Dawit Alemayehu Habtemariam v. Commonwealth of Virginia ( 2013 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Huff
UNPUBLISHED
Argued at Chesapeake, Virginia
DAWIT ALEMAYEHU HABTEMARIAM
MEMORANDUM OPINION * BY
v. Record No. 0092-12-1 JUDGE ROBERT P. FRANK
JANUARY 15, 2013
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Leslie L. Lilley, Judge
James O. Broccoletti (Zoby, Broccoletti & Normile, P.C., on brief),
for appellant.
Craig W. Stallard, Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
Dawit Alemayehu Habtemariam, appellant, was convicted, by a jury, of forcible sodomy, in
violation of Code § 18.2-67.1. On appeal, he challenges the sufficiency of the evidence, contending
that the Commonwealth failed to prove penetration. For the reasons stated, we affirm the judgment
of the trial court.
BACKGROUND
The victim, Y.T., rented a room from appellant. On July 6, 2009, appellant entered Y.T.’s
room, pushed her on her bed, and took off her shorts and underwear. He demanded Y.T. touch his
penis. Y.T. testified appellant “placed his mouth on my vagina. He bit a tip of my vagina and he
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
pulled it with his teeth.” She testified he also licked her vagina and that he inserted his penis in her
vagina, all the while telling him to stop.1
Detective Brendon Paulsen of the Virginia Beach Police Department interviewed appellant
at appellant’s residence. The detective advised appellant of the complaint Y.T. filed against him.
Appellant denied any sexual contact with her after the detective explained the specific sexual acts
alleged by Y.T. The detective then left, telling appellant he would return that afternoon after
obtaining the results of Y.T.’s physical examination.
Paulsen obtained warrants for appellant’s arrest and returned to appellant’s residence.
Again, appellant denied any sexual contact. Later in the interview, appellant finally admitted “he
had sexual interaction with [Y.T.].” Appellant admitted fondling her and “placing his mouth onto
her vagina.” The detective then arrested appellant.
This appeal follows.
ANALYSIS
On appeal, appellant maintains the evidence was insufficient to prove him guilty of forcible
sodomy (cunnilingus) because of the Commonwealth’s failure to prove penetration.
An appellate court does not “‘ask itself whether it believes that the evidence at the trial
established guilt beyond a reasonable doubt.’” Williams v. Commonwealth, 278 Va. 190, 193, 677
S.E.2d 280, 282 (2009) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). “Rather, the
relevant question is whether ‘any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.’” Id. (quoting Jackson, 443 U.S. at 319). Thus, when a jury has
rendered its verdict, “it is not for this court to say that the evidence does or does not establish his
guilt beyond a reasonable doubt because as an original proposition it might have reached a different
1
Appellant was also charged with rape in violation of Code § 18.2-61, but was acquitted
of that charge.
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conclusion.” Cobb v. Commonwealth, 152 Va. 941, 953, 146 S.E. 270, 274 (1929). Suffice it to
say, an “appellate court is no substitute for a jury.” Id.
This deferential appellate standard “applies not only to findings of fact, but also to any
reasonable and justified inferences the fact-finder may have drawn from the facts proved.” Sullivan
v. Commonwealth, 280 Va. 672, 675, 701 S.E.2d 61, 63-64 (2010); see also Clanton v.
Commonwealth, 53 Va. App. 561, 566, 673 S.E.2d 904, 907 (2009) (en banc). Thus, a fact finder
may “draw reasonable inferences from basic facts to ultimate facts,” Haskins v. Commonwealth, 44
Va. App. 1, 10, 602 S.E.2d 402, 406 (2004) (citation omitted), unless doing so would push “into the
realm of non sequitur,” Thomas v. Commonwealth, 48 Va. App. 605, 608, 633 S.E.2d 229, 231
(2006) (citation omitted).
The issue presented here is what constitutes sufficient evidence of penetration to support
a conviction of forcible sodomy by engaging in cunnilingus in violation of Code § 18.2-67.1.
“[P]enetration is an essential element of the crime of sodomy.” Ryan v. Commonwealth, 219
Va. 439, 444, 247 S.E.2d 698, 702 (1978). However, penetration in sodomy, as in rape, can be
proved by circumstantial evidence, and the penetration “need be only slight.” Id.
To resolve this issue, we first address the definition of cunnilingus. In Horton v.
Commonwealth, 255 Va. 606, 499 S.E.2d 258 (1998), the Supreme Court of Virginia defined
cunnilingus as ‘“stimulation of the vulva or clitoris with the lips or tongue.”’ Id. at 612, 499
S.E.2d at 261 (quoting Webster’s Third New International Dictionary 554 (1993)). “Since
cunnilingus involves stimulation of the vulva or clitoris and the vulva encompasses the
outermost part of the female genitalia, we conclude that penetration of any portion of the vulva is
sufficient to prove sodomy by cunnilingus. Penetration of the vaginal opening or vagina is not
required.” Id. at 613, 499 S.E.2d at 261-62. In other words, “insertion of the defendant’s tongue
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into the victim’s vagina need not be shown to prove cunnilingus.” Love v. Commonwealth, 18
Va. App. 84, 88, 441 S.E.2d 709, 712 (1994).
In order to evaluate whether testimony in this case proves penetration, we consider the
Supreme Court’s discussion of the anatomical structure of the female genitalia. In Horton, the
Supreme Court referenced our statement in Love, that ‘“penetration of any portion of the vulva
which encompasses the ‘external parts of the female sex organs considered as a whole’ and
includes, beginning with the outermost parts, the labia majora, labia minora, hymen, vaginal
opening and vagina . . . , is sufficient to show penetration.’” Horton, 255 Va. at 613, 499 S.E.2d
at 261 (quoting Love, 18 Va. App. at 88, 441 S.E.2d at 712). The issue of penetration is a
question for the jury upon the evidence in the case and the penetration that must be shown need
be only slight. Rowland v. Commonwealth, 147 Va. 636, 639, 136 S.E. 564, 565 (1927).
The Supreme Court’s decision in Horton is dispositive. In that case, a twelve-year-old
victim testified Horton licked her vagina and attempted to insert his penis into her vagina.
Horton, 255 Va. at 609, 499 S.E.2d at 259. She had learned proper terminology for parts of her
body from a class she had taken in school. Id. The Supreme Court found, based on her
testimony, that Horton penetrated the victim with his tongue. Id. at 614, 499 S.E.2d at 262. The
Court concluded that because of her class at school, she properly used the words “vagina” and
“penis” in describing Horton’s attempt to insert his penis in her vagina. Id. See also Ryan, 219
Va. at 444-45, 247 S.E.2d at 702 (affirming conviction for oral sodomy in which victim testified
that defendant licked her vagina with his tongue after attempting unsuccessfully to engage in
sexual intercourse).
Appellant seeks to distinguish Horton by contending Y.T. did not display comprehensive
knowledge of her female genitalia. Thus, he reasons, Y.T., although she referenced “vagina,”
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used that term in a generic, not specific, reference to her vagina, as opposed to other parts of her
genitalia. Nothing in the record supports this speculative argument.
Here, Y.T. was a thirty-eight-year-old woman with prior sexual experience. She
recognized that when appellant entered her bedroom, he had an erect penis. Like the victim in
Horton, Y.T. referred to the words “penis” and “vagina.” In describing appellant’s actions, she
specifically testified appellant inserted his penis in her vagina. She further testified appellant
placed his mouth on her vagina, bit it, and pulled it with his teeth. It is clear that Y.T. was
referring to the correct male and female anatomical terms to describe the sexual acts committed
by appellant. 2
In order for appellant to lick Y.T.’s vagina, by necessity, he had to penetrate the
outermost parts of the female genitalia. These are the same facts as in Horton.
Appellant points to several inconsistencies in Y.T.’s testimony. At one point, she
testified appellant “placed his mouth to my vagina.” She testified appellant bit the tip of her
vagina and said appellant licked her vagina. He had his mouth on her vagina. On
cross-examination, the victim again stated that appellant put his mouth “to” her vagina.
Appellant thus describes Y.T.’s testimony as “equivocal,” but the record belies this
contention. He unsuccessfully attempts to bring the facts of the instant case to come within the
dictates of Moore v. Commonwealth, 254 Va. 184, 491 S.E.2d 739 (1997). In Moore, the young
victim, under the age of thirteen, testified Moore placed his penis both “in” and “on” her vagina.
254 Va. at 189, 491 S.E.2d at 741. The Supreme Court concluded the Commonwealth’s
2
Appellant contends the in-court translation of Y.T.’s testimony was inaccurate and
unreliable. This issue was raised in appellant’s petition for appeal, but we did not grant a writ on
this issue and thus, we will not review it. Rule 5A:12(c). “Only those arguments presented in
the petition for appeal and granted by this Court will be considered on appeal.” McLean v.
Commonwealth, 30 Va. App. 322, 329, 516 S.E.2d 717, 720 (1999) (en banc). Further, Rule
5A:12 contains no “good cause” or “ends of justice” exception. See Thompson v.
Commonwealth, 27 Va. App. 620, 626, 500 S.E.2d 823, 826 (1998).
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evidence was in a “state of equipoise” as to penetration. Id. As the Supreme Court later
observed in Horton, “[t]he critical factor in Moore was the victim’s ambiguous testimony.”
Horton, 255 Va. at 615, 499 S.E.2d at 262.
Moore is inapposite. In Moore, the Supreme Court characterized the young victim’s
testimony as:
In one breath, the victim said that “he rubbed it on the inside of my
vagina.” In the next breath, after the prosecutor asked her to “back
up a minute,” she answered “Yes” to the question, “And he was
rubbing it on your vagina?” Again, when asked by the prosecutor
to “go back,” she answered affirmatively to the question, “Your
testimony was you felt his penis on your vagina?”
Moore, 254 Va. at 189, 491 S.E.2d at 741-42.
In the instant case, the victim unequivocally testified that appellant licked her vagina.
Under Horton, evidence of penetration is sufficient upon testimony the perpetrator licked the
victim’s vagina. As stated above, only the vulva needs to be penetrated. Here, the evidence is
sufficient to prove appellant penetrated the victim’s vulva.
Here, appellant confirmed that he placed his mouth on Y.T.’s vagina. The jury heard
Y.T.’s testimony and appellant’s admission, and factually found that penetration occurred.
Credible evidence supports that finding. We cannot, as a matter of law, hold that this finding is
wrong.
We affirm the judgment of the trial court.
Affirmed.
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