Rodney J. Miller v. Elizabeth W. Easter, f/k/a etc. ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Bumgardner
Argued at Richmond, Virginia
RODNEY J. MILLER
MEMORANDUM OPINION * BY
v. Record No. 2094-99-2 JUDGE RUDOLPH BUMGARDNER, III
MAY 16, 2000
ELIZABETH W. EASTER, F/K/A
ELIZABETH MILLER
FROM THE CIRCUIT COURT OF POWHATAN COUNTY
Thomas V. Warren, Judge
Paul W. Cella for appellant.
No brief or argument for appellee.
Lucretia A. Carrico (Blandford, Carrico &
Newlon, P.C., on brief), Guardian ad litem
for the minor children.
The trial court suspended Rodney J. Miller's visitation
with his children. The father contends the trial court erred in
(1) admitting the hearsay statements of one of his children, and
(2) ruling that he forfeited his right to visitation because of
his incarceration. We conclude the trial court erred in
admitting the child's statements and remand for rehearing.
Two daughters were born to the father and Elizabeth Miller:
Jessica Lynn aged seven years, and Ashley Nicole aged ten years.
The father received a ten-year sentence for rape of the mother
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
and for breaking and entering her house with the intent to
commit rape, robbery, or murder. After that trial, the juvenile
and domestic relations district court granted the father
visitation, and the children visited him eight times during his
incarceration.
Both daughters told their guardian ad litem that they want
no further visits with their father, and Ashley emphasized that
she wanted no contact with him. The guardian ad litem reviewed
letters that the father wrote the children and consulted the
children's psychologist. The guardian ad litem believed that
further visitation in prison would be damaging and injurious.
She filed a motion in the juvenile and domestic relations
district court to suspend the father's visitation. She alleged
that the children's counselor reported that the father was
damaging to the girls by "using" them to "remediate" his
situation, that he was telling them details of incarceration
which were not appropriate, and that he apparently tried to get
Ashley to "recant" her allegations of his sexual abuse.
The juvenile and domestic relations district court
suspended the father's visitation on November 19, 1997 until the
children's counselor advised that visitation could resume. It
ordered the father to participate in counseling to develop his
ability to visit with the children. The juvenile and domestic
relations district court reviewed the matter for nearly a year,
but the father never participated in counseling, though the
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children's counselor continued to recommend it. The court made
the order suspending visitation final, and the father appealed.
In the circuit court, the mother testified Ashley told her
that her father sexually abused her. The mother testified
Ashley said that the father "was touching her in ways that he
shouldn't have been touching her," and "had touched her vagina
area and in her anal area." The mother had Ashley use her doll
to show her where the father had touched her. She testified
Ashley used the doll to show that "her father was taking his
penis and rubbing it around her anal area, and he was taking his
finger and touching her in her vagina area."
The evidence presented to the trial court consisted of the
mother's recitation of Ashley's complaint of sexual abuse by her
father. Ashley did not testify. There was no medical,
psychological, or other evidence that corroborated the mother's
hearsay evidence. At trial, the guardian ad litem conceded that
the evidence of Ashley's statements to her mother was hearsay.
However, on appeal she argues it was admissible to explain the
mother's conduct afterwards. After Ashley made the accusations,
the mother took her to medical doctors, and based upon their
findings and recommendations, she had the father leave the
marital home. The crimes for which the father received his
penitentiary sentence occurred after the two separated during
the summer of 1997.
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Hearsay is defined as "'testimony in court . . . of a
statement made out of court, the statement being offered as an
assertion to show the truth of matters asserted therein, and
thus resting for its value upon the credibility of the
out-of-court asserter.'" Jenkins v. Commonwealth, 254 Va. 333,
338, 492 S.E.2d 131, 134 (1997) (citations omitted). The
purpose for which the content of a statement is introduced
determines whether it is hearsay.
Under the facts presented, the admission of Ashley's
statements regarding her father's sexual abuse were out-of-court
statements admitted to prove the truth of the matter asserted;
they were hearsay. Based upon this record, we cannot say that
the admission of Ashley's otherwise unsubstantiated allegations
of sexual abuse did not affect the decision to suspend
visitation. Error is harmless when "'it plainly appears from
the record and the evidence given at trial that the parties have
had a fair trial on the merits and substantial justice has been
reached.'" Lavinder v. Commonwealth, 12 Va. App. 1003, 1005,
407 S.E.2d 910, 911 (1991) (en banc) (quoting Code § 8.01-678).
Where the error affects the verdict, it is not harmless. See
id. Accordingly, we remand the matter for rehearing.
The father also contends that the trial court erred because
it ruled that he forfeited his right to visitation because of
his incarceration. However, the guardian ad litem contends that
the trial court did not prohibit visitation but ordered that it
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was in the mother's discretion and that the trial court declined
to order the mother to take the children to the prison. We do
not read the trial court's oral explanation of its decision 1 as
the father characterizes it. However, we need not decide the
issue because on remand exercise of discretion by the trial
court will be based on further evidence of whether to modify the
visitation. The trial court is vested with broad discretion to
make the decisions necessary to safeguard and promote the
children's best interest. See Farley v. Farley, 9 Va. App. 326,
327, 387 S.E.2d 794, 795 (1990). Its decision is entitled to
great weight and will not be disturbed on appeal unless plainly
wrong or without evidence to support it. See Piatt v. Piatt, 27
Va. App. 426, 432, 499 S.E.2d 567, 570 (1998). The proceedings
might even permit the introduction of the very evidence which
1
The trial court ruled: "The defendant is not standing in
the position that a non-custodial parent normally stands in.
He's a convicted felon pulling time in the penitentiary system
and forfeits significant rights, and in my view forfeits the
right to have the mother, required by the court, to take those
two children to the penitentiary. This ought to be a decision
to be made by the custodial mother. Considering the wishes of
the children, considering all of those things, this ought to be
her decision. She seems to me presumed to have the best
interest of those two children in her mind, whether it's to take
or not to take them, and I don't think the Court ought to be
involved for the next nine and a half years while he's in prison
as to what the children are saying or what effect this has on
the children to go to prison. In my view of the custodial
mother – custodial parent views that it's not in the best
interest of these children to go to the penitentiary but once a
year or once every six months or once every three months or once
every month or not at all, then that's her decision, and I'm
going to deny any right to [court ordered] visitation."
(Emphasis added).
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was improper to admit when it was the sole evidence presented.
Cf. Mitchell v. Commonwealth, 25 Va. App. 81, 85-86, 486 S.E.2d
551, 553 (1997) (victim's brother could testify as to what
victim said after being sexually solicited because it
corroborated victim's testimony).
For the reasons stated, we reverse and remand for further
hearing.
Reversed and remanded.
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