va. 492,
498 (1980)).
Smith acknowledges that a jury may convict a defendant of sexual offenses based solely on
the testimony of the victim. See Wilson v. Commonwealth, 46 Va. App. 73, 87 (2005). Indeed,
“[b]ecause sexual offenses are typically clandestine in nature, seldom involving witnesses to the
offense except the perpetrator and the victim, a requirement of corroboration would result in most
sex offenses going unpunished.” Poole v. Commonwealth, 73 Va. App. 357, 369 (2021) (quoting
Wilson, 46 Va. App. at 88). Smith instead asserts that “there was no explanation why A.R. waited
until late December 2019 to go to the police with her accusations” and “the years-long delay in
making an outcry rendered A.R.’s allegations incredible as a matter of law.” We disagree.
“The credibility of the witnesses and the weight accorded the evidence are matters solely for
the fact finder who has the opportunity to see and hear that evidence as it is presented.” Lambert v.
Commonwealth, 70 Va. App. 740, 759 (2019) (quoting Elliott v. Commonwealth, 277 Va. 457, 462
(2009)). This Court cannot disturb the jury’s credibility determinations “unless, ‘as a matter of law,
the testimony is inherently incredible.’” Id. (quoting Nobrega v. Commonwealth, 271 Va. 508, 518
(2006)). “[T]his Court cannot say a witness’ testimony is inherently incredible unless it is ‘so
contrary to human experience as to render it unworthy of belief.’” Id. (quoting Johnson v.
Commonwealth, 58 Va. App. 303, 315 (2011)).
A.R. testified that Smith touched her breasts innumerable times when she was between
the ages of ten and thirteen. She further recounted how Smith twice performed cunnilingus on
her, once when she was fifteen years old and once when she was sixteen years old. The
testimony was not inherently incredible. See Wilson, 46 Va. App. at 88. Smith relies on the
premise that “failure to report an incident of sexual abuse for an unreasonably long period casts
‘suspicion and doubt’ on the victim’s testimony, ‘unless there is a credible explanation for such
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delay.’” Id. We reject the assertion that A.R. failed to report Smith’s sexual abuse for an
unreasonably long period of time, or that she failed to explain why she delayed as long as she did.
A.R. first told Yvonne that Smith had been touching her when A.R. was thirteen years old—
no more than three years after the abuse began. Although Yvonne confronted Smith, she believed
Smith, not A.R. A.R. tried multiple times to tell Yvonne about Smith’s behavior without success;
she testified that Yvonne’s continued refusal to believe her combined with her fear of getting in
trouble made her feel “helpless,” “trapped,” and “confused.”
In addition to her multiple attempts to convince Yvonne, A.R. reported Smith’s sexual
abuse to Rice, Landreneau, and Cloud in 2014 or 2015, as all three confirmed at trial. A.R. told
Rice, consistent with her trial testimony, that she awoke one night to find Smith’s penis in her
hand. Landreneau confirmed that A.R. told him that Smith threatened to show A.R.’s nude
photos to Yvonne unless A.R. allowed him to perform cunnilingus. A.R. told Cloud that Smith
was “sexually touching her.” In sum, A.R. reported the sexual abuse to multiple people on
multiple occasions. The period between the onset of abuse and when A.R. unsuccessfully told
Yvonne, and the delay between then and when A.R. told others, were not “unreasonably long,”
Wilson, 46 Va. App. at 88, considering A.R.’s age during this time, Yvonne’s refusal to believe
her, and the fact that the abuse was ongoing.
Moreover, A.R. explained to the jury why she did not report Smith’s abuse to more
people. Specifically, she stated that she told Yvonne, but Yvonne “didn’t care” and “didn’t
believe” her. A.R. “figured if [her] own mother w[ouldn’t] protect [her], nobody [w]ould.” She
further testified that she never told her father about the abuse because she “didn’t really have a
relationship” with him, and did not tell her stepsister, Bridwell, because A.R. “didn’t really know
her.” Finally, A.R. explained that she reported Smith to the police in 2019 after she joined the
Air Force and found the resources and support that made her feel safe and protected. Smith was
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entitled to argue that the jury should not credit these explanations and should instead believe
Smith’s unequivocal denials of A.R.’s accusations. But there is no basis in the record for this
Court to conclude that A.R.’s testimony was inherently incredible, and thereby override the
jury’s credibility determinations.
Smith also contends that A.R.’s testimony is insufficient to prove that he committed
forcible sodomy by engaging in cunnilingus with A.R. “against [her] will . . . by force, threat or
intimidation.” See Code § 18.2-67.1(A)(2). “No ruling of the trial court . . . will be considered
as a basis for reversal unless an objection was stated with reasonable certainty at the time of the
ruling, except for good cause shown or to enable this Court to attain the ends of justice.” Rule
5A:18. “The purpose of this contemporaneous objection requirement is to allow the trial court a
fair opportunity to resolve the issue at trial, thereby preventing unnecessary appeals and retrials.”
Creamer v. Commonwealth, 64 Va. App. 185, 195 (2015).
Smith preserved his challenge to the sufficiency of the evidence with his motion to strike
and his motion to set aside the verdict. In arguing these motions, Smith asserted that the
evidence was insufficient because A.R.’s testimony was inherently incredible. He did not argue,
however, that A.R.’s testimony, viewed in the light most favorable to the Commonwealth, was
insufficient as a matter of law to prove that he committed forcible sodomy by force, threat, or
intimidation.1 Smith does not invoke the good cause or ends of justice exceptions to Rule 5A:18,
and the Court will not apply the exceptions sua sponte. Edwards v. Commonwealth, 41 Va. App.
752, 761 (2003) (en banc). Accordingly, we do not consider his argument that A.R.’s testimony,
viewed in the light most favorable to the Commonwealth, was insufficient to support Smith’s
convictions for forcible sodomy.
1
In fact, Smith’s trial counsel acknowledged that the Commonwealth had proven “threat
and intimidation” through A.R.’s testimony.
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B. Jury Selection
Smith also contends that the trial court abused its discretion by failing to strike
prospective jurors J.H. and K.M. for cause. A criminal defendant has a fundamental right to be
tried by an impartial jury. Goodwin v. Commonwealth, 71 Va. App. 125, 135 (2019). An
accused’s constitutional right to trial by an impartial jury is “reinforced by legislative mandate
and by the Rules of this [C]ourt.” Castillo v. Commonwealth, 70 Va. App. 394, 422 (2019)
(quoting Justus v. Commonwealth, 220 Va. 971, 975-76 (1980)). “It is the duty of the trial court,
through the legal machinery provided for that purpose, to procure an impartial jury to try every
case.” Lovos-Rivas v. Commonwealth, 58 Va. App. 55, 60 (2011) (quoting Salina v.
Commonwealth, 217 Va. 92, 93 (1976)). In a felony case, “[t]welve persons from a panel of not
less than 20 shall constitute a jury.” Code § 19.2-262(B). “The [trial] court and counsel for
either party shall have the right to examine under oath any person who is called as a juror,” and
“if it shall appear to the court that [a] juror does not stand indifferent in the cause,” the court
must exclude that juror from the panel. Code § 8.01-358; see Rule 3A:14. After the trial court
removes jurors for cause, “[t]he parties or their counsel, beginning with the attorney for the
Commonwealth, shall alternately strike off one name from the panel until the number remaining
shall be reduced to the number required for a jury.” Code § 19.2-262(C).
“[T]he test of impartiality is whether the venireperson can lay aside [any] preconceived
views and render a verdict based solely on the law and evidence presented at trial.” Lovos-Rivas,
58 Va. App. at 61 (quoting Cressell v. Commonwealth, 32 Va. App. 744, 761 (2000)). “Juror
impartiality is a question of fact.” Goodwin, 71 Va. App. at 136. This Court will not disturb the
trial court’s factual finding regarding a juror’s impartiality “unless it is plainly wrong or without
evidence to support it.” Id. (quoting Sheppard v. Commonwealth, 250 Va. 379, 387 (1995)). We
“must give deference to the trial court’s decision to exclude or retain a prospective juror because
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the trial court ‘sees and hears the juror.’” Id. (quoting Weeks v. Commonwealth, 248 Va. 460,
475 (1994)). In assessing a prospective juror’s impartiality, we review the voir dire of the juror
“as a whole, not just isolated statements by that juror.” Id. “[A] trial court’s refusal to strike a
juror for cause will not be disturbed on appeal unless that decision constitutes ‘manifest error
amounting to an abuse of discretion.’” Id. (quoting Lovos-Rivas, 58 Va. App. at 61).
Additionally, “[t]he right of an impartial jury requires that the jury be capable of
understanding the factual issues that it must resolve.” Mason v. Commonwealth, 255 Va. 505,
509 (1998). “[A] litigant who seeks to set aside a jury verdict or obtain a new trial on the basis
of a juror’s disability must demonstrate that the ‘disability be such as to probably cause injustice
in a criminal case to the Commonwealth or to the accused.’” Id. at 510 (quoting Code
§ 8.01-352(B)).
As the Commonwealth acknowledges, we have rejected the proposition that a trial court’s
erroneous failure to strike a prospective juror for cause is harmless if one of the parties uses a
peremptory strike to remove that juror from the panel. Winston v. Commonwealth, 32 Va. App.
864, 869 (2000). “The ‘statutory requirements for impaneling jurors are mandatory,’ and ‘any
departure from a strict observance of the statutory provisions,’ when done ‘over the protest of the
accused . . . constitutes reversible error.’” Id. (first quoting Kennedy v. Commonwealth, 168 Va.
721, 726 (1937); then quoting Elkins v. Commonwealth, 161 Va. 1043, 1047 (1933)).
1. Prospective Juror J.H.
Smith asserts that the trial court abused its discretion by failing to strike J.H. for cause.
He argues that J.H.’s answer that he could listen to the evidence and the law and give both sides
a fair trial did not “negate or undo” his earlier answer that it was possible that he could not be
impartial. We disagree. The test of impartiality is not the absence of any preconceived views
but the juror’s ability to lay aside those views and render a verdict based on the law and the
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evidence. Lovos-Rivas, 58 Va. App. at 61; see also Taylor v. Commonwealth, 67 Va. App. 448,
456 (2017) (“A manifest error occurs when the record shows that a prospective juror cannot or
will not lay aside his or her preconceived opinion.”). J.H. noted the possibility that his views as
a parent could influence his ability to be impartial; however, when the trial court specifically
asked if he would “be able to listen to the evidence and the law” and “be able to be fair and
impartial to both sides,” J.H. answered, “Yes.” Additionally, J.H. affirmed earlier in the voir
dire that he understood the presumption of innocence and was able to follow the rule of law.
Accordingly, viewing J.H.’s voir dire as a whole, the trial court did not abuse its discretion by
finding that J.H. could be fair and impartial.
2. Prospective Juror K.M.
Smith also contends that the trial court abused its discretion by not striking K.M. for
cause because, he asserts, she did not sufficiently understand English to give him a fair and
impartial trial. We again disagree.
The trial judge, who had the opportunity to observe and hear K.M. throughout the entire
voir dire, found that she understood English well enough to impartially serve on the panel.
Importantly, before K.M.’s colloquy with the prosecutor regarding her ability to understand
English, K.M. and the court discussed her concerns about missing work. This discussion
allowed the trial court to assess K.M.’s ability to understand English. See Mason, 255 Va. at
507-10 (upholding trial court’s finding of English proficiency where trial court was “guided” by
juror’s “ability to converse” with judge). Moreover, in assessing K.M.’s later assertion that she
had some trouble understanding the proceedings, the trial court could also consider that the first
concern K.M. raised regarding jury service was her work schedule, not her limited understanding
of English. Additionally, the United States Supreme Court has noted that “jurors are not
necessarily experts in English usage. Called as they are from all walks of life, many may be
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uncertain as to the meaning of terms which are relatively easily understood by lawyers and
judges.” McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 555 (1984). The trial
court’s factual finding that K.M. could understand the proceedings was not plainly wrong, and its
refusal to strike K.M. for cause was not “manifest error amounting to an abuse of discretion.”
Goodwin, 71 Va. App. at 136.
CONCLUSION
For the foregoing reasons, we affirm Smith’s convictions for aggravated sexual battery
and forcible sodomy.
Affirmed.
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