Robert Dominic Civitello, Sr v. Commonwealth ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Bumgardner and Humphreys
Argued at Alexandria, Virginia
ROBERT DOMINIC CIVITELLO, SR.
MEMORANDUM OPINION * BY
v. Record No. 1963-01-2 JUDGE ROBERT J. HUMPHREYS
JANUARY 7, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF KING GEORGE COUNTY
J. Peyton Farmer, Judge Designate
Douglas Foord, Assistant Public Defender
(Office of the Public Defender, on brief),
for appellant.
Robert H. Anderson, III, Senior Assistant
Attorney General (Jerry W. Kilgore, Attorney
General; Margaret W. Reed, Assistant
Attorney General, on brief), for appellee.
Robert Dominic Civitello, Sr. appeals his convictions, after
a jury trial, for twenty separate counts of taking indecent
liberties with a child, seven separate counts of aggravated sexual
battery, three separate counts of forcible sodomy, three separate
counts of child pornography, one count of rape, and one count of
attempted sodomy. 1 Civitello contends the trial court erred 1) in
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication. Further, because this opinion has
no precedential value, we recite only those facts essential to
our holding.
1
We note that Civitello was indicted for two counts of
forcible sodomy, in violation of Code § 18.2-67.1 and two counts
granting the Commonwealth's motion to allow two child witnesses to
testify via closed-circuit television; 2) in sustaining the
Commonwealth's objection to his inquiries on voir dire concerning
the prospective jurors' duty to consider the full range of
punishment; and 3) in finding the evidence sufficient, as a matter
of law, to support the convictions. For the following reasons, we
affirm the judgment of the trial court, but remand with
instructions to the trial court to correct a clerical error
appearing in the July 16, 2001 sentencing order. 2
On appeal, Civitello first contends the trial court erred in
granting the Commonwealth's motion, pursuant to Code § 18.2-67.9,
requesting to use two-way closed-circuit television to present the
testimony of the child victims. Specifically, Civitello contends
the trial court erred in finding that complaining witnesses, K.P.
of attempted forcible sodomy, in violation of Code § 18.2-67.5.
However, the jury convicted Civitello of three counts of
forcible sodomy. Indictment Number CR00-78 specifically states
that the charge listed therein is for "unlawfully and
feloniously attempt[ing] to commit sodomy . . . in violation of
Va. Code Section 18.2-67.5." Nevertheless, the jury verdict
form pertaining to this indictment number states "[w]e the jury
find the defendant guilty of sodomy of a child . . . as charged
in the indictment in CR00-78." The conviction order similarly
states that on case number CR00-78 Civitello was found guilty of
the offense of "forcible sodomy," in violation of Code
§ 18.2-67.1. This appears to be error. However, Civitello has
raised no such claim on appeal. Accordingly, we do not address
the issue.
2
Specifically, the sentencing order reflects that Civitello
was sentenced for "5 years for Case No. CR00-88." However, the
record demonstrates that the jury found Civitello not guilty of
that particular offense.
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and M.W., were substantially unable to communicate about the
offenses, as contemplated by Code § 18.2-67.9, and therefore,
permitting them to testify via closed-circuit television. We
disagree.
"When reviewing the decisions of the trial court, we give
great weight to the court's factual findings, which will not be
disturbed on appeal unless plainly wrong or without evidence to
support them." Parrish v. Commonwealth, 38 Va. App. 607, 613, 567
S.E.2d 576, 578 (2002). Furthermore, "we consider all the
evidence, and any reasonable inferences fairly deducible
therefrom, in the light most favorable to the party that prevailed
at trial, which is the Commonwealth in this case." Toliver v.
Commonwealth, 38 Va. App. 27, 31, 561 S.E.2d 743, 745 (2002).
Code § 18.2-67.9 provides as follows, in relevant part:
B. The court may order that the testimony
of the child be taken by closed-circuit
television as provided in subsection A if it
finds that the child is unavailable to
testify in open court in the presence of the
defendant, the jury, the judge, and the
public, for any of the following reasons:
1. The child's persistent refusal to
testify despite judicial requests to do so;
2. The child's substantial inability to
communicate about the offense; or
3. The substantial likelihood, based upon
expert opinion testimony, that the child
will suffer severe emotional trauma from so
testifying.
Any ruling on the child's unavailability
under this subsection shall be supported by
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the court with findings on the record or
with written findings in a court not of
record.
The trial court here based its decision upon subsection (B)(2),
the children's "substantial inability to communicate about the
offense."
As Civitello recognizes, in Maryland v. Craig, 497 U.S. 836(1990), the United States Supreme Court upheld a statute similar
to Code § 18.2-67.9 holding that
if the State makes an adequate showing of
necessity, the state interest in protecting
child witnesses from the trauma of
testifying in a child abuse case is
sufficiently important to justify the use of
a special procedure that permits a child
witness in such cases to testify at trial
against a defendant in the absence of
face-to-face confrontation with the
defendant.
497 U.S. at 855. However, the Court went on to state that:
[t]he requisite finding of necessity must,
of course, be a case-specific one: the trial
court must hear evidence and determine
whether use of the one-way closed circuit
television procedure is necessary to protect
the welfare of the particular child witness
who seeks to testify. The trial court must
also find that the child witness would be
traumatized, not by the courtroom generally,
but by the presence of the defendant.
Denial of face-to-face confrontation is not
needed to further the state interest in
protecting the child witness from trauma
unless it is the presence of the defendant
that causes the trauma. In other words, if
the state interest were merely the interest
in protecting child witnesses from courtroom
trauma generally, denial of face-to-face
confrontation would be unnecessary, because
the child could be permitted to testify in
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less intimidating surroundings, albeit with
the defendant present. Finally, the trial
court must find that the emotional distress
suffered by the child witness in the
presence of the defendant is more than de
minimis, i.e., more than "mere nervousness
or excitement or some reluctance to
testify." We need not decide the minimum
showing of emotional trauma required for use
of the special procedure, however, because
the Maryland statute, which requires a
determination that the child witness will
suffer "serious emotional distress such that
the child cannot reasonably communicate,"
§ 9-102(a)(1)(ii), clearly suffices to meet
constitutional standards.
Id. at 855-56 (citations omitted).
Civitello claims that, here, the testimony established
nothing more than that K.P. and M.W. were scared or "nervous"
about testifying in general. Thus, Civitello contends that the
trial court's holding, based upon Code § 18.2-67.9, violated his
Sixth Amendment right of confrontation.
Assuming without deciding that such a contention would be
cognizable pursuant to Craig, we find that Civitello failed to
properly preserve any constitutional claim with regard to the
trial court's application of the statute. Indeed, Civitello
raised no such claim below. Instead, he argued that the
Commonwealth failed to establish the requisite showing under the
statute. Accordingly, we do not address Civitello's
constitutional claim. See Rule 5A:18; see also Andrews v.
Commonwealth, 37 Va. App. 479, 493, 559 S.E.2d 401, 408 (2002)
("'Rule 5A:18 applies to bar even constitutional claims.'"
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(quoting Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d
484, 488 (1998))). Moreover, the trial court allowed only two of
the six complaining witnesses to testify via closed-circuit
television. With regard to those two child witnesses, we hold
that, based upon the testimony and demeanor of K.P. and M.W.
during the hearing on the motion, the trial court had sufficient
evidence upon which to base its finding that the girls
demonstrated a substantial inability to communicate about the
offense. See Code § 18.2-67.9(B)(2).
Civitello next contends that the trial court erred in
refusing to allow him to question the venire regarding the range
of sentencing available for the charges at issue. Specifically,
Civitello contends that according to Hill v. Commonwealth, 36
Va. App. 375, 550 S.E.2d 351 (2001), he had "an absolute right to
inquire as to the prospective jury's duty to consider the full
range of punishments." Civitello argues on brief that he was
"correct to question the jury in voir dire regarding the range of
punishments in order to determine if there were any possible bias
or prejudice in this area."
We do not address Civitello's contention in this regard, as
he likewise, failed to properly preserve this issue for our
review. Although Civitello noted his objection on the basis that
"sentencing was an issue in controversy," Civitello failed to
proffer what his questions pertaining to sentencing would have
been. Accordingly, we cannot address his arguments on appeal.
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See Barrett v. Commonwealth, 231 Va. 102, 108, 341 S.E.2d 190, 194
(1986) ("Because the record fails to contain a proffer of the
evidence sought to be introduced, we cannot consider these alleged
errors."); see also Rule 5A:18. 3
Finally, Civitello argues that the trial court erred in
finding the evidence sufficient to support his convictions for the
charges against him. Again, we disagree.
Our standards for reviewing sufficiency of
the evidence are well established. We must
view the evidence and all reasonable
inferences in the light most favorable to
the Commonwealth, and the trial court's
judgment will be affirmed unless plainly
wrong or without evidence to support it.
Additionally, the credibility of witnesses
and the weight to be given their testimony
are questions exclusively within the
province of a jury.
Barker v. Commonwealth, 230 Va. 370, 373, 337 S.E.2d 729, 732
(1985) (citations omitted).
Civitello does not contend that the Commonwealth failed to
establish the elements of any specific offense. Instead, he
argues that because the complaining witnesses' testimony was
"frequently in conflict," because no medical evidence was
presented, and because there was "often no evidence of lascivious
3
Nevertheless, the Supreme Court of Virginia recently
reversed the decision in Hill, holding "that in a non-capital
case, neither the defendant nor the Commonwealth has a
constitutional or statutory right to question a jury panel about
the range of punishment that may be imposed upon the defendant."
Commonwealth v. Hill, 264 Va. 315, 319, 568 S.E.2d 673, 676
(2002).
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intent," the convictions should be reversed pursuant to the
Virginia Supreme Court's holding in Willis & Bell v. Commonwealth,
218 Va. 560, 238 S.E.2d 811 (1977).
However, Willis & Bell is clearly inapposite to the case at
bar.
In that case, the victim's testimony was
wholly uncorroborated and her testimony on
direct examination conflicted with her
testimony on cross-examination and at the
preliminary hearing. Moreover, without
explanation, she waited nearly a month
before reporting the alleged offenses. She
also tried to withdraw the arrest warrants[,
and] [h]er reputation in the community for
truthfulness was "low." For these reasons,
[the Court] held that the victim's story was
"incredible as a matter of law. "
Barker, 230 Va. at 373-74, 337 S.E.2d at 732 (quoting Willis &
Bell, 218 Va. at 564, 238 S.E.2d at 813).
In the present case, the complaining witnesses' testimony was
substantially corroborated by the testimony of the other
witnesses. Indeed, their testimony pertaining to the incidents at
issue was virtually identical. Furthermore, Civitello himself
made incriminating statements to police, specifically admitting
that he had engaged in sexual contact with each of the child
victims. In his own testimony, Civitello likewise, conceded that
he had experienced sexual contact with the children.
Additionally, medical evidence is not necessary for a finding
of guilt on these charges. Moreover, "[i]ntent is frequently
shown by circumstances or by a person's conduct." Burns v.
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Commonwealth, 261 Va. 307, 338, 541 S.E.2d 872, 892 (2001). The
jury here was presented with a substantial amount of evidence,
both direct and circumstantial, from which it could reasonably
infer that Civitello committed the offenses and that he did so
with the requisite intent. See Commonwealth v. Taylor, 256 Va.
514, 518, 506 S.E.2d 312, 314 (1998) ("The fact finder, who has
the opportunity to see and hear witnesses, has the sole
responsibility to determine . . . inferences to be drawn from
proven facts."). We cannot say as a matter of law that the jury's
determination was plainly wrong or without evidence to support it.
Accordingly, we affirm the trial court's judgment. However,
we remand with instructions to the trial court to correct the
clerical error appearing in the July 16, 2001 sentencing order,
sentencing Civitello to serve 5 years in prison on Indictment
Number CR00-88, as the jury's verdict form and the conviction
order itself clearly reflect that Civitello was found not guilty
of that charge.
Affirmed and remanded.
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