Anfernee Malik Wiggins v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Humphreys, Chaney and Lorish
Argued at Virginia Beach, Virginia
ANFERNEE MALIK WIGGINS
MEMORANDUM OPINION* BY
v. Record No. 0300-21-1 JUDGE ROBERT J. HUMPHREYS
MAY 31, 2022
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
John R. Doyle, III, Judge
Bret D. Lee (Meredith M. Ralls; Benjamin Griffitts; Robinson Law
PLLC, on briefs), for appellant.
Justin B. Hill, Assistant Attorney General (Jason S. Miyares,
Attorney General, on brief), for appellee.
Anfernee Wiggins was convicted of three counts of aggravated sexual battery of a victim
under the age of thirteen, in violation of Code § 18.2-67.3. He was sentenced to fifteen years of
incarceration with six years suspended, for a total active sentence of nine years. Following
sentencing, Wiggins requested that the circuit court release him on post-conviction bail pending
appeal, and the circuit court denied his motion. Wiggins appealed to this Court asserting that the
circuit court erred by denying bail.
I. BACKGROUND
Aaron Kennedy was friends with Anfernee Wiggins. Wiggins lived about a five-minute
walk away from Kennedy’s home. Kennedy had a minor daughter, A.K., and at least three times
between 2015 and 2018, Kennedy left A.K. in Wiggins’ care while Kennedy stepped out to the
“corner store.” A.K. was seven to nine years old during the relevant time. In the fall of 2018,
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
A.K. told her mother and school counselor that she had been sexually assaulted by Wiggins
while in his care.
A.K., who was twelve years old at the time of trial, testified about Wiggins’ assaults on
her. Wiggins had touched her breasts and genitalia with his penis and hands multiple times and
partially penetrated her vagina with his penis. Wiggins also had required A.K. to hold his erect
penis in her hands.
Wiggins was indicted on three counts of aggravated sexual battery of a victim under the
age of thirteen. The circuit court granted Wiggins bail, and he remained on bail until trial.
Following a bench trial, the circuit court stated on the record that it found A.K.’s
testimony credible. The circuit court found Wiggins guilty of three charges of aggravated sexual
battery and ordered a psychosexual evaluation of Wiggins to be completed before sentencing.
The psychosexual evaluation showed that Wiggins met the criteria for pedophilia
disorder, and the evaluator found that Wiggins was at an average risk to reoffend.1 At the
sentencing hearing, the Commonwealth pointed out that A.K., in her victim statement, said that
her father was still living “down the street” from Wiggins. A.K. reported that she sometimes
saw Wiggins and when that happened, her heart would beat very quickly, and it was hard for her
to breathe.
As noted, the circuit court ultimately sentenced Wiggins to fifteen years of incarceration
with six years suspended, so Wiggins’ active sentence to be served was nine years long.
Wiggins asked the circuit court to release him on bond pending his appeal. Wiggins argued that
he was no “more of a danger to the community than when he’s been on pretrial release.”
1
Portions of the record in this case were sealed by order of the circuit court in accordance
with Code § 19.2-299. To the extent that this opinion mentions facts found in the sealed record,
we unseal those portions of the record relevant to the decision in this case. The remainder of the
record remains sealed.
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Wiggins also noted that he had had no contact with A.K. or her family while on pretrial bond.
The circuit court denied the motion:
The issue the [c]ourt has at this point, of course, [is that]
he’s convicted of three convictions of aggravated sexual battery.
One can say that’s been the case since the trial as well, and that
point will be well taken. At this point the [c]ourt now has all of
this information with the psychosexual evaluation, the guidelines,
things of that nature, and has imposed a nine-year sentence.
It implemented many provisions concerning his treatment
and supervision once he completes his sentence and is at liberty in
the community. The request to remain on pretrial release
supervision, there’s no way for any of those measures to be
implemented in the interim through pretrial supervision as it would
be once he is released to probation and parole.
The [c]ourt feels that to continue the defendant on bond
after all of this information before the [c]ourt and he’s been
sentenced to an active nine-year sentence where he would just
continue to be at liberty in the community without any sex
offender treatment or special sex offender provisions of
supervision, etc., with the expertise of probation and parole in
implementing those measures and along with all of the
recommendations of Dr. Wheeler to be implemented when he is
released, I think, would be a mistake. So, I’m going to deny the
motion for bond.
II. ANALYSIS
A. Standard of Review
The statute granting circuit courts the authority to allow post-conviction bail, Code
§ 19.2-319, “contemplates that [such authority] will be exercised with a reasonable discretion, and
unless it appears to an appellate court that such discretion has been abused, the appellate court
should not disturb the action of the trial court.” Dowell v. Commonwealth, 6 Va. App. 225, 228
(1988) (quoting Commonwealth v. Smith, 230 Va. 354, 362 (1985)); see also Rule 5A:2(c) (“An
order setting or denying bail pending appeal in a criminal case is reviewable for abuse of
discretion.”). “[T]he abuse of discretion standard requires a reviewing court to show enough
deference to a primary decisionmaker’s judgment that the court does not reverse merely because the
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reviewing court would have come to a [different] result in the first instance.” Commonwealth v.
Duse, 295 Va. 1, 7 (2018) (quoting Lawlor v. Commonwealth, 285 Va. 187, 212 (2013)).
Courts can abuse their discretion one of three ways: by disregarding a relevant factor that
should have been given significant weight, by considering and giving significant weight to an
irrelevant or improper factor, and by considering all proper factors and no improper ones but, in
weighing those factors, committing a clear error in judgment. See Lawlor, 285 Va. at 213 (quoting
Landrum v. Chippenham & Johnston-Willis Hosps., 282 Va. 346, 352 (2011)).
We review the circuit court’s bail determination for an abuse of discretion and defer to its
factual findings unless such findings are plainly wrong or without evidence to support them. See
Secret v. Commonwealth, 296 Va. 204, 224 (2018). “The sole responsibility to determine the
credibility of witnesses, the weight to be given their testimony, and the inferences to be drawn from
proven facts lies with the fact finder.” Ragland v. Commonwealth, 67 Va. App. 519, 529-30 (2017).
“That responsibility lies with the fact finder because ‘[t]his [C]ourt[,] sitting as an appellate court,
and knowing nothing of the evidence or of the witness, except as it appears on the paper . . . [is]
incompetent to decide on the credibility of the testimony.’” Commonwealth v. McNeal, 282 Va.
16, 22 (2011) (citation omitted). It is within the province of the fact finder to draw inferences from
the proven evidence, so long as those inferences are reasonable and justified. See Commonwealth v.
Hudson, 265 Va. 505, 514 (2003).
B. Whether the Circuit Court Abused Its Discretion
We begin by addressing Wiggins’ contention that there was not a presumption against
bail in this case. Code § 19.2-319, the statute governing post-conviction bail, states that
[I]f the conviction was for a violent felony as defined in
§ 19.2-297.1 and the defendant was sentenced to serve a period of
incarceration not subject to suspension, then the court shall
presume, subject to rebuttal, that no condition or combination of
conditions of bail will reasonably assure the appearance of the
convicted person or the safety of the public.
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On brief, Wiggins concedes that aggravated sexual battery is a violent felony under Code
§ 19.2-297.1 (“For the purposes of this section, ‘act of violence’ means (i) any one of the
following violations . . . of Title 18.2: . . . criminal sexual assault punishable as a felony under
Article 7 . . . .”). Wiggins argues, however, that the presumption against bail did not apply to
him. He contends that the presumption against bail only applies to persons convicted of violent
felonies who are sentenced to a mandatory minimum period of incarceration that cannot be
suspended. Wiggins essentially asks us to interpret the phrase “not subject to suspension” as
meaning receiving the “mandatory minimum punishment.” Wiggins does not point to any
caselaw or statutory authority to support his interpretation of Code § 19.2-319.
Assuming without deciding that the presumption against bail did not apply to Wiggins,
we note that his contention that the circuit court erred by considering “facts not in evidence” and
disregarding proper factors when denying bail is not supported by the record. Wiggins contends
that the circuit court disregarded whether he would appear when required and whether he was an
unreasonable danger to himself or the public. He also argues that the circuit court “abused its
discretion by basing its decision solely on an ‘improper factor’ that was ‘given significant
weight.’” The “improper factor” he alleges is the circuit court’s observation that Wiggins would
not be able to receive sex offender treatment if he was released on bail.
Wiggins’ argument is flawed. We have held that Code § 19.2-319 requires the circuit
court judge to consider questions essential to all bail decisions, which are whether the defendant
will appear at such other time and place as may be directed and whether the defendant’s liberty
will constitute an unreasonable danger to himself and the public. See Dowell, 6 Va. App. at 229.
We note that “post-conviction bail is generally less liberally accorded than in the pretrial stage.”
Id. at 228 (quoting State ex rel. Bennett v. Whyte, 258 S.E.2d 123, 127 (W. Va. 1979)). The
decision to grant or deny bail should be made by the circuit court after considering the evidence
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and the “total record,” including factors such as the nature and circumstance of the offense, the
fact of conviction, the quantum of punishment assessed, a defendant’s employment status, his
record of escape, if any, and any propensity for violence. See id. at 229 (quoting Smith, 230 Va.
at 363).
Although Wiggins asserts that the lack of sex offender treatment was an
improperly-considered factor, whether Wiggins received treatment for his condition was directly
relevant to whether he would be a danger to the public if released pending appeal. The circuit
court noted that Wiggins had been on pretrial bond for two years prior to conviction; however, at
the sentencing hearing, the circuit court had access to new information, namely, Wiggins’
psychosexual evaluation results. The record establishes that Wiggins lived just minutes down
the road from A.K.’s residence with her father. The psychosexual evaluation report established
that Wiggins had an average chance of repeating the sexually violent crime of which he was
convicted and that he met the criteria for a pedophilia diagnosis. The report also stated that
Wiggins would benefit from sex offender treatment. In light of the information contained in the
report, the circuit court denied Wiggins’ bail because were he to be released, “he would just
continue to be at liberty in the community without any sex offender treatment or special sex
offender provisions of supervision, etc.” These statements reveal that the circuit court was
actively evaluating the safety of the community as it was required to do. In Dowell, we stated
that “whatever factors are used and considered determinative must bear upon the essential
questions [which are] whether the defendant will appear at future proceedings when required to
do so and whether defendant represents an unreasonable danger to himself and the public.” 6
Va. App. at 229. In this case, whether Wiggins received treatment was relevant to whether he
possibly would reoffend and harm another person. The record establishes that the circuit court
sufficiently evaluated community safety when weighing whether to grant Wiggins
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post-conviction bail, and it properly considered whether Wiggins would be a danger to himself
or the public; therefore, the circuit court did not abuse its discretion by denying post-conviction
bail to a defendant who had sexually assaulted a child three times.
Because we hold that the circuit court did not abuse its discretion in denying bail on the
grounds that Wiggins’ liberty would constitute an unreasonable danger to the public, we need not
review its evaluation of Wiggins’ potential for failure to appear for later proceedings. In sum,
the record does not establish that the circuit court erred by disregarding a relevant factor, by
considering an irrelevant or improper factor, or by committing a clear error in judgment. See
Lawlor, 285 Va. at 213.
III. CONCLUSION
For these reasons, the circuit court did not abuse its discretion when it denied Wiggins
post-conviction bail, and we affirm.
Affirmed.
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