Edward Louis Elam, a/k/a Ed Louis Elam v. Commonwealth of Virginia ( 2007 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Clements and Senior Judge Coleman
Argued at Richmond, Virginia
EDWARD LOUIS ELAM, A/K/A
ED LOUIS ELAM
MEMORANDUM OPINION * BY
v. Record No. 3046-06-2 JUDGE JEAN HARRISON CLEMENTS
DECEMBER 11, 2007
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY
Leslie M. Osborn, Judge
George E. Marzloff (George E. Marzloff & Associates, P.C., on
brief), for appellant.
Gregory W. Franklin, Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.
Edward Louis Elam (appellant) was convicted in a bench trial of rape, in violation of
Code § 18.2-61. On appeal, he contends the trial court erred in finding the evidence sufficient,
as a matter of law, to support his conviction. We disagree and affirm appellant’s conviction.
As the parties are fully conversant with the record in this case, and because this
memorandum opinion carries no precedential value, this opinion recites only those facts and
incidents of the proceedings as are necessary to the parties’ understanding of the disposition of
this appeal.
I. BACKGROUND
“Under familiar principles of appellate review, we view the evidence and all reasonable
inferences fairly deducible from that evidence in the light most favorable to the Commonwealth,
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
the party that prevailed below.” Banks v. Commonwealth, 41 Va. App. 539, 543, 586 S.E.2d
876, 877 (2003). So viewed, the evidence established that, C.J., a thirteen-year-old girl, had
lived with her twin sister, C., her younger brother, D., her mother, Patricia Elam (mother), and
appellant since 1992 in Mecklenburg County. Appellant was D.’s biological father, and Avis
Johnson, mother’s first ex-husband, was C.J.’s and C.’s biological father. C.J. and C. attended
Blue Stone Middle School
One morning sometime between September 1, 2001 and November 24, 2001, C.J. stayed
at home from school because she had menstrual cramps. Appellant also remained home while
C.J. slept in her room. At some point that morning, appellant entered C.J.’s room, pulled her to
the end of her bed by her ankles, removed her shirt and her pants, and raped her. Subsequently,
he left the bedroom and C.J. fell asleep. When she awoke, she was nude and walked upstairs to
find appellant also nude in the laundry room. Appellant yelled at her to get dressed.
After C.J. dressed, appellant and one of his friends drove her to school. C.J. entered the
school alone and stopped by the office, informed school personnel that she was late, but she
provided no excuse note. C.J. signed-in and went to third period, telling no one about the rape.
On November 24, 2001, mother separated from appellant, withdrew C.J. and C. from
Blue Stone Middle School, and moved with her children to Brunswick County. In February
2004, C.J. told her uncle, Robert Douglas, with whom she and her family lived, that appellant
had raped her. In October 2005, mother filed for divorce from appellant in the Circuit Court for
Baltimore County, Maryland, also seeking sole custody of D. On December 27, 2005, C.J. told
an investigator that appellant had raped her. Subsequently, appellant was charged with rape.
At trial, C.J. testified that on the morning of the rape, mother was working at the Quik
Stop and C. was attending school. She also stated that she delayed reporting the rape because
she was “scared,” “afraid of what would happen,” and told her uncle in 2004 because she “was
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no longer under a roof” where appellant was abusing her. On cross-examination, she admitted
that she knew mother and appellant had a custody dispute concerning D., but denied that her rape
allegation stemmed from that dispute.
Mother testified that she worked during the day at the Quik Stop in La Crosse throughout
the fall of 2001 and denied working at the Quik Stop in Chase City during this time. She
testified that her schedule varied and she could not recall the exact times of her daily shift in the
fall of 2001. Mother stated that if her child remained home from school sick, she usually, but not
always, remained home from work as well. During the September to November 2001 time
period, mother testified that appellant had no steady job.
Mother further claimed that she did not use her children against their fathers.
Considering appellant’s history of domestic violence with mother, mother testified that she no
longer wanted her children to have contact with appellant.
Edwina Smith testified that she owned and operated the Quik Stop convenience stores in
La Crosse and Chase City between September 1, 2001 and November 24, 2001. Smith also
stated that during that same time period, mother worked for the Chase City store from 2:30 p.m.
to 12:30 a.m. Smith testified that mother never worked the morning shift. Smith claimed that on
October 5, 2001, mother did not work her scheduled shift because her child was sick. On
cross-examination, Smith stated that she did not verify the employees’ presence during their
shifts and that “it’s always a possibility” that the schedule documenting hours worked by
employees reflected mistakes.
Yvonne Allgood, a guidance counselor at Blue Stone Middle School during C.J.’s
attendance, testified that the attendance clerk updated the attendance records for each school day.
Allgood stated that, according to C.J.’s attendance record, she missed no school days in
September 2001, had an excused absence October 5, 2001, had no tardies, and otherwise
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attended every school day during the fall of 2001 until the date of her withdrawal on November
26, 2001.
Allgood also testified that attendance is taken at the beginning of each day in homeroom
and then entered as the official attendance record in the school computer system. Occasionally,
children missing in homeroom are noted as present by mistake. If a student reports to school
later in the day, the record is updated. Allgood stated that it “could happen” that a child late for
school could appear in between class and go directly to her next class without first reporting to
the school office. Allgood further testified that the attendance record is not “one hundred percent
because we’re human,” and she was sure the record reflected mistakes.
At the close of all of the evidence, appellant argued a motion to strike, claiming the
evidence did not support a conviction beyond a reasonable doubt because C.J. “contradicted
herself with respect to her own testimony.” The trial court denied appellant’s motion and
convicted appellant of rape.
This appeal followed.
II. ANALYSIS
On appeal, appellant contends the evidence was insufficient, as a matter of law, to
support his conviction because C.J.’s “testimony [was] so inherently incredible and contrary to
human experience and behavior that it [was] unworthy of belief.” We disagree.
“In accord with well-established principles, we will not reverse the judgment of the trial
court unless it is plainly wrong or without evidence to support it.” Nobrega v. Commonwealth,
271 Va. 508, 518, 628 S.E.2d 922, 927 (2006). “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.” Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455
S.E.2d 730, 732 (1995).
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“[A] conviction for rape . . . may be sustained solely upon the uncorroborated testimony
of the victim.” Wilson v. Commonwealth, 46 Va. App. 73, 87-88, 615 S.E.2d 500, 507 (2005)
(citing Garland v. Commonwealth, 8 Va. App. 189, 191-93, 379 S.E.2d 146, 147 (1989)). “[I]t is
not sufficient to warrant a verdict of guilty beyond a reasonable doubt if the evidence is
inherently incredible, or so contrary to human experience or to usual human behavior as to
render it unworthy of belief.” Willis v. Commonwealth, 218 Va. 560, 563, 238 S.E.2d 811, 813
(1977) (citations omitted). In other words, the testimony “‘must be either so manifestly false that
reasonable men ought not to believe it, or it must be shown to be false by objects or things as to
the existence and meaning of which reasonable men should not differ.’” Cardwell v.
Commonwealth, 209 Va. 412, 414, 164 S.E.2d 699, 701 (1968) (quoting Burke v. Scott, 192 Va.
16, 23, 63 S.E.2d 740, 744 (1951)).
In this case, the Commonwealth relied almost exclusively on C.J.’s testimony to establish
appellant’s guilt. The trial court, that had the opportunity to observe C.J. as a witness, credited
her testimony. Thus, we are bound by the court’s credibility determination unless C.J.’s
testimony was inherently incredible, as a matter of law. See Nobrega, 271 Va. at 518, 628
S.E.2d at 927.
Appellant claims C.J.’s testimony was inherently incredible, as a matter of law, because
Smith testified that mother never worked mornings and in fact, contrary to mother’s own
testimony, she worked at the Chase City location instead of the La Crosse location during that
time. Appellant also asserts that according to Allgood’s testimony, C.J. had no tardy notations
on her school attendance record from September through November 2001. Therefore, appellant
argues, because Smith and Allgood had “no reason to lie,” C.J., having testified that her mother
was at work that morning and claiming that she attended school tardy that day, must have
fabricated the rape. Appellant also finds it “unbelievable” that C.J. claimed to have fallen asleep
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immediately after the rape and then later accepted a ride from appellant and his friend without
informing the friend of the rape. Appellant further discredits C.J.’s testimony because she
delayed reporting the rape.
Notwithstanding appellant’s claims to the contrary, the discrepancies presented by
Smith’s and Allgood’s statements, and C.J.’s claim that she fell asleep following the rape and
later accepted a ride from appellant and his friend without telling the friend of the rape, do not
render C.J.’s account of the rape inherently incredible. Indeed, the trial court as fact finder could
reasonably infer that mother simply was not home the morning of the rape, finding irrelevant
when and where mother worked that day. The trial court also could properly conclude C.J. was
in fact tardy to school the morning of the rape, crediting Allgood’s explanations on
cross-examination that in certain scenarios, C.J. could have been absent but instead, marked
present, because the school records were not devoid of errors. Additionally, the trial court could
reasonably believe C.J.’s claim that she fell asleep after the rape and then accepted a ride from
appellant and his friend without informing the friend of the rape.
We also reject appellant’s claim that C.J.’s delay in reporting the rape makes her
testimony incredible. “To the contrary, [the victim’s] delay is explained by and completely
consistent with the all too common circumstances surrounding sexual assault on minors--fear of
disbelief by others and threat of further harm from the assailant.” Woodard v Commonwealth,
19 Va. App. 24, 28, 448 S.E.2d 328, 330 (1994). Here, C.J. testified that she delayed reporting
the rape because she was “scared,” “afraid of what would happen,” and eventually told her uncle
because she was “no longer under a roof where [she] was being abused” by appellant. Mother
also conceded that appellant had a history of domestic violence, and in fact, her children
witnessed instances when she and appellant argued and pushed. Given these circumstances,
C.J.’s delay in reporting the rape was not so unusual or inherently incredible.
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It is clear, therefore, that C.J.’s account of the incident was consistent with regard to
appellant’s commission of the rape. To the extent that C.J.’s testimony contained minor
inconsistencies, it was up to the trial court as the finder of fact to account for those discrepancies
in weighing their credibility. Thus, we hold that C.J.’s testimony was not inherently incredible,
as a matter of law.
Appellant also challenges the sufficiency of the evidence, as a matter of law, to support
his conviction beyond a reasonable doubt because the trial court made a “finding of fact” that
“this [was] a close case.” Furthermore, appellant argues the Commonwealth “failed to prove the
act was without the victim’s consent.” Appellant, however, never made these specific arguments
to the trial court.
Rule 5A:18 provides in pertinent part, that “[n]o ruling of the trial court . . . will be
considered as a basis for reversal unless the objection was stated together with the grounds
therefor at the time of the ruling, except for good cause shown or to enable the Court of Appeals
to attain the ends of justice.” Pursuant to Rule 5A:18, we “will not consider an argument on
appeal [that] was not presented to the trial court.” Ohree v. Commonwealth, 26 Va. App. 299,
308, 494 S.E.2d 484, 488 (1998). Thus, it is clear that, despite having had the opportunity to do
so, appellant did not raise below, and the trial court was not given the opportunity to address, the
claims appellant now raises on appeal. We hold, therefore, that appellant is barred by Rule
5A:18 from raising these claims for the first time on appeal.
Moreover, our review of the record reveals no reason to invoke the “ends of justice” or
“good cause” exceptions to Rule 5A:18. See Redman v. Commonwealth, 25 Va. App. 215, 221,
487 S.E.2d 269, 272 (1997) (“In order to avail oneself of the [ends of justice] exception, a
defendant must affirmatively show that a miscarriage of justice has occurred, not that a
miscarriage might have occurred.”); M. Morgan Cherry & Assocs. v. Cherry, 38 Va. App. 693,
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702, 568 S.E.2d 391, 396 (2002) (en banc) (holding that the “good cause” exception to Rule
5A:18 will not be invoked where appellant had the opportunity to raise the issue at trial but did
not do so).
For these reasons, we affirm appellant’s conviction.
Affirmed.
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