Wayne Henderson v. Commonwealth of Virginia ( 2023 )

COURT OF APPEALS OF VIRGINIA
Present: Judges O’Brien, Causey and Friedman
UNPUBLISHED
WAYNE HENDERSON
MEMORANDUM OPINION*
v. Record No. 0118-22-1 PER CURIAM
FEBRUARY 7, 2023
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Jerrauld C. Jones, Judge
(Diallo K. Morris; Morris, Crawford & Currin, P.C., on brief), for
appellant. Appellant submitting on brief.
(Jason S. Miyares, Attorney General; Leanna C. Minix, Assistant
Attorney General, on brief), for appellee.
Following a bench trial, the trial court convicted Wayne Henderson, the appellant, of
aggravated sexual battery of a minor under the age of thirteen years, in violation of Code
§ 18.2-67.3. The court sentenced Henderson to five years of incarceration with three years and two
months suspended.1 On appeal, Henderson argues that the evidence was insufficient to convict him
because the Commonwealth failed to prove that he intended to sexually abuse the victim and the
victim’s testimony was inherently incredible. Henderson also argues that he received ineffective
assistance of counsel during sentencing. After examining the briefs and record in this case, the
panel unanimously holds that oral argument is unnecessary because “the appeal is wholly without
merit.” Code § 17.1-403(ii)(a); Rule 5A:27(a). Accordingly, we affirm the trial court’s
judgment.
*
Pursuant to Code § 17.1 413, this opinion is not designated for publication.
1
The trial court dismissed a related charge of indecent liberties with a child by a
custodian.
BACKGROUND2
At trial, A.E. testified that her uncle, Henderson, “touched” her “when [she] was a little
girl.” She explained that, when she was “either six or seven years old,” he touched her vagina
and breasts without her consent during a visit to his home in Norfolk. While A.E. and
Henderson were alone in the living room, Henderson approached her and “told [her] to unbuckle
[her] pants.” A.E. complied and felt him “touch” her vagina through “the outside of [her]
underwear” and reach beneath her shirt to grab her “chest area.” When Henderson’s wife,
Angela Henderson, called his name from upstairs and started to come downstairs, he ordered
A.E. to “pull [her] pants up” and “put [her] clothes back on.” A.E. obeyed, and Henderson
“went upstairs” before Angela could completely descend the staircase.
A.E. admitted that she initially denied any sexual abuse because she feared that “nobody
would believe [her].” She also acknowledged that she first reported the incident in “2017 or
2016,” after moving to Texas with her mother and grandmother. Further, A.E. admitted that at a
“forensic interview” in January 2018, she told police that Henderson removed her shorts and
“put his fingers under [her] underwear,” but he pulled her pants back up when his wife called.
Debra Hayes, A.E.’s mother, testified that A.E. first disclosed the assault in December
2017 when Henderson lived in Norfolk but was visiting Texas. The same day, Hayes contacted
Henderson to ask about the alleged abuse, but he did not respond and returned to Norfolk two
days later. At the end of the Commonwealth’s case-in-chief, Henderson did not move to strike
the evidence as insufficient, but the trial court granted his request to “withhold” the motion to
strike until the conclusion of all the evidence.
2
“In accordance with familiar principles of appellate review, the facts will be stated in
the light most favorable to the Commonwealth, the prevailing party at trial.” Poole v.
Commonwealth, 73 Va. App. 357, 360 (2021) (quoting Gerald v. Commonwealth, 295 Va. 469,
472 (2018)).
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Angela testified that she and Henderson shared a house together and A.E. never visited
when Henderson was present. Angela acknowledged, however, that between 2011 and 2013,
A.E. “sometimes” visited and it was possible that Henderson was present. Angela also admitted
that, after learning of the alleged assault, she sent a text message to Hayes stating, “You did the
right thing. [Henderson] needs to pay for what he’s done.” Angela stated that she did “not want
to see [Henderson] go to jail” and maintained that she did not believe that Henderson sexually
molested A.E.
Testifying on his own behalf, Henderson denied ever touching A.E. He explained that
A.E. visited his home only twice between 2011 and 2013, and never alone or overnight.
Henderson maintained that he had “no interaction” with A.E. and “no interest in children.”
At the conclusion of all the evidence, Henderson moved to strike the Commonwealth’s
case. He conceded, however, that the Commonwealth had established prima facie proof of the
requisite intent for aggravated sexual battery. The trial court denied the motion, finding that “all
the evidence creates questions of fact for the trier of fact.”
During closing argument, Henderson argued that A.E’s testimony was inherently
incredible because of inconsistencies and her late disclosure of the incident. The trial court
concluded that “[i]t’s not unusual to have conflicts in the evidence” and such inconsistencies do
“[n]ot necessarily” indicate that “someone is lying” or “mistaken.” Reasoning that children
“cannot always remember time the way adults remember time” because of “developmental
differences,” the trial court found that “traumatic events happen[ed] to [A.E.] that she is relating
irrespective of the time in which they occur[red].” Accordingly, the trial court determined that
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“every element has been proved sufficiently beyond a reasonable doubt” and convicted
Henderson of aggravated sexual battery of a minor under thirteen years old.3
At sentencing, the trial judge notified the litigants of a potential conflict of interest. After
trial, the judge’s son had become “associated” with a law firm belonging to Henderson’s defense
counsel. Defense counsel did not move the trial judge to recuse himself. The trial court
proceeded with the sentencing hearing and imposed five years of incarceration with three years
and two months suspended. Henderson appeals.
ANALYSIS
Sufficiency of the Evidence
On appeal, Henderson argues that “the Commonwealth failed to prove the requisite intent
to sustain his conviction.” We do not consider this argument, however, as he raises it for the first
time on appeal.
“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. Accordingly, “this
Court ‘will not consider an argument on appeal [that] was not presented to the trial court.’”
Farnsworth v. Commonwealth, 43 Va. App. 490, 500 (2004) (quoting Ohree v. Commonwealth,
26 Va. App. 299, 308 (1998)). “Specificity and timeliness undergird the
contemporaneous-objection rule [and] animate its highly practical purpose.” Bethea v.
Commonwealth, 297 Va. 730, 743 (2019). “Not just any objection will do. It must be both
specific and timely—so that the trial judge would know the particular point being made in time to
do something about it.” Id. (quoting Dickerson v. Commonwealth, 58 Va. App. 351, 356
3
The trial court dismissed a related charge of indecent liberties with a child by a
custodian.
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(2011)). Thus, appellate courts “will not consider an argument that differs from the specific
argument presented to the trial court, even if it relates to the same general issue.” Edwards v.
Commonwealth, 41 Va. App. 752, 761 (2003) (en banc) (citing Floyd v. Commonwealth, 219 Va.
575, 584 (1978)).
The Supreme Court of Virginia has held that “[i]n a jury trial, the defendant preserves his
objections to the sufficiency of the evidence in a motion to strike at the conclusion of the
Commonwealth’s case if he elects to not introduce evidence of his own”; or if the defendant does
present evidence, a “motion to strike at the conclusion of all the evidence or a motion to set aside
the verdict.” Commonwealth v. Bass, 292 Va. 19, 33 (2016). In a bench trial, a defendant may
also preserve a sufficiency challenge by “clearly present[ing]” the issue to the trial court during
closing argument. Campbell v. Commonwealth, 12 Va. App. 476, 481 (1991) (en banc). But
“[n]ot every closing argument accomplishes this objective.” Id. A defendant’s failure to
specifically argue during closing argument that the evidence is insufficient as a matter of law
will result in default. See, e.g., Bowling v. Commonwealth, 51 Va. App. 102, 106 (2007)
(holding that, even though defendant made a motion to strike at the conclusion of the case,
because the motion did not argue that the evidence was not sufficient to establish a specific
element of the offense, this specific argument was not preserved for appeal).
Here, we do not reach the merits of Henderson’s challenge to the sufficiency of the
evidence supporting his conviction for two reasons. First, during his motion to strike, Henderson
conceded that the Commonwealth made a prima facie showing that he intended to sexually abuse
A.E. Second, at closing argument, he did not contend that the evidence failed to prove the
requisite intent. Accordingly, Rule 5A:18 forecloses our review of the sufficiency argument that
he raises for the first time on appeal. Cf. Bowling, 51 Va. App. at 106. Although there are
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exceptions to Rule 5A:18, Henderson does not invoke them, and we will not do so sua sponte.
Edwards, 41 Va. App. at 761.
Credibility of Witness
Henderson next contends that A.E.’s testimony “was inherently unbelievable and should
have been disregarded by the trial court.” He argues that A.E.’s initial denial and delayed report
of the incident, combined with inconsistencies in her account, “render[ed] her trial testimony
unworthy of belief.” Henderson asserts that such “glaring inconsistencies” include A.E.’s
statement to investigators that Henderson removed her shorts and inserted his fingers into her
underwear, and her subsequent conflicting testimony at trial that she removed her shorts at his
direction and he touched her vagina through “the outside of [her] underwear.” As A.E. was the
Commonwealth’s “only eyewitness,” Henderson argues that her testimony was insufficient “to
support conviction beyond a reasonable doubt.” We disagree.
“Determining the credibility of witnesses . . . is within the exclusive province of the [fact
finder], which has the unique opportunity to observe the demeanor of the witnesses as they
testify.” Dalton v. Commonwealth, 64 Va. App. 512, 525 (2015) (first alteration in original)
(quoting Lea v. Commonwealth, 16 Va. App. 300, 304 (1993)). “[T]he conclusions of the fact
finder on issues of witness credibility may be disturbed on appeal only when we find that the
witness’ testimony was ‘inherently incredible, or so contrary to human experience as to render it
unworthy of belief.’” Ragsdale v. Commonwealth, 38 Va. App. 421, 429 (2002) (quoting Ashby
v. Commonwealth, 33 Va. App. 540, 548 (2000)). “Evidence is not ‘incredible’ unless it is ‘so
manifestly false that reasonable men ought not to believe it’ or ‘shown to be false by objects or
things as to the existence and meaning of which reasonable men should not differ.’” Gerald v.
Commonwealth, 295 Va. 469, 487 (2018) (quoting Juniper v. Commonwealth, 271 Va. 362, 415
(2006)). “So long as a witness deposes as to facts [that], if true, are sufficient to maintain [the]
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verdict,” and “[i]f the trier of the facts sees fit to base the verdict upon that testimony[,] there can
be no relief in the appellate court.” Smith v. Commonwealth, 56 Va. App. 711, 718-19 (2010)
(quoting Swanson v. Commonwealth, 8 Va. App. 376, 379 (1989)).
Contrary to Henderson’s assertion on brief, a victim’s “failure to immediately report”
sexual abuse does “not render [her] testimony inherently incredible as a matter of law.” Corvin
v. Commonwealth, 13 Va. App. 296, 299 (1991) (citing Hammer v. Commonwealth, 207 Va.
159, 162 (1966)). Without a “credible explanation,” such a delay may cast “suspicion and
doubt” on the victim’s testimony. Id. (quoting Willis & Bell v. Commonwealth, 218 Va. 560, 563
(1977)). But a fact finder “is entitled to attribute such significance as it deem[s] appropriate to
this delay.” Id. See also Woodard v. Commonwealth, 19 Va. App. 24, 28 (1994) (observing that
late reporting is “completely consistent with the all too common circumstances surrounding
sexual assault on minors—fear of disbelief by others”). In addition, “a fact finder’s evaluations
of credibility are not limited to choosing between competing accounts offered by different
witnesses, but often include, as in this case, resolving conflicts in a single witness’ testimony,
accepting that part of the testimony it deems credible and rejecting the portion it deems
incredible.” Commonwealth v. McNeal, 282 Va. 16, 22 (2011) (citing Hamilton v.
Commonwealth, 279 Va. 94, 105 (2010)). In conducting those evaluations, the fact finder “[i]s
free to believe or disbelieve, in part or in whole, the testimony of any witness.” Bazemore v.
Commonwealth, 42 Va. App. 203, 213 (2004).
The record supports the trial court’s finding that A.E.’s testimony was not inherently
incredible. A.E. testified that she initially denied abuse and did not report Henderson’s assault
for several years because she feared no one would believe her. Additionally, although there were
discrepancies between her testimony and her prior account to investigators, A.E. “did not waiver
with regard to the acts of sexual [abuse].” Nobrega v. Commonwealth, 271 Va. 508, 518 (2006).
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She consistently testified that Henderson touched her vagina and breasts without her consent
when she was a small child. From that evidence, the trial court could reasonably attribute A.E.’s
delayed disclosure to “fear of disbelief by others,” Woodard, 19 Va. App. at 28, and any conflict
in her testimony was merely “customary grist for the jury mill,” Manson v. Brathwaite, 432 U.S.
98, 116 (1977). Accordingly, the trial court’s conclusion that A.E.’s testimony was not
inherently incredible was not plainly wrong or without evidentiary support. Cf. Corvin, 13
Va. App. at 299 (holding that child victim’s testimony was not inherently incredible because the
child’s “youth, fright, and embarrassment” provided rational explanation of delayed report); see
also Nobrega, 271 Va. at 518 (holding that “minor inconsistencies” did not render child victim’s
testimony inherently incredible).
Furthermore, we have held that a victim’s testimony alone—if not inherently
incredible—can support a conviction for aggravated sexual battery. See Garland v.
Commonwealth, 8 Va. App. 189, 192 (1989). Because A.E.’s testimony that Henderson sexually
abused her was not inherently incredible, the trial court could rely on it. See id. Accordingly, we
hold that the Commonwealth’s evidence was sufficient to support his conviction under Code
§ 18.2-67.3.
Ineffective Assistance of Counsel
As his final assignment of error, Henderson argues that he was “denied the right to a fair
trial due to ineffective assistance of legal counsel.” He contends that defense counsel’s failure to
“timely object to improper argument” during sentencing or “request that the trial judge recuse
himself” deprived him of a “fair trial” and “undermines the confidence in outcome of the trial
court proceedings.”
“Claims raising ineffective assistance of counsel must be asserted in a habeas corpus
proceeding and are not cognizable on direct appeal.” Lenz v. Commonwealth, 261 Va. 451, 460
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(2001) (citing Johnson v. Commonwealth, 259 Va. 654, 675 (2000)). Thus, we do not consider
Henderson’s claim about ineffective assistance of counsel.
CONCLUSION
For the foregoing reasons, we affirm the trial court’s judgment.
Affirmed.
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