Henry Christian Olsen v. Commonwealth of Virginia ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Coleman and Elder
Argued at Salem, Virginia
HENRY CHRISTIAN OLSEN
MEMORANDUM OPINION * BY
v. Record No. 2305-97-3 JUDGE SAM W. COLEMAN III
DECEMBER 15, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF NELSON COUNTY
J. Michael Gamble, Judge
Bruce R. Williamson, Jr. (Williamson &
Toscano, on briefs), for appellant.
Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Henry C. Olsen was convicted by a jury of two counts of
aggravated sexual battery and one count of forcible sodomy. On
appeal, Olsen contends the trial court erred (1) in denying his
motion for a new trial, (2) in denying his motion for a
continuance before his cross-examination of Commonwealth witness
Russell Goldberg, and (3) in admitting the testimony of Deborah
Cole. Finding no error, we affirm the convictions.
I. BACKGROUND
On appeal, we view the evidence in the light most favorable
to the Commonwealth and grant to it all reasonable inferences
fairly deducible therefrom. Higginbotham v. Commonwealth, 216
Va. App. 349, 352, 218 S.E.2d 534, 537 (1975).
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
In 1993, Olsen developed a friendship with a ten-year-old
boy, B.A. With permission from B.A.'s parents, Olsen began
taking B.A. on various outings. On the second outing, Olsen
began rubbing B.A.'s "back," "butt," and "privates." Within a
year, B.A. was spending nights with Olsen in Olsen's bed, and
Olsen had initiated other sexual acts. "He [tried to] st[i]ck
his penis in [B.A.'s] butt." Olsen asked B.A. to put his mouth
on Olsen's penis and also directed B.A. to wrap his hand around
Olsen's penis and rub until Olsen ejaculated.
In 1995, B.A.'s nine-year-old brother T.R. began visiting
Olsen at the communal home where Olsen lived. While swimming
together, Olsen touched T.R.'s genitals. Also, Olsen "played"
with T.R.'s genitals while T.R. showered, and on one occasion
Olsen had T.R. "wash . . . [Olsen's] penis off with soap." Olsen
had T.R. nap with him and would rub the boy's penis asking if "it
was hard enough." During the naps Olsen also had the boy rub
Olsen's penis. Eventually T.R. spent nights at Olsen's during
which Olsen would put lotion on T.R.'s "butt" and "rubbed hard."
Defense witnesses testified that they had never observed
Olsen behave inappropriately with the children. Olsen testified
that he had served as a foster parent between 1977 and 1988 for
several boys and denied making any sexual advances towards those
boys.
The Commonwealth, in rebuttal, called Deborah Cole who lived
in the same community home as Olsen. The Commonwealth elicited
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from Cole testimony unfavorable to Olsen. On cross-examination,
Cole acknowledged that she left her three-year-old son at the
community residence while she worked without concern about
Olsen's presence. Then on re-direct, the Commonwealth gave her
an opportunity to explain why she permitted her child to remain
at the community home in her absence. Over Olsen's objection,
Cole testified:
I've seen a photo plate of the kids that
Henry has, well, I don't know, he, he told me
about these kids. They were all about the
same age. And Tray [Cole's son] is
substantially below that age, so I've had no
concerns about anything in regards to Tray.
Second of all, I hire Arlene to watch him and
I assume that's what she is doing, and I know
he's safe when she's watching him.
Also in rebuttal, the Commonwealth called Russell Goldberg.
Goldberg testified that Olsen had cared for him as a foster
parent and during that time, Olsen fondled his genitals and
engaged in oral and anal sex with him. Following an adoption
proceeding by Carol Marcasano, which Olsen contested, Marcasano
adopted Goldberg. Pursuant to court order, during the pendency
of the adoption, Goldberg visited Olsen every other weekend until
the final adoption. According to Goldberg, the sexual abuse
continued on those weekend visitations. Goldberg testified that
he told his social worker he wanted to end the visits with Olsen.
He also testified that he did not remember visiting with his
guardian ad litem during the adoption proceeding.
Goldberg further testified on cross-examination that as an
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adolescent he was hospitalized for mental conditions and attended
private schools for troubled youths. During his stay at one
hospital, Goldberg disclosed having been sexually abused by
Olsen. The Department of Social Services investigated the
allegations but did not institute charges against Olsen. Prior
to this trial, however, Goldberg had never revealed the full
extent of Olsen's sexual abuse. Goldberg also testified on
cross-examination that he had been convicted in Maryland of a
felony, the malicious destruction of property.
After Goldberg testified, Olsen moved for a continuance to
give him time to obtain records from the hospitals that had
treated Goldberg. The trial judge denied the motion.
Following Olsen's conviction, he made a motion for a new
trial based on after-discovered evidence that he claimed
discredited Goldberg's testimony. The evidence included proof of
previously undisclosed convictions. Also, Olsen proffered that
Goldberg's guardian ad litem during the adoption proceedings, and
Olsen's attorney during the adoption proceedings would testify
that, contrary to Goldberg's trial testimony, Goldberg had
expressed a desire during the pendency of the adoption proceeding
to continue his visits with Olsen. At this trial, Goldberg
testified that he had visited Olsen during the adoption
proceeding only because he was under court order to do so. Olsen
proffered that Goldberg's therapist from the time of the adoption
would also testify that Goldberg was angry at having to leave
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Olsen and that Goldberg continued to have positive feelings for
Olsen many months after leaving his residence. Finally, Olsen
proffered two of Goldberg's writings from the period when
Goldberg was in Olsen's care. In neither writing did Goldberg
refer to Olsen in negative terms, and in one writing he expressed
positive feelings toward Olsen stating, "The special thing about
my Dad is that he give [sic] me hugs."
After hearing arguments in support of the motion for a new
trial based on after-discovered evidence, the trial court denied
the request for an evidentiary hearing and the motion for a new
trial.
II. ANALYSIS
A. Motion for Continuance
Whether to grant a mid-trial continuance "rests within the
sound discretion of the trial court." Bennett v. Commonwealth,
236 Va. 448, 459, 374 S.E.2d 303, 310 (1988). If a party is
surprised by evidence in the midst of trial, the trial judge
shall exercise sound discretion in deciding under the
circumstances whether to grant a continuance. See id.; Snyder v.
Commonwealth, 10 Va. App. 67, 72, 389 S.E.2d 727, 730 (1990).
The denial of Olsen's motion for a mid-trial continuance to
investigate matters that he knew or should have known might arise
was not an abuse of the trial court's discretion. In a pretrial
motion in limine, Olsen had moved the court to suppress any
evidence of prior allegations of sexual abuse by Olsen. Olsen
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conceded that he was aware of Goldberg's prior accusation of
fondling. Furthermore, Olsen failed to establish that the
evidence he would have used in an effort to discredit Goldberg's
testimony was unavailable before trial.
B. Motion for a New Trial
Olsen contends the trial court erred in refusing to grant
him a new trial based on evidence from a post-trial investigation
which he claims proves that Goldberg committed perjury. After
accepting Olsen's proffer of the allegedly impeaching evidence,
the trial court denied the motion for a new trial.
The standard by which a trial court evaluates a motion for a
new trial is well established:
Motions for new trials based on
after-discovered evidence are addressed to
the sound discretion of the trial judge, are
not looked upon with favor, are considered
with special care and caution, and are
awarded with great reluctance. . . . The
applicant bears the burden to establish that
the evidence (1) appears to have been
discovered subsequent to trial; (2) could not
have been secured for use at the trial in the
exercise of reasonable diligence by the
movant; (3) is not merely cumulative,
corroborative or collateral; and (4) is
material, and as such should produce opposite
results on the merits at another trial.
Stockton v. Commonwealth, 227 Va. 124, 149, 314 S.E.2d 371, 387
(1984).
Olsen contends that this test violates due process because
under the test, after-acquired evidence proving that a rebuttal
witness committed perjury will never warrant a new trial.
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Therefore, Olsen urges that this Court adopt a new test.
Although Olsen did not specifically argue at trial that a
new standard to evaluate a motion for a new trial should be
adopted for rebuttal witnesses because the established standard
violated due process, he is not procedurally barred from making
such an argument on appeal. By timely making the motion for a
new trial and presenting evidence in support thereof, Olsen
"afford[ed] the trial court an opportunity to rule intelligently
on the issues presented." Weidman v. Babcock, 241 Va. 40, 44,
400 S.E.2d 164, 167 (1991). Because the trial court had no
authority to disregard Virginia law and adopt a new standard,
Olsen's failure to argue for a new standard did not deny the
trial court an opportunity to rule meaningfully on the motion for
a new trial and does not preclude his making the argument here.
Although Olsen may argue for a new standard on appeal, stare
decisis limits our authority to grant such a request. "[W]e are
bound by decisions of the Supreme Court of Virginia and are
without authority to overrule [them]." Tart v. Commonwealth, 17
Va. App. 384, 392, 437 S.E.2d 219, 224 (1993). Accordingly, we
review Olsen's appeal under the established standard as announced
by the Supreme Court in Stockton.
Under the applicable standard, Olsen's argument is not
sound. Nevertheless, the accepted standard does not, as Olsen
claims, preclude granting a new trial upon discovery that a
rebuttal witness committed perjury. Where the rebuttal evidence
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is so material that if disbelieved, it would clearly have
affected the trial's outcome, evidence that the rebuttal witness
committed perjury would be sufficient to grant a new trial. No
Virginia case law supports Olsen's claim or suggests a different
application of the standard to rebuttal evidence. In this case
the rebuttal evidence was devastating. Had Olsen's
after-discovered evidence proven that Goldberg committed perjury,
a different result might have obtained.
However, Olsen failed to prove that Goldberg committed
perjury. Proof of perjury requires evidence that an individual
intentionally make a false material declaration under oath. See
Scott v. Commonwealth, 14 Va. App. 294, 297, 416 S.E.2d 47, 49
(1992). The proffered evidence fails to show that Goldberg's
testimony, rather than certain extrajudicial statements, was
false. Additionally, many of the statements that Olsen offers to
impeach Goldberg, far from establishing perjury, are not even
inconsistent with Goldberg's testimony of a sexually abusive
relationship. The testimony showing that Goldberg expressed love
and devotion towards Olsen does not necessarily contradict
evidence that the relationship also involved sexual abuse and is
not sufficient to warrant setting aside a verdict and awarding a
new trial.
Notwithstanding Olsen's argument to the contrary, the trial
court's finding that Olsen could have secured the evidence prior
to trial was not clearly erroneous. Because Olsen was aware of
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Goldberg's fondling accusations, and because Olsen presented no
evidence that the material obtained post-trial was unavailable
prior to trial, we cannot say that the trial court's finding was
clearly erroneous.
Accepting that the after-discovered evidence may have
undermined Goldberg's credibility, the trial judge did not abuse
his discretion in determining that the results of the trial would
not have been different had Olsen presented the proffered
evidence at trial.
[W]hen the newly discovered evidence is
confined to testimony concerning the bad
character of a witness by his own
inconsistent statements made prior to trial
but not under oath, or by evidence of other
inconsistent facts, a new trial generally
will not be granted.
Mundy v. Commonwealth, 11 Va. App. 461, 480, 390 S.E.2d 525, 535,
aff'd en banc, 399 S.E.2d 29 (1990). Appellant's "newly
discovered evidence" was limited to evidence that might tend to
impeach the credibility of Goldberg, a rebuttal witness, and was
evidence that could have been obtained before trial. Under these
circumstances, the trial court did not abuse its discretion in
denying Olsen's motion for a new trial.
C. Deborah Cole's Testimony
Olsen contends that the trial court erred in admitting the
"opinion" testimony of the Commonwealth's rebuttal witness
Deborah Cole. On re-direct, the Commonwealth sought to have Cole
explain her cross-examination testimony that she willingly and
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consistently left her own child in the housing complex where
Olsen lived. In explanation, Cole stated that she believed her
child was younger than the children that Olsen was alleged to
have sexually abused.
Once a party has "opened the door" to inquiry
into a subject, the permissible scope of
examination on the subject by the opposing
party is a matter for the exercise of
discretion by the trial court, and we will
not disturb the trial court's action on
appeal unless it plainly appears that the
court abused its discretion.
Savino v. Commonwealth, 239 Va. 534, 545, 391 S.E.2d 276, 282
(1990) (citation and internal quotation marks omitted). Here,
Olsen opened the door to the challenged testimony by the "manner
in which he attacked [Cole's] credibility on cross-examination."
Id. Cole's testimony on re-direct was admissible to explain
Olsen's challenge to her credibility. Under these circumstances,
the trial court did not abuse its discretion in allowing the
challenged testimony.
For the reasons stated, we affirm the trial court's
conviction.
Affirmed.
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