William John Bartz, Jr. v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Bumgardner
Argued at Richmond, Virginia
WILLIAM JOHN BARTZ, JR.
MEMORANDUM OPINION * BY
v. Record No. 1374-98-2 JUDGE SAM W. COLEMAN III
JUNE 29, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
Dixon L. Foster, Judge Designate
Elwood Earl Sanders, Jr., Appellate Defender
(Public Defender Commission of Virginia, on
briefs), for appellant.
Robert H. Anderson, III, Assistant Attorney
General (Mark L. Earley, Attorney General;
Richard B. Campbell, Assistant Attorney
General, on brief), for appellee.
A jury convicted William J. Bartz, Jr., of rape, sodomy, and
abduction of CT, a thirteen-year-old girl. The jury fixed his
sentences at ten years for rape, twenty years for abduction and
ten years for sodomy, which are to run consecutively. On appeal,
Bartz contends that the trial court erred (1) in not setting aside
the verdicts because the testimony of the complaining witness was
inherently incredible, (2) in not allowing a defense witness to
testify about the complaining witness's bad reputation in the
community for truth and veracity, (3) in admitting hearsay
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
evidence of the complaining witness's long-delayed prior
complaint, and (4) in instructing the jury that they could not run
sentences concurrently but the court could. Finding no reversible
error, we affirm.
BACKGROUND
"Where the sufficiency of the evidence is challenged after
conviction, it is our duty to consider it in the light most
favorable to the Commonwealth and give to it all reasonable
inferences fairly deducible therefrom." Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
So viewed, the evidence proved that Bartz had resided with
CT's family since 1992 after CT's mother deserted the family.
CT's father worked from 3:00 p.m. to 11:00 p.m., during which time
Bartz watched CT and her brother until their father returned home.
One afternoon in the winter of 1992, when CT was thirteen, she
came home from school and encountered Bartz clad in only a tee
shirt and underpants. After leaving and returning to the house
five minutes later, she again encountered Bartz standing at the
top of the stairway wearing nothing but his underpants and boots.
Bartz rapidly came down the stairs, grabbed CT by the hair, and
dragged her down another set of stairs to the basement laundry
room where he threw her against a freezer, and at knifepoint raped
and sodomized her.
After Bartz left the laundry room, CT crawled to her father's
basement bedroom and got his handgun. She then crawled to the
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basement stairs waiting for Bartz to return. When Bartz returned
to the top landing, CT shot at him but she did not believe she hit
him. CT could not find evidence that the bullet had struck inside
the house. However, she testified that the front door was open
and she could see the sky behind Bartz.
In an effort to conceal the incident, CT cleaned the gun,
disposed of the spent cartridge, sprayed air freshener to cover
the gunpowder smell, and threw away the ripped clothing she had
been wearing when Bartz attacked her. Although she bled profusely
for a day and a half, CT never sought medical treatment. CT did
not tell her brother what had happened when he returned later that
day, but the following day she told him to lock all the doors and
windows and to watch for Bartz. CT testified that she did not see
Bartz again but that he returned to the home to pick up his
personal belongings. When CT's father asked about Bartz, she told
him that Bartz had found another place to live.
CT told no one about the incident until one year later, after
having had a nightmare about Bartz raping her. CT told her
cousin, who in turn told her own mother, who later reported it to
CT's estranged mother. Two years after the attack, CT disclosed
some, but not all, of the details about the incident to her
father. CT feared that if her father knew the truth he would
physically attack Bartz and get himself into trouble. When CT
ultimately revealed aspects of the incident to her father, he
became very angry but agreed not to call the police. Eventually,
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CT's mother informed the police, and in December 1996, Bartz was
indicted for the crimes.
In giving the police details about the offense, CT reported
that Bartz was circumcised, that he had a scar on his lower back,
and that he held the knife to her throat with his right hand. At
trial Bartz conceded that he was circumcised, that he had a scar
on his back, and that he was right-handed. Bartz told Officer
Smith that he was never shirtless or otherwise undressed around CT
or her brother.
Karen Brown, a licensed clinical social worker, testified
that CT had symptoms consistent with post traumatic stress
disorder (PTSD) which is frequently associated with traumatic
sexual assault. She noted that one of the four major symptoms of
PTSD is that "the individual would try very hard to avoid anything
that would have to do with the memory of [the trauma], and they
might do that by avoiding certain people or situations or telling
anyone about it." She further testified that CT's symptoms were
inconsistent with having been caused by her mother's desertion of
the family. She testified that frequently victims of traumatic
sexual assault are reluctant to disclose the incident.
Often the victims are afraid that they're
going to be hurt again or they are afraid
that something will happen to their family
if they tell. Often there's a sense of
guilt or self-blame. A feeling of betrayal
. . . if they were close to the person and
[a] feeling that they can't trust anyone
else. And just generally an avoidance of
wanting to talk about it.
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Bartz denied the allegations and presented evidence that he
was too physically disabled to have committed the acts described
by CT. CT testified that she never noticed any of Bartz's
physical limitations. The evidence showed that despite Bartz's
alleged limitations, he could get in and out of his jeep which
had heightened suspension, he hunted, and he had started a
business clearing lots and cutting trees.
Jerry Michael Davis testified for the defense, without
objection, that CT's reputation for truthfulness and veracity
was "not very good at all." Bartz then called Melissa Davis.
The Commonwealth objected, and the defense proffered that she
would testify that CT's reputation in the community for
truthfulness and veracity was poor. The following dialogue
ensued.
[COMMONWEALTH]: Judge, it's not –- you know,
I haven't objected up to this point.
[THE COURT]: You didn't make any objection
before, but I think it's a proper objection.
[COMMONWEALTH]: You can't bring a witness's
credibility –- you can't challenge a witness
that way. It's not proper.
[DEFENSE]: Well, I think it's proper or I
wouldn't have done it. Now, if I've made a
mistake, and the Court wants to overrule me,
that's fine, but I certainly don't bring
witnesses in here just for the heck of
bringing witnesses in here. I think the
court knows that.
[COMMONWEALTH]: Character, general
character evidence is only admissible
regarding the defendant to bolster his
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character. You can't just -- you can't do
that with a witness in a case.
[DEFENSE]: All right, I'll withdraw this
witness.
[COMMONWEALTH]: Thank you.
[THE COURT]: All right, you can step down.
Next witness.
Later, during sentencing deliberation, the jury asked a
question of the court:
[JURY FOREMAN]: [D]oes [the sentence] have
to be added together, twenty, plus five,
plus five, plus five, or can it be
concurrent, or do we have to concern
ourselves with that?
[THE COURT]: You don't have to concern
yourselves with that. All you have to do is
to –- I'll tell you this: That any sentence
you impose, and I think probably I should
tell you this, any sentence that you impose
. . . will run . . . consecutively. They
will not run concurrently. Now, the Court
. . . does have a right to order that they
run concurrently, but the jury does not.
. . . So what you have to do is impose a
sentence in each of the particular cases or
whatever you think is appropriate for that
particular offense, and those sentences that
you bring back and present to the Court will
. . . run consecutively. The Court has the
right to change it, but the jury does not
have the right to say that they run
consecutively or concurrently.
The judge then asked if counsel had any questions or any
problems with his answer. Both counsel responded that they did
not.
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ANALYSIS
Credibility of the Complaining Witness's Testimony
The decision of a trial court will not be disturbed unless
plainly wrong or without evidence to support it. See Wright v.
Commonwealth, 224 Va. 502, 505, 297 S.E.2d 711, 713 (1982).
Where the uncorroborated testimony of a complaining witness is
"inherently incredible, or so contrary to human experience or to
usual human behavior as to render it unworthy of belief" then
the evidence is insufficient to sustain a verdict of guilty
beyond a reasonable doubt. Willis & Bell v. Commonwealth, 218
Va. 560, 563, 238 S.E.2d 811, 812-13 (1977). Bartz asks us to
find that CT's testimony was inherently incredible as a matter
of law. We do not find CT's testimony incredible.
"Determining the credibility of witnesses who give
conflicting accounts is within the exclusive province of the
jury, which has the unique opportunity to observe the demeanor
of the witnesses as they testify." Lea v. Commonwealth, 16 Va.
App. 300, 304, 429 S.E.2d 477, 479 (1993).
[O]ur examination of the evidence is
confined to inquiring whether the jury was
warranted, as reasonable [people], in
finding the accused guilty under the
applicable rules of law and not what action
we might have taken as members of the jury.
In testing the credibility and weight to be
ascribed to the evidence, we must give trial
courts and juries wide discretion to which a
living record, as distinguished from a
printed record, logically entitles them.
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Bradley v. Commonwealth, 196 Va. 1126, 1135-36, 86 S.E.2d 828,
834 (1955).
Where a complaining witness offers a credible explanation
for delay in reporting a sexual assault, his or her failure to
immediately report the offending incident does not render the
victim's testimony inherently incredible as a matter of law.
See Corvin v. Commonwealth, 13 Va. App. 296, 299, 411 S.E.2d
235, 237 (1991). Here the record, in particular the explanation
of CT and the testimony of the expert witness, offered ample
justification for the reporting delay. CT, a thirteen year old,
feared her father's reaction and feared Bartz's retaliation.
Additionally, the jury could have inferred from the expert
testimony that CT was reluctant to share her trauma with those
around her, as is common among sexual assault victims who suffer
from PTSD. See, e.g., Woodard v. Commonwealth, 19 Va. App. 24,
28, 448 S.E.2d 328, 330 (1994) (finding a sexual assault
victim's delay in reporting her attack "consistent with the all
too common circumstances surrounding sexual assault on minors --
fear of being disbelieved by others and threat of further harm
by assailant"). In addition, we find that unwillingness on the
part of CT's family to report the incident has no bearing upon
CT's credibility.
Bartz further claims that CT was not worthy of belief
because she gave inconsistent testimony. At trial, CT testified
that Bartz's departing words were "Ouch, ouch" and "You shot
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me." Bartz claims that at the preliminary hearing she testified
he had said, "Have a nice life." In fact, at the preliminary
hearing CT testified that Bartz stood at the top of the stairs
and said "Have a nice life," after which she stated that she
shot at him and he ran out the door yelling "You shot at me."
Contrary to Bartz's argument on appeal, this was not a material
inconsistency that calls into question the credibility of CT's
entire testimony. Furthermore, the fact that CT had difficulty
recalling the date of the incident does not persuade us that CT
fabricated her testimony. Neither the account of what occurred
nor the inconsistencies in CT's testimony render her testimony
inherently incredible. Accordingly, we find the evidence
sufficient to support the jury's verdict. See Fisher v.
Commonwealth, 228 Va. 296, 299, 321 S.E.2d 202, 204 (1984).
Impeachment Evidence
Bartz contends the trial court erred by prohibiting the
defense from calling a witness to testify about CT's reputation
for truth and veracity. We find no reversible error because the
trial judge did not prohibit the witness from testifying, rather
defense counsel withdrew the witness.
The trial court did not rule that the witness could not
testify. Prior to calling Melissa Davis, defense witness Jerry
Michael Davis testified, without objection, that CT's reputation
for truth and veracity in the community was, "not very good at
all." When the defense called Melissa Davis and the
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Commonwealth objected, the defense proffered that she would also
testify that CT had a poor reputation for truth and veracity.
Evidence by one qualified to so testify that a witness's
general reputation for truth and veracity in the community is
bad is a permissible form of impeaching the witness's
credibility. See Clinebell v. Commonwealth, 235 Va. 319,
323-24, 368 S.E.2d 263, 265 (1988). Although the trial judge
expressed a view that the foregoing method of impeaching a
witness was not proper, he did not rule that the witness could
not testify. After some discussion between counsel and the
judge about the propriety of such impeachment evidence, defense
counsel capitulated in the judge's stated view and withdrew the
evidence. Had defense counsel not capitulated, we can only
speculate to what extent the judge may have gone in researching
the issue. The contemporaneous objection requirement of Rule
5A:18 requires that objections be specifically stated so trial
courts have the opportunity to maturely consider issues and
correct problems there rather than encourage unnecessary delays.
Here defense counsel, by withdrawing the witness, did not put
the judge in the position of ruling on the Commonwealth's
objection. Accordingly, the trial judge did not make an
erroneous ruling.
Evidence of the Prior Complaint
Bartz contends the trial court erred by admitting evidence
of CT's prior complaint made two years after the alleged sexual
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assault. Bartz objected to the evidence as hearsay. He also
claims the court erred by admitting the evidence without
determining that a justifiable reason existed for the delay.
Notwithstanding any other provision of law,
in any prosecution for criminal sexual
assault . . . 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.
Code § 19.2-268.2. The Supreme Court and this Court have
recognized that it is neither uncommon nor without justification
for victims to delay reporting incidents of sexual assault. See
Broaddus v. Commonwealth, 126 Va. 733, 748, 101 S.E. 321, 325-26
(1919); Willis & Bell, 218 Va. at 563, 238 S.E.2d at 812-13(recognizing that there may be a credible explanation for such
delay); Terry v. Commonwealth, 24 Va. App. 627, 634, 484 S.E.2d
614, 617 (1997); Corvin, 13 Va. App. at 299, 411 S.E.2d at 237;
Woodard, 19 Va. App. at 28, 448 S.E.2d at 330. Delayed
complaints of sexual assault are admissible for the purpose of
corroborating the testimony of a complaining witness where the
delay is credibly explained, or consistent with the
circumstances. See Terry, 24 Va. App. at 635, 484 S.E.2d at
618; Woodard, 19 Va. App. at 27-28, 448 S.E.2d at 330.
Whether the delay in reporting is sufficiently explained or
justifiable to admit the complaint into evidence is committed to
the sound discretion of the trial judge. See Terry, 24 Va. App.
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at 634-35, 484 S.E.2d at 617-18; Woodard, 19 Va. App. at 28, 448
S.E.2d at 330. Here, CT explained her reasons for delaying in
reporting the incident to her father. The trial judge did not
abuse his discretion in determining that CT's youth at the time
of the offense, the nature and circumstances of the offense, and
the reasons that CT gave for the delay were sufficient to
support the trial court's ruling.
Response to the Jury's Question
Although he concedes that he did not preserve the issue for
appeal, Bartz asks us to reverse his conviction because the
trial judge instructed the jury that the court could run
sentences concurrently. In support of his argument, Bartz cites
Coward v. Commonwealth, 164 Va. 639, 646, 178 S.E. 797, 799-80
(1935), in which the Supreme Court addressed whether a trial
court could instruct the jury about the effect of a good time
credit on their sentence.
It is error for the court, by its
instruction . . . to tell the jury that its
sentence imposed and confirmed may be set
aside or cut down by some other arm of the
State.
* * * * * * *
[I]t is plain error to tell the jury that
under established rule and in the ordinary
course of events such sentence as it may
impose will not be suffered, but will be
substantially diminished.
Id. Although the Supreme Court has held it error to instruct
the jury on how their sentence might be reduced for good
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behavior credit, we have not considered whether a judge errs by
explaining that a jury may not direct that their recommended
sentences run concurrently but the judge may so order.
Because we find that Bartz failed to make a contemporaneous
objection to the court's instruction to the jury, we are barred
by Rule 5A:18 from considering the merits of the question on
appeal. From our review of the record, Bartz has shown no good
cause for failing to object, and it is not necessary that we
address the issue in order to attain the ends of justice.
Mounce v. Commonwealth, 4 Va. App. 433, 436, 357 S.E.2d 742, 744
(1987).
CONCLUSION
In summary, we find the complaining witness's testimony was
not inherently incredible as a matter of law, the trial court
never prohibited defense witness Melissa Davis from testifying
about CT's reputation in the community for truth and veracity,
the trial court did not err in admitting as corroborative
evidence the victim's delayed complaint to her father, and we
are procedurally barred from addressing the propriety of the
trial court's instruction to the jury about consecutive
sentences. Accordingly, we affirm the convictions.
Affirmed.
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