Da'Marcus Sharraya English v. Commonwealth of Virginia ( 2022 )

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges AtLee, Friedman and Raphael
Argued at Lexington, Virginia
DA’MARCUS SHARRAY ENGLISH
MEMORANDUM OPINION* BY
v. Record No. 1065-21-3 JUDGE FRANK K. FRIEDMAN
NOVEMBER 1, 2022
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
David B. Carson, Judge
(Chelesea Vaughan; Magee Goldstein Lasky & Sayers, on brief), for
appellant. Appellant submitting on brief.
Matthew J. Beyrau, Assistant Attorney General (Jason S. Miyares,
Attorney General, on brief), for appellee.
Following a jury trial, Da’Marcus Sharray English (“appellant”) was convicted of rape of a
child under the age of thirteen, and forcible sodomy of a child under the age of thirteen, both of
which involved a prior qualifying offense in violation of Code §§ 18.2-61, 18.2-67.1, and
18.2-67.5:3. He was also convicted of aggravated sexual battery of a child under the age of thirteen,
after having been convicted of a prior qualifying offense, in violation of Code §§ 18.2-67.3 and
18.2-67.5:2; object sexual penetration of a child under the age of thirteen, after having been
convicted of a prior qualifying offense, in violation of Code §§ 18.2-67.2 and 18.2-67.5:3; and
taking indecent liberties, after having been convicted of a prior qualifying offense, in violation of
Code §§ 18.2-370 and 18.2-67.5:2. The offense dates for all charges were between November 1,
2013, and October 7, 2016. Appellant received three life sentences plus thirty years to serve. On
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
appeal, he challenges the sufficiency of the evidence supporting his convictions as well as certain
evidentiary and discovery rulings. For the following reasons, we affirm the circuit court’s
judgment.
BACKGROUND
“In accordance with familiar principles of appellate review, the facts will be stated in the
light most favorable to the Commonwealth, the prevailing party at trial.” Poole v.
Commonwealth, 73 Va. App. 357, 360 (2021) (quoting Gerald v. Commonwealth, 295 Va. 469,
472 (2018)). Appellant and Brown were in a romantic relationship. In 2008, appellant moved in
with Brown and her three children, the oldest of whom was five-year-old O.B., the victim of his
convictions on appeal.1 Initially, Brown, her children, and appellant lived in Mountain View
Terrace Apartments, but moved to Peters Creek Apartments when O.B. was six years old.
Appellant cared for the children while Brown was at work. O.B. testified that she and
appellant often engaged in horseplay, but while they were living at Peters Creek Apartments, the
horseplay became sexual. O.B. recalled an incident at Peters Creek Apartments when appellant
climbed on top of her as she lay on her back in bed, spread her legs open, and “humped” her by
moving his pelvis back and forth on top of her vagina. Afterward, appellant told O.B. not to tell
her mother what had happened.
Over time, the sexual nature of appellant’s behavior toward O.B. escalated. O.B. recalled
that appellant “caress[ed]” her buttocks when they were alone in the bedroom. On one occasion
at the Peters Creek apartment, O.B. expressed anxiety about pulling a loose tooth, and appellant
told her he could “make her feel better.” As O.B. lay on appellant’s bed, he removed her pants
and underwear, and he performed oral sex for several minutes. Afterward, he accompanied O.B.
to the bathroom, and she extracted her tooth.
1
O.B. was born in October 2003.
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The Relevant Time Frame for the Underlying Charges
On November 1, 2013, shortly after O.B. turned ten, the family moved to a house on
Franwill Avenue. November 1, 2013, is the beginning date for the indictments against appellant
for the underlying charges. O.B. testified that the sexual abuse continued after the move. O.B.
recalled English removing her clothes to rub her breasts, buttocks, thighs, and vagina. He also
put his mouth on her breasts and vagina and performed oral sex on her. Initially, he rubbed his
erect penis against her vagina and attempted to penetrate her. O.B. stated that appellant engaged
in “constant play fight[s]” with her, followed by attempted sexual intercourse. She described it
as “a daily thing” that occurred “primarily” in her mother’s bedroom.
O.B. stated she cried out in pain when appellant attempted to have sex with her. She also
recalled an occasion where he grabbed her face, pushed his penis into her mouth, and instructed
her how to perform oral sex. O.B. testified that appellant first had sexual intercourse with her
when she stayed home from school due to sickness. She stated that appellant entered her
bedroom, sat down on the bed next to her, and began fondling her. When O.B. attempted to
crawl away on her hands and knees, appellant pulled her shorts to the side and had sex with her.
O.B. stated that appellant ejaculated on the floor.
After that, appellant engaged in vaginal and oral sex with O.B. “almost daily,”
ejaculating on the comforter and laundering it afterward. O.B. stated that these incidents
occurred before her first menstrual period when she was ten years old.2 O.B. stated that she was
frightened when she had her period because she feared she was bleeding from having had sexual
intercourse with appellant. Appellant began tracking O.B.’s period on his cell phone calendar.
He warned O.B. not to disclose their sexual activities to her mother.
2
O.B.’s mother testified that O.B. had her first period in May of 2014 when O.B. was ten
years old. Although O.B. also stated that she was ten years old when she had her first period, she
calculated that she was ten years old in May of 2013.
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O.B. began taking birth control pills to manage her periods. She testified that after she
was on birth control, appellant began ejaculating inside her during sexual intercourse. On
occasion, however, appellant punched O.B. in the abdomen after sex as an additional precaution
against pregnancy.
Appellant and Brown frequently argued over the course of their relationship, and
appellant would leave for a brief time before reconciling with Brown. In February of 2017,
however, Brown learned that appellant was having a baby with another woman. Despite that
discovery, Brown and appellant continued to live together from February 2017 through October
2017. When the other woman gave birth on October 4, 2017, English moved out of Brown’s
home. After he moved, he continued to visit O.B. two or three times a week and have sex with
her while Brown was not home.
O.B. Discloses the Abuse
On May 16, 2018, O.B. disclosed appellant’s sexual abuse to her younger sister at school.
The police were notified, and a few days later, O.B. provided a statement at the Child Advocacy
Center. On May 23, 2018, a nurse, Melissa Harper, examined O.B. The night before the
examination, Harper spoke with Brown by phone. Brown told Harper that O.B. had disclosed
having oral sex and sexual intercourse with appellant. O.B. told her mother that appellant
“began touching her when she was in third grade and having sex with her in the fifth grade.”
Harper testified that when she first met with O.B., O.B. was very upset, with tear drops
rolling down her face, and admitted to previous suicidal ideations. O.B. told Harper that English
had “‘sex’ with her ‘daily since sixth or seventh grade.’” During the examination, O.B. asked
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her mother whether she remembered the sheets were always in the washer and dryer, and
explained the abuse had happened “every time.”3
Physical Evidence of Abuse
Harper testified that the physical examination revealed O.B. had suffered a significant
tear in her vaginal tissue called a hymenal transection. Harper opined that the tear was consistent
with blunt force trauma and would never heal completely. She also discovered that O.B. had
genital warts.
At trial, Dr. William Pearlman testified as an expert in family medicine. He explained
that appellant was treated for genital warts at the health department in 2013 and 2014. Appellant
first visited the health department on April 9, 2013, reporting that he had contracted “HPV,” or
human papillomavirus. Dr. Pearlman testified that genital warts are a symptom of HPV.
Although appellant returned to the health department on June 4, 2013, for further treatment, the
condition did not clear. In March of 2014, he visited Dr. Pearlman twice for genital wart
treatment. Dr. Pearlman opined that “common warts” would not likely be transmitted from a
patient’s hands to his genitals. He stressed that, after the age of five, genital warts were
“typically” transmitted through sexual contact. Although Dr. Pearlman agreed that not all strains
of HPV were transmitted through sexual activity, he emphasized that “direct sexual contact” was
necessary “to acquire” “the stereotype [strain] that causes genital warts.” Nevertheless, he
3
At trial, O.B. agreed she spoke with police officers at the Child Advocacy Center. She
agreed she told both the officers and Harper that appellant began having sex with her in sixth or
seventh grade. When questioned further about that report versus her testimony that it began
when she was ten years old, O.B. emphasized that no one asked about the timing in relation to
her starting her menstrual period and that she provided only a brief explanation of the abuse at
the hospital. She explained she had to figure out when the abuse happened by connecting her
age to life events and memories of the abuse. She also emphasized that she was young, only
fourteen, when she came forward about what happened, and it was hard for her.
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conceded that the specific genital warts on one person could not be linked to those on another
person through testing.
Appellant is Convicted of all Charges
English testified on his own behalf and stated that he had been sexually abused as a child.
However, he denied that he had committed the charged offenses. Appellant wholly denied that
he had “inappropriately put [his] hands [on O.B.]” or had sexual intercourse with her. Further,
appellant denied being sexually aroused by young girls, though he acknowledged he had a felony
juvenile adjudication for sodomy arising out of an incident where he received oral sex from an
eight-year-old girl when he was fifteen.
At the conclusion of the evidence, the jury convicted appellant of all charges. This
appeal followed.
ANALYSIS
A. Sufficiency of the Evidence
Appellant’s first eight assignments of error challenge the sufficiency of the evidence in
support of his convictions. In each assignment, appellant contends that “[t]he trial court erred by
convicting” him of the offenses. Appellant was convicted by a jury, and the record does not
indicate any motion to set aside the jury verdict was filed with the circuit court challenging the
jury’s conviction. See Wagoner v. Commonwealth, 63 Va. App. 229, 243 (2014) (discussing the
standard in reviewing a motion to set aside a jury verdict and explaining “[t]he trial judge’s
power to set aside a verdict ‘can only be exercised where the verdict is plainly wrong or without
credible evidence to support it’” (quoting Doherty v. Aleck, 273 Va. 421, 424 (2007))). The
court pronounced the defendant guilty “in accordance with the verdicts of the jury.” The trial
court denied appellant’s motion to strike, and we interpret these assignments as a challenge to the
circuit court’s denial of his motion to strike at the conclusion of trial. See Avent v.
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Commonwealth, 279 Va. 175, 198-99 (2010) (motion to strike should be granted if it is
conclusively apparent no cause of action has been proven against defendant).
1. Evidence to Support Finding the Victim Under Thirteen Years Old
(Assignments of Error 1 through 5)
Appellant contends that the evidence was insufficient to support any of his five convictions
because it failed to prove that O.B. was under the age of thirteen when the offenses occurred.4
Appellant acknowledges that O.B. would have been under thirteen between November 1, 2013, and
October 7, 2016, the date range in the indictments. However, appellant rests this argument on her
initial reports made to officers that indicated she was in sixth or seventh grade when the abuse
began. O.B. turned thirteen in seventh grade, and English asserts that O.B. did not provide specific
dates, or even “time of year,” for the sexual abuse she testified about at trial, other than it occurred
before her menstrual cycle at age ten.
As English acknowledges, there is evidence that O.B. was sexually abused before she began
menstruation at age ten. However, contrary to English’s assertion, there is also evidence that the
abuse continued throughout the period of time alleged in the indictments. During trial, O.B.
recalled specific details about the location and circumstances surrounding appellant’s sexual abuse.
She recalled the abuse beginning at age eight; she remembered him removing her clothes and
“licking” her vagina when she was still losing “baby” teeth at Peters Creek Apartments. Evidence
at trial from O.B., Brown, and Harper, established that the abuse began before O.B.’s menstruation
at age ten. Based on O.B.’s testimony and Brown’s testimony, the family moved to the Franwill
house on November 1, 2013, shortly after O.B. turned ten in October 2013. The indictments date
range begins from the date of this move, shortly after O.B. turned ten. O.B. testified that appellant’s
4
Appellant argues that the evidence was insufficient to convict him on all five of his
charges because the Commonwealth did not prove O.B. was under thirteen; however, the
indecent liberties charge only required proof that the victim was younger than fifteen.
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sexual abuse escalated during this time and that he began to attempt to engage in sexual intercourse
with her. When he was unsuccessful, he had O.B. perform oral sex on him. O.B. also had a
specific memory that appellant first engaged in sexual intercourse with her while she was out of
school for sickness and that the intercourse occurred before she had her first period in May of 2014.
O.B. agreed during her trial testimony that the abuse “continued to progress” as she matured. She
testified that it happened “every day.” O.B. agreed that the “sexual intercourse, the oral sex, [and]
all of those things happen[ed] up until he left [the home].” English continued to visit her for
intercourse, when Brown was not home, after he moved out in October of 2017—just a few days
before O.B.’s fourteenth birthday.
There was sufficient evidence to find that O.B. was under the age of thirteen at the time of
the offenses. Although O.B.’s testimony did not require corroboration to be credible, jurors could
have reasonably inferred that the significant tearing in her vaginal tissue, characterized as consistent
with trauma, corroborated O.B.’s recollection that she had not achieved puberty when appellant
began having sex with her. See Wilson v. Commonwealth, 46 Va. App. 73, 87 (2005) (“[A]
conviction for rape and other sexual offenses may be sustained solely upon the uncorroborated
testimony of the victim.”).
English’s challenge to the sufficiency of the evidence on the age element of his convictions
incorporates a challenge to O.B.’s credibility. On brief, English explains “[t]he differences between
[O.B.’s] prior statements indicating that she was in the ‘sixth or seventh’ grade and only when she
takes the stand at trial stating that she was 10 years old, which would put her in the fifth grade, is
significant.” Assuming without deciding that the issue of credibility is preserved for this appeal,
English’s argument fails.5
5
After the conclusion of evidence, English moved to strike all five charges against him; the
circuit court asked whether a reasonable articulation of English’s argument was “the testimony is
not credible and as such the court should grant the motions as a matter of law,” and appellant
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As an initial matter, O.B. was twelve years old in sixth grade. Thus, O.B.’s initial report of
the abuse—which English contests—is consistent with the indictments. Moreover, the evidence
against English was substantial, and it does not plainly appear that the trial court would have been
compelled to set aside any verdict against English as being without evidence to support it.
“A motion to strike challenges whether the evidence is sufficient to submit the case to the
jury.” Lawlor v. Commonwealth, 285 Va. 187, 223 (2013). “A circuit court must rule on a motion
to strike based on the presumption that the jury will believe all the evidence favorable to the
[Commonwealth], as well as all reasonable inferences that a jury might draw therefrom in favor of
the [Commonwealth].” Dill v. Kroger Ltd. Partnership I, 300 Va. 99, 109 (2021). “When
evaluating a motion to strike, the circuit court must not judge the weight or credibility of evidence,
because to do so ‘would invade the province of the jury.’” Id. (quoting Tahboub v. Thiagarajah,
298 Va. 366, 371 (2020)). “We review the trial court’s ruling denying the motion to strike in
accordance with well-settled principles:
When the sufficiency of [the Commonwealth’s] evidence is
challenged by a motion to strike, the trial court should resolve any
reasonable doubt as to the sufficiency of the evidence in the
[Commonwealth’s] favor and should grant the motion only when it is
conclusively apparent that [the Commonwealth] has proven no cause
of action against defendant, or when it plainly appears that the trial
court would be compelled to set aside any verdict found for the
[Commonwealth] as being without evidence to support it.
Avent, 279 Va. at 198-99 (alterations in original) (citing Banks v. Mario Indus., 274 Va. 438, 454-55
(2007)). We find no error in the trial court’s denial of the motion to strike.
answered, “[n]o, Your Honor, because I think the credibility of the witness is for the jurors so it
would be improper argument but I do think that this may be in the records, Your Honor, as it relates
to it.” Thus, appellant conceded that O.B.’s testimony was not incredible as a matter of law. On
appeal, English has not challenged the jury’s credibility findings.
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2. Proof of Marriage (Assignments of Error 7 and 8)
Appellant next contends that the evidence was insufficient to support his indecent liberties
conviction and his object sexual penetration conviction because it failed to establish that he and
O.B. were not married.6
In addressing the motion, the circuit court was required to presume the jury would believe
all reasonable inferences in favor of the Commonwealth. Dill, 300 Va. at 109. Here, the record
established that O.B. was much younger than fourteen years old at the time of the offenses and was
living with her mother; it was reasonable for the jury to infer that O.B. would not have been able to
marry English without parental consent.7 The evidence showed that appellant was in a relationship
with O.B.’s mother and that he acted as a “caretaker” for O.B. and her siblings. O.B. testified that
appellant was a “father figure” to her. O.B.’s mother testified that she was in a relationship with
appellant for over nine years and that he moved in with her when O.B. was five years old. Brown
also described appellant’s relationship with O.B. as that of a “care giver” or “[p]retty much like a
stepfather.” Appellant himself testified that O.B. referred to him as “Poppy,” that O.B. wanted him
to adopt her, and that he told her adoption would only be possible if he and Brown were to marry.
6
Although the lack of a marital relationship is not an element of indecent liberties or
object sexual penetration charges, the indictments for both offenses included the absence of such
a relationship as an element. Where the indictment includes narrowing language, it must prove
the offense as charged in the indictment. Purvy v. Commonwealth, 59 Va. App. 260, 267-69
(2011).
Additionally, the instructions submitted to the jury included it as an element of the
indecent liberties and sexual penetration offenses. Instructions become the law of the case when
they are not objected to. See Hamilton v. Commonwealth, 69 Va. App. 176, 195 (2018) (citing
Owens-Illinois, Inc. v. Thomas Baker Real Estate, Ltd., 237 Va. 649, 652 (1989) (“It is well
settled that instructions given without objection become the law of the case and thereby bind the
parties in the trial court and this Court on review.”)). Here, English challenged the instructions
as a whole on the ground that all the matters should have been decided as a matter of law but
made no other specific objection relevant to this appeal.
7
Such an inference would be consistent with the law; a minor under the age of eighteen
cannot legally marry unless she has been emancipated. Code § 20-48.
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He also stated that, when Brown disciplined O.B., he “tried to give them mother and daughter
space . . . [b]y me just being the stepfather or the boyfriend or whatever.” O.B. was only fourteen
years old at the time she reported the abuse, and English had moved out because he was having a
child with another woman. The other woman, Kori, testified on behalf of English; she explained
she had been in an “on and off” relationship with English for fifteen years, and at the time of the
trial he was her boyfriend. Based on the evidence a juror could reasonably infer that appellant was
not married to O.B. at the time of the offenses. We conclude there is no error in the circuit court’s
denial of the motion to strike.
3. Lascivious Intent (Assignment of Error 6)
Appellant contends that the evidence was insufficient to support his indecent liberties
conviction because it failed to prove lascivious intent. In support of this argument, he cites his
testimony denying that he touched O.B. “inappropriately” and claiming his preference for adult
sexual partners. Appellant suggests that O.B.’s testimony that he rubbed his penis against her
vagina is not credible because it was not sufficiently specific and was uncorroborated. Appellant
asks us to reweigh the credibility of the testimony and evidence. In reviewing the circuit court’s
decision to deny the motion to strike, we do not reweigh the credibility of the testimony and
evidence. Dill, 300 Va. at 109. In fact, the circuit court must presume the jury will believe the
evidence favorable to the Commonwealth. Id.
“Intent, like any element of a crime, may, and usually must, be proved by circumstantial
evidence such as a person’s conduct and statements. The statements and conduct of an accused
after the events that constitute the charged crime may also be relevant circumstantial evidence of
intent.” Simon v. Commonwealth, 58 Va. App. 194, 206 (2011). “While no single piece of
evidence may be sufficient, the ‘combined force of many concurrent and related circumstances,
each insufficient in itself, may lead a reasonable mind irresistibly to a conclusion [of guilt].’”
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Rams v. Commonwealth, 70 Va. App. 12, 37 (2019) (quoting Stamper v. Commonwealth, 220
Va. 260, 273 (1979)). Corroboration is not required to prove intent. Wilson, 46 Va. App. at 87.
Code § 18.2-370(A)(1) provides, in pertinent part, that any adult who “with lascivious
intent, knowingly and intentionally” exposes his “sexual or genital parts” to a child, or “propose[s]
that [the] child expose . . . her sexual or genital parts” is guilty of taking indecent liberties. Further,
subsection (A)(3) of Code § 18.2-370 states in relevant part that a defendant is guilty of taking
indecent liberties if, with the same intent, he “[p]ropose[s] that any such child feel or fondle his own
sexual or genital parts . . . or propose[s] that [he] feel or fondle the sexual or genital parts of any
such child.” The term “lascivious” describes “a state of mind that is eager for sexual indulgence,
desirous of inciting to lust or of inciting sexual desire and appetite.” Dietz v. Commonwealth, 294
Va. 123, 136 (2017) (quoting Viney v. Commonwealth, 269 Va. 296, 299 (2005)). Evidence that a
defendant was sexually aroused, or asked the child to do something wrong, supports a finding that
he possessed lascivious intent. Viney, 269 Va. at 300. Here, O.B. testified that appellant rubbed his
bare, erect penis directly against her vagina and then attempted to penetrate her vagina. She also
testified that he forced her to perform oral sex on him, performed oral sex on her, rubbed her in
several areas of her body, and ultimately raped her. That evidence at trial demonstrated that
appellant was sexually aroused and supported a finding that he acted with lascivious intent. The
circuit court did not err in denying a motion to strike on this issue.
B. Evidentiary Rulings (Assignments of Error 9-11, 13-15)
Appellant contends that the court erred by admitting evidence of his prior sodomy
conviction, evidence that he suffered from genital warts, and evidence regarding his alleged prior
bad acts outside the indictment dates. He also asserts that the court erred by “overruling his
objection to provide an alibi,” excluding evidence of a Child Protective Services safety plan, and
ruling that he could not testify about “concerns” relating to O.B. viewing pornography.
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“Decisions regarding the admissibility of evidence ‘lie within the trial court’s sound
discretion and will not be disturbed on appeal absent an abuse of discretion.’” Blankenship v.
Commonwealth, 69 Va. App. 692, 697 (2019) (quoting Michels v. Commonwealth, 47 Va. App.
461, 465 (2006)). “This standard, if nothing else, means that the trial judge’s ‘ruling will not be
reversed simply because an appellate court disagrees.’” Turner v. Commonwealth, 65 Va. App.
312, 327 (2015) (citing Thomas v. Commonwealth, 44 Va. App. 741, 753, adopted upon reh’g en
banc, 45 Va. App. 811 (2005)). “Only when reasonable jurists could not differ can we say an
abuse of discretion has occurred.” Id. (quoting Grattan v. Commonwealth, 278 Va. 602, 620
(2009)). “A trial court . . . ‘by definition abuses its discretion when it makes an error of law.’”
Robinson v. Commonwealth, 68 Va. App. 602, 606 (2018) (quoting Dean v. Commonwealth, 61
Va. App. 209, 213 (2012)). Thus, “evidentiary issues presenting a ‘question of law’ are
‘reviewed de novo by this Court.’” Abney v. Commonwealth, 51 Va. App. 337, 345 (2008)
(quoting Michels, 47 Va. App. at 465).
1. Prior Sodomy Conviction (Assignment of Error 9)
Before trial, appellant filed a motion in limine seeking to exclude evidence of his
adjudication of delinquency for the forcible sodomy of an eight year old when he was fifteen
years old. After the court denied appellant’s motion, the Commonwealth introduced the
conviction at the outset of trial. Appellant argues on appeal that the trial court erred by admitting
evidence of his prior sodomy conviction. A defendant must be given the maximum term authorized
for some sexual crimes, including indecent liberties and aggravated sexual battery, if he has a
similar qualifying prior offense. Code § 18.2-67.5:2. Appellant does not dispute that he has a prior
qualifying offense, rather, he argues that evidence of the prior offense should not have been
presented to the jury.
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In a proceeding against a defendant under a recidivist statute, evidence of the prior
offense is admissible, even when it goes only toward a sentencing enhancement. Washington v.
Commonwealth, 272 Va. 449, 459 (2006) (“This Court has repeatedly held that prior convictions
of a criminal defendant facing trial as a recidivist may be introduced and proved at the guilt
phase of the trial on the principal offense.”); see also Elem v. Commonwealth, 55 Va. App. 55,
58 (2009) (“When the legislature enacted and amended [the code section describing a separate
sentencing proceeding following a felony conviction], it was well aware of the appellate
decisions concerning the manner of proof of the prior convictions for recidivist offenses, but it
chose not to create a separate bifurcated procedure of the guilt phase for these offenses.”).
Any “potential prejudice . . . aris[ing] from the introduction of [a defendant’s] prior
convictions [during the guilt phase] . . . can be . . . solved by an appropriate limiting instruction
to the jury.” Elem, 55 Va. App. at 58. The jury here received three limiting instructions
regarding the purpose for which appellant’s prior conviction could be considered; the jury was
instructed not to consider it as evidence of guilt. One of the instructions specifically cautioned
the jury that appellant’s prior conviction for “a similar offense is not proof that he sexually
abused [O.B.]” and could “not be considered . . . in determining whether [he] sexually abused
[O.B.].” See Couture v. Commonwealth, 51 Va. App. 239, 247 (2008) (“[W]e presume juries
follow the instructions of the trial court.” (citing Muhammad v. Commonwealth, 269 Va. 451,
524 (2005)).
The trial court did not err by denying appellant’s motion in limine and admitting his prior
sodomy adjudication.
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2. Genital Warts (Assignment of Error 10)
Appellant asserts that the court erred by admitting evidence that he was treated for genital
warts. Although he acknowledges that O.B.’s forensic examination on May 23, 2018, revealed that
she, too, had a genital wart condition, appellant maintains that evidence regarding his ailment was
irrelevant due to the number of years between their respective diagnoses and the lack of evidence
conclusively establishing that O.B. contracted the condition from him. He further argues evidence
of his genital warts was unduly prejudicial, confusing, and misleading because it prompted the jury
to speculate that he and O.B. had engaged in sexual activity.
“Evidence is admissible if it is both relevant and material.” Castillo v. Commonwealth, 70
Va. App. 394, 462 (2019) (quoting Patterson v. Commonwealth, 62 Va. App. 488, 493 (2013)). It
“is relevant if it has any logical tendency, however slight, to establish a fact at issue in the case [and]
. . . material if it relates to a matter properly at issue in the case.” Id. (quoting Cousins v.
Commonwealth, 56 Va. App. 257, 271 (2010)); see also Va. R. Evid. 2:401 (defining relevant
evidence as “evidence having any tendency to make the existence of any fact in issue more probable
or less probable than it would be without the evidence”). “While generally ‘[a]ll relevant evidence
is admissible,’ Va. R. Evid. 2:402, ‘[r]elevant evidence may be excluded if . . . the probative value
of the evidence is substantially outweighed by . . . the danger of unfair prejudice.’” Va. R. Evid.
2:403(a)(i).” Commonwealth v. Proffitt, 292 Va. 626, 635 (2016). “It is well-settled that ‘[t]he
responsibility for balancing the competing considerations of probative value and prejudice rests in
the sound discretion of the trial court.’” Id. (citing Ortiz v. Commonwealth, 276 Va. 705, 715
(2008)).
“All probative direct evidence generally has a prejudicial effect to the opposing party . . .
[t]hus the relevant question is ‘whether the probative value of the evidence is substantially
outweighed by its unfair or unduly prejudicial effects.’” Id. (citing Lee v. Spoden, 290 Va. 235,
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251-52 (2015)). See State v. Anwar S., 61 A.3d 1129, 1142 (Conn. App. Ct. 2013) (stating that the
evidence pertaining to chlamydia was not unduly prejudicial in part because it was “probative of the
fact that” the victim “had the type of sexual contact with an individual necessary to transmit the
infection”).
At the pre-trial hearing on appellant’s motion, the circuit court specifically inquired about
the “nexus” between English’s genital warts and O.B.’s diagnosis of the same. The Commonwealth
proffered that appellant was diagnosed and treated for genital warts in 2013 and in 2014 and that the
evidence at trial would prove he was sexually abusing O.B. before, during, and after that time
frame. The Commonwealth also proffered that, when O.B. first disclosed the abuse in May 2018,
her forensic examination revealed the presence of genital warts. The Commonwealth
acknowledged that there was a lengthy gap between English’s last known treatment for warts and
O.B.’s initial diagnosis and that no expert could say it was definitively English that gave O.B.
genital warts. However, it argued that evidence of English’s warts was relevant because O.B. was a
child and the time frame of English’s documented outbreak coincided with when the intercourse
abuse began. The circuit court ultimately denied the motion to exclude such evidence on the basis
that the objection went more towards weight than admissibility.
At trial, Dr. Pearlman testified that genital warts are “typically” transmitted through sexual
contact. He acknowledged that genital warts can be transmitted to children from parents assisting
with wiping, bathing, diaper changes, or that “kind of stuff,” but after the age of five it’s typically
transmitted sexually. Dr. Pearlman testified that there are 170 strains of HPV, but “direct sexual
contact” was necessary to spread the strain of HPV commonly associated with genital warts. His
testimony, in conjunction with O.B.’s, established that English began having sexual intercourse with
O.B. in the same time frame in which he had outbreaks of genital warts. O.B. was not diagnosed
with genital warts until 2018, after she reported the abuse and was examined.
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The circuit court weighed the evidentiary issue and necessarily concluded that evidence of
English’s warts was relevant and its probative value was not substantially outweighed by the danger
of unfair prejudice. We afford a high degree of deference to a circuit court’s evidentiary rulings and
find that reasonable jurists could agree with the circuit court’s ruling given the specific factual
issues in this case. See Anwar S., 61 A.3d at 1141 (affirming the trial court’s refusal to strike
evidence of chlamydia in the child victim of sexual abuse even where there was no direct evidence
linking the defendant’s chlamydia to the victim’s); Daniel v. State, 536 So. 2d 1319, 1326 (Miss.
1988) (appellant’s venereal disease is relevant and corroborative); see also Turner, 65 Va. App. at
327 (stating a trial judge’s “ruling will not be reversed simply because an appellate court disagrees”
(quoting Thomas, 44 Va. App. at 753)). The circuit court did not abuse its discretion by admitting
evidence of appellant’s treatments prior to O.B.’s diagnosis and allowing the jury to determine the
weight of that evidence.
3. Prior Bad Acts (Assignment of Error 11)
Appellant contends that the court erred by admitting evidence of alleged bad acts by him
toward O.B. prior to the time frame alleged in the indictments, i.e., prior to November 1, 2013.
Specifically, he asserts that the court erred by admitting evidence of his sexual acts with O.B. such
as “alleged play fighting, humping, and oral sex.” He contends that, because these acts were not the
basis of criminal charges, their prejudicial impact exceeded their probative value. We disagree.
“As a general rule, evidence which shows or tends to show that the accused is guilty of
other crimes and offenses at other times, even though they are of the same nature as the one
charged in the indictment, is not admissible to show the accused’s commission of the particular
crime charged.” Kenner v. Commonwealth, 299 Va. 414, 424 (2021) (quoting Ortiz, 276 Va. at
714). “The policy underlying the exclusion of such evidence protects the accused against unfair
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prejudice resulting from the consideration of [other] criminal conduct in determining guilt.”
Sutphin v. Commonwealth, 1 Va. App. 241, 245 (1985).
Nevertheless, “numerous exceptions to this rule authorize the admission of ‘bad acts’
evidence.” Kenner, 299 Va. at 424 (quoting Ortiz, 276 Va. at 714). Evidence of other crimes
may be admitted for several legitimate purposes, including to “negate[] the possibility of
accident or mistake” or to “show[] motive, method, intent, plan or scheme, or any other relevant
element of the offense on trial.” Id.; see also Va. R. Evid. 2:404(b).8
Proof of other crimes “is admissible ‘if it tends to prove any relevant element of the
offense charged’ or if ‘the evidence is connected with or leads up to the offense for which the
accused is on trial.’” Woodfin v. Commonwealth, 236 Va. 89, 95 (1988) (quoting Kirkpatrick v.
Commonwealth, 211 Va. 269, 272 (1970)). “Every fact, however remote or insignificant, that
tends to establish a probability or improbability (e.g., appellant’s defense of lack of knowledge)
of a fact in issue is admissible.” Ferrell v. Commonwealth, 11 Va. App. 380, 388 (1990).
Further, “[e]vidence that falls into the enumerated exceptions must meet an additional
requirement: its legitimate probative value must exceed its incidental prejudice to the
defendant.” Kenner, 299 Va. at 424 (quoting Ortiz, 276 Va. at 715); see also Va. R. Evid.
2:404(b) (requiring that “the legitimate probative value of such proof outweigh[] its incidental
prejudice”). Whether the probative value is greater than the prejudicial effect of the evidence
“rests in the sound discretion of the trial court.” Kenner, 299 Va. at 424.
“Moreover, the list of acceptable uses found in Rule of Evidence 2:404(b) is not
exclusive.” Lambert v. Commonwealth, 70 Va. App. 740, 750 (2019). For example, “Proof of
8
Virginia Rule of Evidence 2:404(b) states in pertinent part that evidence of other crimes
or bad acts “is admissible if it tends to prove any relevant fact pertaining to the offense charged,
such as where it is relevant to show motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, accident, or if they are part of a common scheme or plan.”
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other criminal acts is . . . admissible to show that the defendant’s conduct was intentional.”
Brown v. Commonwealth, 226 Va. 56, 61 (1983).
To prove that appellant was guilty of taking indecent liberties with O.B., the
Commonwealth was required to establish that he acted with “lascivious intent.” Code
§ 18.2-370(A). His other sexual misconduct was “relevant to establishing . . . [that he acted with]
‘lascivious intent’ and that [his] acts were accomplished ‘knowingly and intentionally.’”
Kenner, 299 Va. at 426. Here, at the pre-trial hearing on the Commonwealth’s motion to admit
evidence of appellant’s prior sexual conduct with O.B. at the Peters Creek apartment, the court
ruled that it was “relevant under 2:404 (B) [to establish] the absence of a mistake or an accident.”
The duration and escalation of appellant’s sexual contact with O.B. before the move to the
Franwill house on November 1, 2013, provided the jury with some evidence of appellant’s state
of mind and intent when he committed the offenses after the move. See Scott v. Commonwealth,
228 Va. 519, 524 (1984) (fact finder may consider the “surrounding facts and circumstances”
before, during, and after the offense in ascertaining intent). Accordingly, the court did not abuse
its discretion by admitting the evidence.
4. Child Protective Services Safety Plan (Assignment of Error 14)
Appellant asserts that the court erred by excluding proposed Defense Exhibit 1,9 a Child
Protective Services safety plan for O.B. prepared by the Department of Social Services for the City
of Roanoke on July 10, 2018. He contends that the safety plan “mirrored the testimony of [O.B.]’s
mother and was relevant to show the level of [her] control [over O.B.] . . . that influenced [O.B.].”
9
The safety plan was not admitted and is in the record under seal. Nevertheless, the
appeal necessitates unsealing relevant portions of the record to resolve the issues appellant has
raised. Evidence and factual findings below that are necessary to address the assignment of error
are included in this opinion. Consequently, “[t]o the extent that this opinion mentions facts
found in the sealed record, we unseal only those specific facts, finding them relevant to the
decision in this case. The remainder of the previously sealed record remains sealed.” Levick v.
MacDougall, 294 Va. 283, 288 n.1 (2017).
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In short, English wanted to suggest that O.B.’s testimony was influenced by her mother—who was
angry with English for leaving her.
Appellant maintains that the references to Brown’s corporal punishment of O.B. were
relevant to O.B.’s “motive . . . to be untruthful.” When the safety plan was prepared in 2018, O.B.
was a teenager. Nothing in it suggested that the caution about corporal punishment related to O.B.
Nor did the plan suggest that O.B.’s disclosure of appellant’s sexual abuse coincided with O.B.
having been punished by Brown in any form. Based on the record, we conclude that any alleged
error involved in the exclusion of the proposed exhibit was harmless.
“An appellate court reviews a decision to admit or exclude evidence where no federal
constitutional issue was raised under the standard for non-constitutional harmless error provided in
Code § 8.01-678.” Haas v. Commonwealth, 299 Va. 465, 467 (2021). Code § 8.01-678 provides
in pertinent part:
When it plainly appears from the record and the evidence given at
the trial that the parties have had a fair trial on the merits and
substantial justice has been reached, no judgment shall be arrested
or reversed . . . [f]or any . . . defect, imperfection, or omission in
the record, or for any other error committed on the trial.
Virginia courts “have applied Code § 8.01-678 in criminal as well as civil cases.” Clay v.
Commonwealth, 262 Va. 253, 259 (2001). Under this standard, we “consider the potential effect of
the excluded evidence in light of all the evidence that was presented to the jury.” Haas, 299 Va. at
467 (quoting Proffitt, 292 Va. at 642); see also Montgomery v. Commonwealth, 56 Va. App. 695,
704 (2010) (assessing the potential error “in the context of the entire case”). If the alleged error did
not “substantially influence[] the jury,” an error is harmless if “there has been a fair trial on the
merits and . . . substantial justice has been reached[.]” Haas, 299 Va. at 467. In assessing whether a
potential error is harmless, we consider factors such as “(1) the importance of the tainted evidence
in the prosecutor’s case, (2) whether that evidence was cumulative, (3) whether there is evidence
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that corroborates or contradicts the tainted evidence on material points, and (4) the strength of the
prosecution’s case as a whole.” Angel v. Commonwealth, 281 Va. 248, 264 (2011).
Assuming without deciding that the safety plan was otherwise relevant, admission of the
safety plan was cumulative. Appellant cross-examined Brown about its contents, and as he
acknowledges on appeal, its contents “mirrored” Brown’s testimony. English specifically asked
Brown whether a safety plan was prepared in July 2018 that outlined “appropriate discipline” of her
children by her and advised her not to discipline her children in such a manner that they would be
left with “marks and bruises.” Brown agreed that the plan directed her to use an open hand on her
children’s buttocks. The jury also watched Defense Exhibit 4, a short video depicting Brown
yelling; English suggested in closing argument that the video demonstrated that Brown was verbally
and physically abusive to her children.
Thus, we conclude that even if the safety plan were relevant and admissible, any error in the
court’s decision to exclude the exhibit was harmless because the exhibit was cumulative and
because it contained no information that would have substantially influenced the jury’s verdict.
Accordingly, the court did not commit reversible error by excluding the exhibit.
5. Victim and Pornography (Assignment of Error 15)
Appellant contends that the court erred by sustaining the Commonwealth’s objection to a
question by his attorney “regarding concerns about [O.B.’]s viewing of pornography.” Specifically,
during trial defense counsel asked English whether he approached Brown “concerned about porn?”
The Commonwealth objected based on Code § 18.2-67.7, the “Rape Shield” statute, which prohibits
discussion of prior sexual conduct without notice. Fahringer v. Commonwealth, 70 Va. App. 208,
215 (2019) (This code section is referred to as Virginia’s “Rape Shield Law.” (citing Neeley v.
Commonwealth, 17 Va. App. 349, 353-54 (1993))). English responded that the viewing of
pornography is not sexual conduct under the statute, and the purpose of questioning O.B. about it
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was to negate the Commonwealth’s expert’s testimony that a fourteen year old old should not have
known what “dry humping” was. The question raised by this assignment is whether viewing
pornography is sexual conduct protected by the “Rape Shield” statute.
Code § 18.2-67.7(A) provides, in pertinent part, that “[i]n prosecutions under this article, . . .
general reputation or opinion evidence of the complaining witness’s unchaste character or prior
sexual conduct shall not be admitted.” “The purpose of Virginia’s Rape Shield Law is to “exclude
evidence in sexual assault cases of the ‘general reputation . . . of the complaining witness’s unchaste
character or prior sexual conduct.’” Fahringer, 70 Va. App. at 215 (citing League v.
Commonwealth, 9 Va. App. 199, 206 (1989)). This Court has found that not all sexual activity is
protected as sexual conduct under the rape shield statute. See Brown v. Commonwealth, 29
Va. App. 199, 216 (1999) (finding the defendant’s questioning went to the victim’s prior testimony
from a substantially similar rape prosecution, not her “conduct,” and so it should have been
admitted). Appellant argues that the purpose of asking about O.B.’s porn use was not to
demonstrate her sexual proclivity, but rather to explain her sexual knowledge and familiarity with
terms like “dry humping.”
Notably, English did not examine O.B. about what pornographic material she may have
viewed; instead, the objection arose on the last day of trial—after O.B. had testified—when English
was attempting to testify about going to Brown “concerned about porn.” English proffered that his
evidence would have shown O.B. was “looking up pornography.” See Basham v. Commonwealth,
455 S.W.3d 415, 418-19 (Ky. 2014) (finding that, although the child victim’s exposure to porn was
likely not protected from admission by statute, evidence of exposure was not admissible because the
defendant’s proffer did “not demonstrate that [the child] was previously exposed to the sort of
sexual acts that she described in her allegations”).
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Presumably, English wanted to use this evidence to suggest that O.B.’s knowledge of sexual
terms came from pornography rather than from abuse. English, however, did not proffer any details
about the specific content of the pornography O.B. may have viewed and did not establish whether
it depicted “dry humping.” He did not proffer any information explaining whether O.B. would
have learned the terminology for the acts she was watching simply by viewing them. As the
proponent of the evidence, English had the burden to lay a foundation for its admissibility and
establish its relevance. Creamer v. Commonwealth, 64 Va. App. 185, 194-95 (2015) (establishing
the proponent of the evidence must make the substance of the evidence known to the court by
proffer to provide the trial court an opportunity to resolve the issue, and to create a record for review
on appeal). The trial court did not abuse its discretion in excluding the evidence under these
circumstances.10
C. Bill of Particulars (Assignment of Error 12) and Alibi (Assignment of Error 13)
The indictment alleged English committed these acts of sexual abuse “Between
November 1, 2013 and October 7, 2016.” English asked for a bill of particulars to state the
“dates, locations, and times of all offenses for which [he was] being charged.” The circuit court
granted the motion and ordered the Commonwealth “to provide more information regarding the
time, location, and dates of the alleged offense.” A bill of particulars was subsequently
10
Assuming without deciding that viewing pornography is not sexual conduct protected by
the rape shield statute, even if English’s testimony about O.B. using porn were otherwise
admissible, it would have been, at most, harmless error for the circuit court to exclude evidence of
O.B.’s exposure to pornography. In assessing whether a potential error is harmless, we consider
factors such as (1) the importance of the tainted evidence, (2) whether that evidence was
cumulative, (3) whether there is evidence that corroborates or contradicts the tainted evidence on
material points, and (4) the strength of the prosecution’s evidence as a whole. Angel, 281 Va. at
264. O.B.’s familiarity with pornographic material was cumulative and corroborated; the fact that
she was exposed to pornography had already been established and was tangential to the case. The
prosecution’s case against English was strong.
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submitted, which the defendant objected to for lack of specificity, as it lacked the “the location,
time, and the date” of the offenses alleged in the indictments.
At the hearing on appellant’s objection, the Commonwealth stated that it had used best
efforts to provide appellant with more specific information and had narrowed the location of the
offenses. The Commonwealth emphasized that the offenses were not isolated and that, because
the offenses were committed against a child, it was unable to provide any more specific
information. Appellant also objected to the requirement in the pre-trial order requiring him to
disclose an alibi defense to the Commonwealth under Rule 3A:11(d)(2). Appellant asserted that
the time frame of the offenses provided in the Commonwealth’s bill of particulars was so broad
that it “d[id] not trigger reciprocal discovery by the defendant” and to require him to “provide
notice of everywhere that he could possibly be during that five-year span” would violate his due
process rights.
The court directed appellant to use “best efforts” to identify time periods when “he was
out of town . . . on a permanent basis, [and] . . . rough estimates as to when those time periods
were and where he was.” The court emphasized that it would “not get hung up on specificity as
the court did not get hung up on specificity with respect to the bill of particulars.” Therefore, the
court “granted” the objection in part and denied it in part. Following this ruling, appellant did
not present any alibi defense.
On appeal, English now asserts that “[t]he trial [c]ourt erred by granting in part and
denying in part [his] motion for a [b]ill of [p]articulars.” He contends that the court erred by
failing to require the Commonwealth to “narrow” the scope of the charges to more specific dates.
Appellant maintains that the nearly three-year time frame of the charges, from November 1,
2013, to October 7, 2016, and the lack of evidence presented before and during trial regarding
specific dates were “insufficient to apprise [him] of the nature and cause of the accusations.” In
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the same vein, he also assigns error to the circuit court in “overruling his objection to provide an
alibi.”
“Whether to require the Commonwealth to file a bill of particulars is a matter that falls
within the sound discretion of the trial court.” Walker v. Commonwealth, 258 Va. 54, 63 (1999).
On appeal of the denial of a request for a bill of particulars, we review the court’s ruling for
abuse of discretion. Rams, 70 Va. App. at 41. “[W]here the indictment ‘give[s] the accused
notice of the nature and character of the offense charged so he can make his defense[,] a bill of
particulars is not required.’” Id. at 42 (quoting Strickler v. Commonwealth, 241 Va. 482, 490
(1991)). This Court and the Supreme Court have held that “it is ‘improper’ for a defendant to
use a bill of particulars ‘to expand the scope of discovery in a criminal case.’” Id. (quoting
Quesinberry v. Commonwealth, 241 Va. 364, 372 (1991)).
Code § 19.2-220 “requires that an indictment name the accused, describe the offense
charged, identify the location of the alleged commission, and designate a date for the offense,”
but it also states that the indictment needs only to include “so much of the common law or
statutory definition of the offense as is sufficient to advise what offense is charged.” Id. at 41.
Thus, “[a]s long as an indictment sufficiently recites the elements of the offense, the
Commonwealth is not required to include all evidence upon which it plans to rely to prove a
particular offense.” Id. at 42 (quoting Sims v. Commonwealth, 28 Va. App. 611, 619-20 (1998));
Farhoumand v. Commonwealth, 288 Va. 338, 352 (2014) “([A]n indictment is not invalid if it
omits or misstates the time at which an offense occurs when time is not an element of the
offense, [though] each indictment must . . . sufficiently apprise[] the defendant of what he must
be prepared to meet.”). Code § 19.2-226 provides that “[n]o indictment or other accusation shall
be quashed or deemed invalid . . . [f]or omitting to state, or stating imperfectly, the time at which
the offense was committed when time is not the essence of the offense.”
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We will uphold the “verdict . . . if the evidence is sufficient to prove beyond a reasonable
doubt that a crime occurred and that the defendant committed the crime, even though the
evidence is such that there may be a reasonable doubt as to the day on which the offense
occurred.” Marlowe v. Commonwealth, 2 Va. App. 619, 623-24 (1986). “Such a result does not
constitute a denial of due process of law.” Id. at 624.
This Court has previously found that an extended period of time during which alleged
sexual crimes occurred against a minor were sufficient to inform the defendant of the time of the
offenses. Clinebell v. Commonwealth, 3 Va. App. 362, 376-78 (1986), aff’d in part, rev’d in
part, 235 Va. 319 (1988). In Clinebell, this Court noted the Commonwealth had been “as
specific as it could with respect to the dates in the indictment” which covered a period of about
one year. Id. at 367. We explained “it is in the nature of child abuse cases involving a parent
that an alibi defense almost always will be difficult to prove.” Id. Though the Court of Appeals’
decision was reversed in part, the Supreme Court of Virginia directly addressed the appellant’s
argument on this issue, explaining, “Clinebell first contends that the indictments were fatally
defective because they failed to specify the exact dates of the alleged offenses. We conclude that
the indictments are legally sufficient, and on this issue, we affirm the holding and rationale of the
Court of Appeals.” Clinebell, 235 Va. at 321.
Here, none of the statutes under which appellant was charged and convicted included
time as an element. See Code §§ 18.2-61, 18.2-67.5:3, 18.2-67.1, 18.2-67.5:2, 18.2-67.2,
18.2-67.3, and 18.2-370. Thus, the time frames in the indictments and bill of particulars were
sufficient to apprise appellant of “the nature and character of the offenses.” Rams, 70 Va. App.
at 42; Farhoumand, 288 Va. at 351. The offense dates recited in the indictments began on
November 1, 2013, the date that appellant and O.B.’s family moved to the Franwill Avenue
house. Further, despite the court ruling that it would allow appellant to provide “rough
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estimates” of the times he was living at another location, appellant never offered any type of alibi
defense. The circuit court did not abuse its discretion when it did not require the Commonwealth
to provide more specific information about the date, time, and location of the offenses or by
overruling appellant’s objection that the lack of more specific dates prevented him from
providing an adequate notice of alibi defense.
CONCLUSION
For the reasons set forth above, we affirm the circuit court’s judgment.
Affirmed.
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