Christopher Sean Pickett v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Huff, Judge Decker and Senior Judge Clements
UNPUBLISHED
Argued at Richmond, Virginia
CHRISTOPHER SEAN PICKETT
MEMORANDUM OPINION* BY
v. Record No. 1320-14-2 CHIEF JUDGE GLEN A. HUFF
JULY 21, 2015
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF DINWIDDIE COUNTY
Paul W. Cella, Judge
(Marlene A. Harris, on brief), for appellant. Appellant submitting
on brief.
(Mark. R. Herring, Attorney General; Eugene Murphy, Senior
Assistant Attorney General, on brief), for appellee. Appellee
submitting on brief.
Christopher Sean Pickett (“appellant”) appeals his convictions for two counts of carnal
knowledge, in violation of Code § 18.2-63, and two counts of indecent liberties, in violation of
Code § 18.2-370. After a bench trial in the Circuit Court of Dinwiddie County (“trial court”),
appellant was sentenced to a total of forty years in the Virginia Department of Corrections with
thirty-three years and eight months suspended. On appeal, appellant asserts that the trial court
erred
when finding the evidence sufficient for a finding of guilt against
appellant because there was insufficient evidence that appellant
had . . . sex with the complaining witness, as the credibility of
[K.C.] was impeached, the evidence that the court used to
corroborate the statements of the complaining witness’ testimony,
that she was pregnant, and that she had an abortion was
inadmissible, and that inadmissible evidence was the basis for the
finding of guilt, thus the error was not harmless. Further, the
testimony of the Commonwealth’s witness Jennifer Belvin was
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
impeached by another witness, and the testimony of [K.C.] was
impeached by another witness as well . . . .
For the following reasons, this Court affirms the trial court’s ruling.
I. BACKGROUND
On appeal, “‘we consider the evidence and all reasonable inferences flowing from that
evidence in the light most favorable to the Commonwealth, the prevailing party at trial.’”
Williams v. Commonwealth, 49 Va. App. 439, 442, 642 S.E.2d 295, 296 (2007) (en banc)
(quoting Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004)). So viewed,
the evidence is as follows.
Appellant lived with his girlfriend and her fourteen-year-old daughter, K.C. In June
2013, K.C. borrowed a cell phone belonging to her stepfather. When the stepfather received the
phone back from K.C. he observed that the phone was still logged onto K.C.’s Facebook instant
messaging application. The stepfather noticed that appellant’s name appeared in the messaging
windows. When the stepfather asked K.C. about the messages, she at first said nothing but then
“started crying.” Eventually, K.C. explained that she and appellant had been “seeing each
other.” After their conversation, the stepfather “immediately called the magistrate” and brought
K.C. to the Dinwiddie County Sheriff’s Office.
At the sheriff’s office, K.C. spoke with Lieutenant Duane H. Gilliam (“Gilliam”) and
“made allegations of her mother’s boyfriend who she identified as [appellant] having been
engaging in sexual intercourse . . . , oral sex and digital penetration” with her. Shortly thereafter,
Gilliam questioned appellant, collected “[s]heets and a pair of underwear” stained with a red
substance as evidence, and took out a warrant against appellant. Subsequently, a grand jury
indicted appellant on charges of indecent liberties with a child under the age of fifteen years and
carnal knowledge with a child older than thirteen but younger than fifteen years old.
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Appellant waived his right to a jury. At the bench trial, K.C. testified that, around
Christmas 2012, appellant “penetrated” her without a condom. After this initial encounter, K.C.
indicated that she and appellant continued having sexual relations “[t]wo, three times a week, or
more” until May 2013. In May 2013, K.C. began to experience severe stomach and back pains.
On May 3, 2013, K.C. went to the doctor and learned that she was pregnant. K.C. had an
abortion on June 12, 2013. Between the dates of her pregnancy diagnosis and her abortion, K.C.
and appellant continued having sexual relations multiple times each week. K.C. testified she had
sexual intercourse with appellant in the days immediately following her abortion which resulted
in her bleeding on the bed sheets. The stained sheets were given to the investigating officer. In
his testimony, Gilliam indicated that he collected “[s]heets and a pair of underwear” and saw “a
red substance on the sheets.” Additionally, Gilliam stated appellant was born on June 17, 1980
and K.C. was born on July 30, 1998.
The girlfriend testified that in June 2013 K.C. told her that she and appellant had been
having sexual relations for six months. The girlfriend indicated that she confronted appellant
who initially denied K.C.’s allegations. Over objection, the girlfriend stated that she took K.C.
to the doctor after K.C. complained of stomach pains; the physician advised that K.C. was
pregnant. Additionally, the girlfriend indicated she “saw a positive pregnancy print off from the
hospital.” Moreover, she testified that appellant indicated he wanted to raise the child as his own
but K.C. elected to get an abortion.
Appellant testified in his defense and denied any sexual relationship with K.C. When
asked about his Facebook communications with K.C., appellant admitted that he “told [K.C.]
[he] loved her a lot of times.” Moreover, appellant conceded that he spoke with K.C. about her
pregnancy but denied ever stating he “wanted to take the kid as [his] own.” Additionally,
appellant offered Corporal T.A. Stuart’s (“Stuart”) testimony to impeach K.C.’s testimony.
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Specifically, Stuart testified that on May 28, 2013, he contacted the girlfriend regarding an
unrelated incident. Stuart indicated that the girlfriend told him that K.C. had an “issue with not
telling the truth” and “lies when she can’t get her way.”
At the conclusion of the evidence, appellant argued that K.C.’s testimony had been
impeached and was not credible. The Commonwealth argued that the totality of the evidence
supported a guilty verdict. In finding appellant guilty, the trial court indicated that “the
[appellant’s] explanation of the nature of his relationship with [K.C.] seems implausible” and
“[i]f all we had was his testimony against hers this would be a very close case.” The trial court,
however, explained that
what tips me in the favor of the Commonwealth is the fact she
became pregnant and had an abortion and the fact he said he
wanted to raise the child as his own. I think it would be highly
unlikely and implausible that anyone else would have impregnated
her . . . . She testified that they continued to have sexual
intercourse after the abortion. And I accept that testimony as well.
This appeal followed.
II. STANDARD OF REVIEW
Code § 19.2-324.11 provides “when a challenge to a conviction rests on a claim that the
evidence was insufficient because the trial court improperly admitted evidence, the reviewing
court shall consider all evidence admitted at trial to determine whether there is sufficient
evidence to sustain the conviction.” If this Court were to determine that the evidence was
erroneously admitted and not harmless error, “the case shall be remanded for a new trial if the
Commonwealth elects to have a new trial.” Code § 19.2-324.1.
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In granting appellant’s petition for appeal, this Court instructed the parties to “address
the impact of recently adopted Code § 19.2-324.1 which addresses the appellate standard of
review of erroneously admitted evidence in reviewing the legal sufficiency of the evidence on
appeal.”
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When reviewing a challenge to the sufficiency of the evidence below, this Court will
“‘examine the evidence that supports the conviction and allow the conviction to stand unless it is
plainly wrong or without evidence to support it.’” Commonwealth v. McNeal, 282 Va. 16, 20,
710 S.E.2d 733, 735 (2011) (quoting Vincent v. Commonwealth, 276 Va. 648, 652, 668 S.E.2d
137, 139-40 (2008)). This means the trial court’s decision cannot be overturned on appeal unless
no “‘rational trier of fact’” could have come to the conclusion it did. 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)); Pease v. Commonwealth, 39 Va. App. 342, 355, 573 S.E.2d 272, 278
(2002) (en banc) (“We let the decision stand unless we conclude no rational juror could have
reached that decision.”), aff’d, 266 Va. 397, 588 S.E.2d 149 (2003). “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, 443 U.S. at 318-19). Instead, the only “relevant question is, after reviewing
the evidence in the light most favorable to the prosecution, whether any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.” Sullivan v.
Commonwealth, 280 Va. 672, 676, 701 S.E.2d 61, 63 (2010) (emphasis added).
III. ANALYSIS
On appeal, appellant asserts that the trial court erred in finding the evidence sufficient for
appellant’s conviction. Specifically, appellant contends that the trial court improperly admitted
and relied on hearsay evidence to corroborate K.C.’s impeached testimony. Consequently,
appellant’s sufficiency argument relies on his contention that K.C.’s testimony was impeached
and, therefore, unreliable.
The testimony of a victim, if believed, can be sufficient, without corroborating evidence,
to support a conviction of sexual offenses such as those at issue here. Wilson v. Commonwealth,
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46 Va. App. 73, 87, 615 S.E.2d 500, 507 (2005) (“a conviction for rape and other sexual offenses
may be sustained solely upon the uncorroborated testimony of the victim”). “A rape conviction
may be sustained solely upon the testimony of the victim. There is no requirement of
corroboration. . . . [This principle] also extends . . . to . . . other sexual offenses.” Fisher v.
Commonwealth, 228 Va. 296, 299, 321 S.E.2d 202, 203 (1984). Indeed, “[t]he reason for the
rule is the typically clandestine nature of the crime” and that “[t]here are seldom any witnesses to
such an offense except the perpetrator and the victim.” Id. at 299, 321 S.E.2d at 204.
Additionally, regarding impeaching the victim’s testimony, the Supreme Court has explained
“[w]hen the law says that it is for [the trier of fact] to judge . . . the
credibility of a witness, it is not a matter of degree. So long as a
witness deposes to facts, which, if true, are sufficient to maintain
[its] verdict, then the fact that his credit is impeached . . . by
contradictory statements . . . affects only his credibility, and goes
not to his competency but to the weight and sufficiency of his
testimony. If the [trier of fact], in [its] discretion, see[s] fit to base
the verdict upon his testimony, . . . there can be no relief in an
appellate court.”
Simpson v. Commonwealth, 199 Va. 549, 557-58, 100 S.E.2d 701, 707 (1957) (quoting Parsons
v. Parker, 160 Va. 810, 821, 170 S.E. 1, 4 (1933)); see also Burke v. Scott, 192 Va. 16, 23-24, 63
S.E.2d 740, 744 (1951).
Appellant argues that K.C.’s testimony is unreliable because it was impeached by Stuart’s
testimony that K.C. had an “issue with not telling the truth.” Credibility determinations by the
trial court are afforded great deference. Simpson, 199 Va. at 557-58, 100 S.E.2d at 707 (“If the
[trier of fact] . . . see[s] fit to base [its ruling] upon [impeached testimony] . . . there can be no
relief in an appellate court.”). Notwithstanding any impeachment, the trial court accepted K.C.’s
testimony of a sexual relationship between herself and appellant. Such finding of fact is binding
unless there is no basis whatsoever for the finding. Lanier v. Commonwealth, 10 Va. App. 541,
549, 394 S.E.2d 495, 500 (1990) (“the finding of the trial judge as to the credibility of witnesses
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and the weight to be given their testimony . . . will not be disturbed unless it is plainly wrong or
without evidence to support it”). K.C.’s testimony, moreover, was supported by her pregnancy
and subsequent abortion.
Additionally, appellant argues that the stepfather’s and girlfriend’s testimony regarding
K.C.’s statements about her sexual activities with appellant were inadmissible hearsay. Code
§ 19.2-268.2 outlines the “recent complaint hearsay exception” and provides that “the fact that
the person injured made complaint of the offense recently after commission of the offense is
admissible, not as independent evidence of the offense, but for the purpose of corroborating the
testimony of the complaining witness.” While “[e]vidence of a victim’s out-of-court complaint
is not admissible as independent evidence of the offense . . . it is admissible to corroborate the
victim’s testimony and other independent evidence of the offense.” Mitchell v. Commonwealth,
25 Va. App. 81, 85-86, 486 S.E.2d 551, 553 (1997). Consequently, the stepfather’s and
girlfriend’s statements were admissible under the “recent complaint” exception as they were
utilized to corroborate K.C.’s independent testimony and, therefore, the trial court did not abuse
its discretion in allowing their admission.
Moreover, appellant contends that the trial court improperly admitted evidence that K.C.
was pregnant and received an abortion. Appellant, however, conceded both of these points in his
own testimony. “‘[W]here an accused unsuccessfully objects to evidence which he considers
improper and then on his own behalf introduces evidence of the same character, he thereby
waives his objection, and we cannot reverse for the alleged error.’” Hubbard v. Commonwealth,
243 Va. 1, 9, 413 S.E.2d 875, 879 (1992) (quoting Saunders v. Commonwealth, 211 Va. 399,
401, 177 S.E.2d 637, 638 (1970)).
Specifically, appellant testified that he and K.C. “had talked about [raising the child] but
[he] never said that [he] wanted to take the kid as [his] own.” Moreover, appellant stated
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“whether or not [K.C.] decides to keep the kid or not, I said I would help you work through it.”
As “a litigant waives an objection to evidence when he introduces ‘evidence dealing with the
same subject as part of his own case-in-chief,’” appellant’s statements regarding K.C.’s
pregnancy and abortion constituted a waiver of his assertion that the Commonwealth’s testimony
on these issues was inadmissible. Isaac v. Commonwealth, 58 Va. App. 255, 260, 708 S.E.2d
435, 437 (2011) (quoting Pettus v. Gottfried, 269 Va. App. 69, 79, 606 S.E.2d 819, 825 (2005)).
In any event, “[e]ven though testimony is objectionable as hearsay, its admission is
harmless error when the content of the extra-judicial statement is clearly established by other
competent evidence.” Schindel v. Commonwealth, 219 Va. App. 814, 817, 252 S.E.2d 302, 304
(1979). In her testimony, K.C. established that she and appellant had a sexual relationship from
December 2012 until June 2013. Moreover, K.C. indicated that she became pregnant in May and
received an abortion in June 2013. K.C.’s testimony alone sufficiently established appellant’s
crimes. Fisher, 228 Va. at 299, 321 S.E.2d at 20. Accordingly, admitting hearsay evidence on
these points would be, at worst, harmless. Therefore, this Court finds that the trial court did not
err in finding sufficient evidence to convict appellant.
IV. CONCLUSION
Finding no error, this Court affirms the trial court’s rulings.
Affirmed.
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