Bryon Ward Possich v. Commonwealth of Virginia ( 2016 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Beales and Decker
UNPUBLISHED
Argued at Richmond, Virginia
BRYON WARD POSSICH
MEMORANDUM OPINION* BY
v. Record No. 0566-15-1 JUDGE MARLA GRAFF DECKER
MARCH 29, 2016
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG
AND COUNTY OF JAMES CITY
Michael E. McGinty, Judge
John D. Konstantinou (Williamsburg Law Group, PLC, on brief), for
appellant.
David M. Uberman, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Bryon W. Possich appeals his two convictions of taking indecent liberties with a child in
violation of Code § 18.2-370. He argues that the evidence was insufficient to support the
convictions because the witness testimony against him was not credible. We hold that the record
supports the jury’s findings regarding witness credibility and the evidence of the crimes is sufficient
to support the convictions. Therefore, we affirm.
I. BACKGROUND
The victim of both offenses was the young daughter of the appellant and his estranged wife.
The child and her younger brother lived with their mother. The appellant resided with his mother.
On weekends, the children visited the appellant at his mother’s house, until the children’s mother
learned of the offenses.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
At trial, the victim, who was five years old at the time of the offenses, testified about
certain intimate touchings that occurred while she visited the appellant at her grandmother’s
house.1 The child circled the male and female genitalia on drawings to identify which body parts
she referred to as “wee wee” and “pee pee.” She then testified that the appellant asked if he
could touch her “pee pee.” According to her, after the request he used his finger to touch the
“outside” of her “pee pee.” The victim also testified that the appellant asked her to touch his
“wee wee” and she complied. She described his “wee wee” as being “smooth,” “bumpy,” “soft,”
and approximately six inches long. The victim stated that they were alone in the appellant’s
bedroom when these incidents occurred. When the appellant asked her to touch his penis, he was
sitting clothed in bed. After making this request, the appellant removed his clothes.
The child explained that she told her neighbor, “Amy,” about the incidents. She said that
she did not tell her mother because she was afraid that her mother would be angry with her.
During cross-examination, when the child was asked whether she told her neighbor that “the
same thing happens” to her little brother, she responded that she did not remember making such
a statement. The victim also testified that she loved her father. At the conclusion of her
testimony, she asked, “Is it over?”
Amy Aubuchon, a neighbor and friend of the mother, confirmed that the child reported
the abuse to her. Aubuchon explained the context of the disclosure. She testified that one day
when she was caring for the victim, the child “messed on the toilet seat.” As Aubuchon cleaned
the bathroom, the victim asked her to apply some diaper ointment “on her bottom.” Aubuchon
did so with a gauze pad. The child asked her why she used the gauze pad. Aubuchon responded
that because she was not her mother, she did not “want to use her bare hand on her.” The child
asked Aubuchon, “[W]hat about daddies[?]” According to Aubuchon, the victim “kept wanting
1
The trial court ruled that the child was competent to testify.
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to talk about mommies and daddies and who’s allowed to touch where.” The victim then
informed her that “her dad had asked to touch her between her legs and that he had her touch
him.”2 She also told Aubuchon that the appellant “had asked her to put his wee wee in her
mouth.” According to Aubuchon, the victim said that she had reported the incident to her
grandmother, who had yelled at her. The victim had not told her mother because “[s]he didn’t
want her mom to be mad at her.” Aubuchon alerted the victim’s mother, who was at work. The
child’s mother asked Aubuchon to contact “the child advocate” immediately, and Aubuchon did
so.
Aubuchon admitted that she was an eight-time convicted felon. She also explained that
she was neither offered nor expecting anything in exchange for her testimony.
The appellant attempted to impeach Aubuchon with a statement she had written the day
that she spoke with the victim. The written statement largely corroborated Aubuchon’s
testimony but contains a few points about which she did not initially testify on direct
examination. The statement provides that the child told her that when the appellant asked to
touch her, she said no. According to the statement, the child complained that her brother “did
not like it when his father was naked” and that “daddy do[es] things with” her brother, as well.
However, Aubuchon clarified that the child did not specify what the appellant “did to” her
brother.
The victim’s mother testified that she had noticed a change in her daughter’s demeanor
over the course of the preceding year, after the offenses first occurred but before the mother had
learned about them. Each time she took her daughter to the appellant’s residence, the child
would cry, scream, and beg her mother “not to leave her.” At the time, the mother thought that
2
During her testimony, Aubuchon did not specify where the child said the appellant
asked her to touch him, but Aubuchon’s written statement, admitted into evidence, identified the
appellant’s “wee wee” as the location.
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her child’s anxiety was caused by a change in her school situation. The mother confirmed that
she first learned of the allegations of sexual abuse through Aubuchon. According to the mother,
she never told her daughter what to say to anyone or how to testify. She explained further that
one of the investigators had instructed her not to talk with her daughter at all about the incidents
because “[i]t could be misconstrued as [her mother] telling her what to say.”
Officer Brittany O’Bryant of the Williamsburg Police Department participated in the
investigation of the offenses and spoke with the victim on six occasions prior to trial, between
December 2013 and April 2014. O’Bryant testified that the child did not want her mother to
know about the sexual abuse because she was afraid that her mother would be mad at her. The
officer explained that during her first meeting with the victim, the child said that she was afraid
when the appellant physically picked her up “because he was drunk” and she was worried that he
would drop her. When asked to name the members of her family, the child omitted her father
and her paternal grandmother. The child did not tell O’Bryant about any sexual abuse until their
second meeting. At that time, she disclosed to O’Bryant that the appellant touched “her body”
and she had touched his “wee wee.” The officer acknowledged that in some respects, the child’s
various accounts over the course of the investigation differed. For example, during one meeting,
the child “held up four fingers indicating” that “she touched her daddy’s wee wee” four times.
Another time, she said that the touching happened only once.
Tina Sawyer, the supervisor of the Child Protective Services Division of James City
County Social Services, also met with the victim. Sawyer testified that the child told her that
when the appellant asked her to touch his “wee wee,” she told him no, but that when she
“accidentally” touched it, his “wee wee” felt “squishy.” The victim also told Sawyer that when
her father asked to touch her vaginal area, she told him no. Regarding the incidents, the child
informed Sawyer “it always happened” when she went to her grandmother’s house. She said that
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she told her grandmother about it once. According to Sawyer, the child indicated that if sexual
abuse was to happen again, she would not tell her mother because “[s]he was afraid that her
mother would be mad at her.”
The appellant presented evidence in his defense. He played for the jury a video of an
interview with the victim’s brother. During the interview, the brother said that he had never been
touched in his genital area or seen anyone else touched in theirs. The appellant also showed the
jury a video of Sawyer’s interview with the victim. The recording of the victim’s interview was
consistent with Sawyer’s testimony.
Jennifer Possich, the appellant’s mother, testified on his behalf. She denied that the
victim had ever complained to her about inappropriate touching by the appellant. Possich also
testified that the victim’s mother had told her that the appellant was “controlling her” and “she
was going to fix it.” Mrs. Possich said that the appellant spent almost all of his time in his
bedroom and that the victim went into his room for less than one minute at a time. However, on
cross-examination, she admitted that she left the children alone with the appellant on “rare
occasions” while she ran errands.
The appellant also testified, unequivocally denying the accusations. He stated that he had
never “ask[ed] to touch” his daughter and had never asked her to touch his penis. In addition, he
averred that there was no “oral sex involved.” Further, he testified that he was alone with his
daughter “[v]ery infrequently” and for only two minutes at most. On cross-examination, he
admitted that he had told a police investigator that he was “never” alone with his daughter but
said that he had meant “almost never.”
The jury found the appellant guilty of both counts of taking indecent liberties with a
child. He was sentenced to incarceration for a total of eleven years.
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II. ANALYSIS
The appellant argues that the evidence was insufficient to prove that he took indecent
liberties with his daughter because the testimony supporting the allegations was incredible.3 His
challenge rests on the credibility of the victim’s testimony as well as that of Aubuchon and the
victim’s mother. In support of his claim, the appellant relies on inconsistencies in the victim’s
statements, including how many times the abuse occurred, the specific nature of the touching,
whether her brother was similarly abused, and whether she reported the abuse to her paternal
grandmother.
The appellant was convicted under Code § 18.2-370. That statute provides, in pertinent
part, that anyone eighteen years of age or older is guilty of taking indecent liberties with a child
if he or she:
with lascivious intent, knowingly and intentionally . . . [e]xpose[s]
his or her sexual or genital parts to any child [under the age of 15
years,] . . . propose[s] that any such child expose his or her sexual
or genital parts[,] . . . [p]ropose[s] that any such child feel or fondle
. . . the sexual or genital parts of such person[,] or propose[s] that
such person feel or fondle the sexual or genital parts of any such
child.
We review the challenge to the sufficiency of the evidence under well-established legal
principles. In our analysis, we consider “the evidence and all reasonable inferences fairly
deducible therefrom in the light most favorable to the Commonwealth.” Molina v.
3
To the extent that the appellant separately challenges the measure of proof supporting
the element of lascivious intent, we hold that the issue is procedurally barred because he did not
raise it below. See Rule 5A:18. The appellant’s motion to strike was limited to challenging the
witnesses’ credibility. Further, he did not contest the element of intent in his motion to set aside
the verdict. Consequently, Rule 5A:18 prevents the appellant from now challenging the element
of lascivious intent on appeal. See, e.g., Redman v. Commonwealth, 25 Va. App. 215, 220, 487
S.E.2d 269, 272 (1997). Although the rule provides narrow exceptions for good cause shown or
to meet the ends of justice, neither of which was suggested by the appellant, we conclude that
based on the record neither of these exceptions applies. See Andrews v. Commonwealth, 37
Va. App. 479, 494, 559 S.E.2d 401, 409 (2002); Redman, 25 Va. App. at 221, 487 S.E.2d at 272.
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Commonwealth, 272 Va. 666, 675, 636 S.E.2d 470, 475 (2006) (quoting Ward v.
Commonwealth, 264 Va. 648, 654, 570 S.E.2d 827, 831 (2002)). We will affirm the verdict
unless the fact finder was “plainly wrong” or the conviction lacked “evidence to support it.” Id.
at 675-76, 636 S.E.2d at 475 (quoting Ward, 264 Va. at 654, 570 S.E.2d at 831). This Court
does not “substitute [its] own judgment for that of the trier of fact.” Wactor v. Commonwealth,
38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002). “Instead, the relevant question is whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.” Kelly v.
Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc) (quoting Jackson
v. Virginia, 443 U.S. 307, 319 (1979)).
The law is clear that determining the credibility of the witnesses and the weight afforded
the testimony of those witnesses are matters left to the trier of fact, who has the ability to hear
and see these witnesses as they testify. Burnette v. Commonwealth, 60 Va. App. 462, 476, 729
S.E.2d 740, 746 (2012). “The conclusions of the fact finder on issues of witness credibility ‘may
only be disturbed on appeal if this Court finds that [the witness’] testimony was inherently
incredible, or so contrary to human experience as to render it unworthy of belief.’” Johnson v.
Commonwealth, 58 Va. App. 303, 315, 709 S.E.2d 175, 181 (2011) (alteration in original)
(quoting Robertson v. Commonwealth, 12 Va. App. 854, 858, 406 S.E.2d 417, 419 (1991)). “To
be ‘incredible,’ 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.’” Juniper v. Commonwealth, 271 Va. 362, 415, 626
S.E.2d 383, 417 (2006) (quoting Cardwell v. Commonwealth, 209 Va. 412, 414, 164 S.E.2d 699,
701 (1968)).
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A legal determination that a witness is inherently incredible is very different from the
mere identification of inconsistencies in a witness’ testimony or statements. The law makes
clear that testimony may be contradictory or contain inconsistencies without rising to the level of
being “inherently incredible” as a matter of law. Juniper, 271 Va. at 415, 626 S.E.2d at 417
(facts such as delayed reporting or giving inconsistent statements during an investigation do not
necessarily render a witness’ testimony “unworthy of belief,” but instead are appropriately
weighed by the jury as part of its determination of credibility of the witness); Fordham v.
Commonwealth, 13 Va. App. 235, 240, 409 S.E.2d 829, 832 (1991) (“Prior inconsistent
testimony is a factor in determining the credibility of a witness, but it does not automatically
render the witness’ testimony incredible.”); see, e.g., Crump v. Commonwealth, 20 Va. App.
609, 619, 460 S.E.2d 238, 242 (1995) (holding that the inconsistencies in the testimony of the
victim and her mother did not “render the evidence incredible as a matter of law”).
Consequently, “[p]otential inconsistencies in testimony are resolved by the fact finder,” not the
appellate court. Towler v. Commonwealth, 59 Va. App. 284, 292, 718 S.E.2d 463, 467 (2011).
“[T]here can be no relief” in this Court if a witness testifies to facts “which, if true, are sufficient
to maintain the[] verdict, . . . [i]f the trier of facts . . . base[d] the verdict upon that testimony,”
even if that “witness’ credit [was] impeached by contradictory statements.” Smith v.
Commonwealth, 56 Va. App. 711, 718-19, 697 S.E.2d 14, 17 (2010) (quoting Swanson v.
Commonwealth, 8 Va. App. 376, 379, 382 S.E.2d 258, 259 (1989)).
We first address the sufficiency of the victim’s testimony. It is well established that a
conviction for a “sexual offense[] may be sustained solely upon the uncorroborated testimony of
the victim.” Wilson v. Commonwealth, 46 Va. App. 73, 87, 615 S.E.2d 500, 507 (2005).
The reason for the rule is the typically clandestine nature of the
crime. There are seldom any witnesses to such an offense except
the perpetrator and the victim. . . . Thus, it is clear that the victim’s
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testimony, if credible and accepted by the finder of fact, is
sufficient evidence, standing alone, to support the conviction.
Fisher v. Commonwealth, 228 Va. 296, 299, 321 S.E.2d 202, 204 (1984).
The appellant’s six-year-old daughter testified that he asked her to touch his “wee wee”
and she complied. She described his “wee wee” as being “smooth,” “bumpy,” and six inches
long. These details lent credibility to her report because they would not typically be known to a
six-year-old child. Additionally, the victim testified that the appellant asked to touch her “pee
pee.” The child circled the male and female genitalia on drawings to identify which body parts
she referred to as “wee wee” and “pee pee.” The jury also heard testimony about inconsistent
statements made by the child. However, none of the inconsistent statements by the victim
involved her equivocating about whether the appellant asked her to touch his penis or whether he
asked to touch her vagina.4 The child gave clear descriptions of the body parts and the requests
in her testimony, which was that of a scared, embarrassed, naïve child.
Contrary to the appellant’s suggestion, the child’s testimony was not inherently incredible
or so contrary to human experience as to render it unworthy of belief. Compare Nobrega v.
Commonwealth, 271 Va. 508, 513, 519, 628 S.E.2d 922, 924, 927 (2006) (holding that the
victim, who was seven years old when she was first raped, was not inherently incredible and that
her testimony alone was sufficient to support the convictions), and Love v. Commonwealth, 18
Va. App. 84, 89-90, 441 S.E.2d 709, 712-13 (1994) (affirming convictions where the child
victim delayed seven years before reporting the offenses), with Willis & Bell v. Commonwealth,
218 Va. 560, 563-64, 238 S.E.2d 811, 813 (1977) (holding that the witness’ account of the crime
was “incredible as a matter of law” because her testimony was “replete with contradictions and
inconsistencies” as well as “contrary to human experience”). The record makes clear that the
4
The child initially told Sawyer nothing happened, but according to Sawyer, she then
“clarif[ied]” the statement.
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appellant’s illicit requests provided the bases for the charges, and the child victim’s testimony
specifically describing the acts of sexual abuse entirely supported the convictions.
The credibility of the victim’s trial testimony, which was sufficient on its own, was
corroborated by her out-of-court complaints. See, e.g., Wilson, 46 Va. App. at 83, 615 S.E.2d at
505 (explaining that an out-of-court complaint made by a victim of sexual assault is admissible
as corroboration of her testimony but not as independent evidence). The fact finder could
reasonably have concluded that the variations among the victim’s complaints to others who
testified resulted from her comfort level with the various people in whom she confided or with
whom she spoke during the investigation. It is entirely reasonable that the child victim might
confide more freely and with more detail in a babysitter rather than strangers. It is also logical
that the more comfortable she felt with a stranger over time, the more detailed the information
she would reveal. Further, the passage of time easily explains the child victim being hesitant,
inconsistent, or unable to recall certain details when discussing with professionals the intimate
encounters with her father.
The context of the initial complaint that the child made to Aubuchon was a setting in
which she felt comfortable and the subject arose freely and spontaneously based on Aubuchon’s
innocuous explanation for using gauze when touching the victim’s body. Further, to the extent
that the victim also spoke about other sexual acts committed by her father against her when
talking about the charged offenses with others, prior truthful accusations bolster a witness’
credibility rather than discredit it.5 See Roadcap v. Commonwealth, 50 Va. App. 732, 740, 653
S.E.2d 620, 624 (2007).
5
The fact that additional charges were not brought against the appellant relating to the
victim’s other accusations does not compel the conclusion that they were false. See, e.g., Gray v.
Commonwealth, 233 Va. 313, 331, 356 S.E.2d 157, 167 (1987) (“The institution of criminal
charges is a matter of prosecutorial discretion.”).
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Additional evidence corroborating the child’s testimony and statements to others
specifically describing the sexual abuse was her general statement that she loved her father
coupled with her failure to include him and her paternal grandmother when asked to name her
family members early in the investigation. This evidence supports an inference that she had
conflicting feelings about them due to the sexual abuse. Nevertheless, the child confirmed at
trial that she loved her father and wanted the trial to be over. The fact that the prosecution chose
to offer the child’s testimony over closed-circuit television showed an independent assessment
that testifying was difficult and traumatic for the young victim. These facts reflect confusion of
a child of tender years who does not want to hurt her father and yet knows that he did something
wrong.
Based on the record, a reasonable fact finder with all of the evidence before it could
easily determine that the inconsistencies in the victim’s various statements arose from her youth,
her fragile memory, the time span of the investigation, the traumatic nature of the offenses, the
fact that the assailant was her own father, and her feelings of complicity as demonstrated by her
reluctance for her mother to learn of the abuse. See Smith, 56 Va. App. at 719, 697 S.E.2d at 18
(“[A] ‘victim’s youth, fright and embarrassment [may] provide[] the jury with an acceptable
explanation’ for a victim’s otherwise unexplainable statements or actions.” (alterations in
original) (quoting Corvin v. Commonwealth, 13 Va. App. 296, 299, 411 S.E.2d 235, 237
(1982))); see also Fisher, 228 Va. at 298-300, 321 S.E.2d at 203-04 (affirming conviction where
the evidence included testimony of the ten-year-old victim that she delayed reporting the abuse
in part because “she ‘didn’t want to hurt mama’”). The child’s testimony was neither inherently
incredible nor so contrary to human experience as to render it unworthy of belief. Consequently,
we, as an appellate court, are bound by the jury’s finding that she was credible. This conclusion
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was wholly supported by the record. Therefore, the child’s account alone was sufficient to prove
the offenses, despite the appellant’s claims about inconsistencies among her various statements.
Additionally, evidence from witnesses other than the child victim supports her accounts
of the offenses. Her mother testified that her child’s demeanor had changed over the previous
year in that she would cry, scream, and beg not to be left with her father. At the time, the mother
was unaware of the sexual abuse and thought that the behavior was related to a change at school.
However, viewed in context, this evidence supports the child’s revelations of indecent liberties
committed by her father. The jury also heard the appellant deny that he made these sexual
requests of the child or that he inappropriately touched his daughter or had her touch him. The
appellant further suggested that he did not have the opportunity to commit the offenses because
he was alone with her for no more than two minutes at a time. However, his mother testified that
she occasionally left the children with him while she ran errands. On cross-examination, the
appellant admitted that he had told the police that he was “never” alone with his daughter, but he
testified that he had meant “almost never.” The jury, in rendering the verdicts, rejected the
appellant’s testimony and his various related self-serving explanations in favor of the credible
evidence of guilt. Sanford v. Commonwealth, 54 Va. App. 357, 364, 678 S.E.2d 842, 846
(2009). The rejection of those hypotheses of innocence was not plainly wrong. Id.; see Wood v.
Commonwealth, 57 Va. App. 286, 306, 701 S.E.2d 810, 819 (2010) (whether a “hypothesis of
innocence is reasonable is itself a question of fact and, therefore, is binding on appeal unless
plainly wrong” (quoting Emerson v. Commonwealth, 43 Va. App. 263, 277, 597 S.E.2d 242, 249
(2004))).
Finally, we address the appellant’s suggestion that the mother and her friend coached the
child to fabricate the allegations and the jury should not have believed their testimony. The jury
had the opportunity to consider, and reject, the appellant’s evidence that the child’s mother and
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Aubuchon had possible motive to lie and bring false allegations. The child’s repeated statements
that she feared that recounting the intimate actions involving her father would cause her mother
to be angry with her contradicted the appellant’s suggestion that her mother encouraged her to
fabricate the complaints. The victim’s mother testified that she followed the investigator’s
instruction not to discuss any of the allegations with her daughter. Aubuchon testified regarding
the circumstances that led to the child’s unprompted disclosure of the offense committed by her
father. The jury had the opportunity to watch and listen to the victim, her mother, and Aubuchon
as they testified, including Aubuchon’s acknowledgment of her criminal history. Their
testimony was not inherently incredible or so contrary to human experience as to render it
unworthy of belief.
The jury found the child victim credible and accepted her account of the crimes. At the
same time, the jury rejected the appellant’s hypotheses of innocence, including his claim that the
child’s mother and Aubuchon lied due to the mother’s acrimonious relationship with him. Any
inconsistencies in the testimony were resolved by the jury when it rendered the verdicts.6 For
these reasons, the evidence was sufficient to support the convictions.
III. CONCLUSION
The witness testimony supported the convictions and was not inherently incredible. The
jury’s acceptance of that testimony was reasonable and was not plainly wrong. Therefore, we
affirm the appellant’s convictions for taking indecent liberties with a child.
Affirmed.
6
We recognize that if “the evidence of guilt or innocence remains anywhere near
equipoise—that is, the facts are ‘equally susceptible to two or more constructions’—then
reasonable doubt exists as a matter of law.” Haskins v. Commonwealth, 44 Va. App. 1, 9, 602
S.E.2d 402, 406 (2004) (quoting Feigley v. Commonwealth, 16 Va. App. 717, 724, 432 S.E.2d
520, 525 (1993)). However, where, as the jury did in this case, “the factfinder has rejected the
hypothes[e]s” of innocence “as unreasonable, that determination cannot be overturned as
arbitrary unless no rational factfinder would have come to that conclusion.” Id.
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