Quyen Vinh Phan Le v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, McCullough and O’Brien
PUBLISHED
Argued by teleconference
QUYEN VINH PHAN LE
OPINION BY
v. Record No. 0850-14-4 JUDGE MARY GRACE O’BRIEN
JULY 28, 2015
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Robert J. Smith, Judge
Lauren Whitley, Senior Assistant Public Defender (Office of the
Public Defender, on briefs), for appellant.
Susan Baumgartner, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
In two separate bench trials, Quyen Vinh Phan Le (“appellant”) was convicted of three
counts of custodial indecent liberties in violation of Code § 18.2-370.1. Appellant was found
guilty of one count of custodial indecent liberties against C.L.K. and two counts of custodial
indecent liberties against C.M.K.1 The trial court acquitted appellant of a third count of custodial
indecent liberties against C.M.K. The cases were consolidated for purposes of appeal.
Appellant asserts three assignments of error. He contends that “[t]he trial court erred in
finding the evidence sufficient under § 18.2-370.1 as the Commonwealth did not prove beyond a
reasonable doubt that [he] was not married to either [C.L.K. or C.M.K.] or that either [C.L.K. or
C.M.K.] were not emancipated.” He also asserts that “[t]he trial court erred in finding that [he]
had sexually abused [C.M.K.] between June 29, 2004 and July 30, 2004 as charged in the
indictment.” Finally, he argues that “[t]he trial court erred in finding sufficient evidence that
1
We will refer to the minor children by their initials.
[he] sexually abused [C.M.K. and C.L.K.] as there was no evidence any force, threat, or
intimidation was used.” We disagree. For the following reasons, we affirm the trial court.
I. BACKGROUND
Appellant was a Tae Kwon Do instructor in Northern Virginia. He coached two sisters,
C.L.K. and C.M.K., who were the victims of these crimes. C.L.K. and C.M.K. trained seven
days a week and competed internationally. C.M.K., who began training with appellant when she
was nine or ten years old, testified that in 2002, when she was fifteen years old, her relationship
with appellant began to change and became sexual. She stated that she and appellant had sexual
intercourse on May 9, 2003, her sixteenth birthday, and continued to have sexual relations
“probably every day.” Appellant was twenty-nine years old at the time.
Sometime between June 29 and July 30, 2004, C.M.K. thought she was pregnant and
appellant took her to Planned Parenthood for a pregnancy test. When the test returned negative,
appellant bought C.M.K. birth control pills and had the bills sent to his studio. The sexual
relationship continued while C.M.K. was seventeen years old.
In January 2005, C.M.K. began to date someone else with the hope that appellant “would
let [her] go.” She continued to attend appellant’s Tae Kwon Do school and when appellant
discovered that she was seeing someone else, he required that she perform oral sex on him as a
“kind of punishment.” He ultimately dismissed her from his studio in June 2006. C.M.K.
testified that she was relieved when that happened.
Appellant presented evidence that he was close to C.M.K. and C.L.K.’s family. Their
mother was his office manager. She had a key to the studio and was often at the studio when her
daughters were there. Appellant elicited testimony from C.M.K. and C.L.K.’s younger sister,
who identified a journal entry from January 2005, in which she wrote that if appellant and
C.M.K. “don’t get married, I’m going to be pissed.”
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At the close of the Commonwealth’s case, appellant made a motion to strike. He argued
that the evidence was insufficient as a matter of law to establish that he committed the crimes
and that the evidence was insufficient to establish that one of the offenses occurred during the
time frame alleged in the indictment. Appellant also argued at his motion to strike that sexual
abuse required non-consensual conduct, which the Commonwealth failed to prove. The trial
court overruled the motion to strike. Appellant renewed the motion on the same grounds at the
close of the evidence. Once again, the trial court overruled the motion to strike and convicted
appellant of the offenses occurring in May of 2003 and July of 2004. The trial court acquitted
appellant of the charge alleging an offense which occurred in January of 2005.
In the other trial, for offenses against C.L.K., she testified that she was born in 1991 and
began training with appellant at age six. With appellant’s coaching, C.L.K. progressed and
competed internationally. She was taught to respect appellant as a “Master” and follow his
commands.
When C.L.K. was sixteen, appellant began a physical relationship with her, which started
by him “groping” her breasts and private areas. He told her that they needed a “strong bond” to
allow her to continue to achieve her goals. C.L.K. testified that she submitted to appellant’s
advances because she was afraid that otherwise she would lose her opportunity to train and
compete on a national level.
In 2008, when C.L.K. was seventeen, she and appellant had sex for the first time. C.L.K.
testified that she and appellant had sex “countless times” during the fall of 2008. Appellant’s
computer contained nude pictures of C.L.K. taken May 9, 2008. In 2009, C.L.K. ended the
relationship and appellant terminated her from his Tae Kwon Do school. C.L.K. testified that
she begged appellant to accept her back into the school, but he demanded sexual acts in
exchange.
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Appellant testified that he began having sex with C.L.K. “long after she was eighteen”
and that their relationship lasted merely a few months. He indicated that he had surgery in July
2008, and was physically unable to have sexual intercourse for the next three or four months.
After considering the evidence, the trial court found appellant guilty of custodial indecent
liberties against C.L.K. occurring between September and November of 2008.
II. ANALYSIS
A. Marriage and Emancipation
In appellant’s first assignment of error, he contends that the trial court erred in finding the
evidence sufficient to convict him because the Commonwealth did not prove that he was not
married to the victims and that the victims were not emancipated. He argues that lack of
marriage and emancipation are elements of the crimes.
The offenses against C.M.K. occurred in 2004, when the statute read as follows:
Any person eighteen years of age or older who maintains a
custodial or supervisory relationship over a child under the age of
eighteen . . . or who stands in loco parentis with respect to such
child and is not legally married to such child, and who, with
lascivious intent, knowingly and intentionally [commits various
acts] . . . shall be guilty of a Class 6 felony.
Code § 18.2-370.1 (2001). The crimes against C.L.K. occurred in 2008, after the statute was
amended. The statute in effect in 2008 states:
Any person 18 years of age or older who, except as provided in
§ 18.2-370, maintains a custodial or supervisory relationship over a
child under the age of 18 and is not legally married to such child
and such child is not emancipated who, with lascivious intent,
knowingly and intentionally [commits various acts] . . . shall be
guilty of a Class 6 felony.
Code § 18.2-370.1. Therefore, the 2001 version of the statute applied in the case in which
C.M.K. was the victim and the 2008 version applied in the case in which C.L.K. was the victim.
In both versions of the statute, however, proof that the parties were not married is an element of
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the offense. The statute as amended in 2008 also requires the Commonwealth to prove that the
minor was not emancipated at the time of the offense.
The Commonwealth contends that appellant never raised this issue in either trial and
therefore, pursuant to Rule 5A:18, it is waived and cannot be considered on appeal. Appellant
concedes that he did not raise the issue of the lack of evidence regarding marriage or
emancipation during his motions to strike or closing argument at either trial, but nevertheless
contends that his argument should be considered based on the ends of justice exception to Rule
5A:18.
Rule 5A:18 states as follows:
No ruling of the trial court . . . will be considered as a basis for
reversal unless an objection was stated with reasonable certainty at
the time of the ruling, except for good cause shown or to enable the
Court of Appeals to attain the ends of justice. A mere statement
that the judgment or award is contrary to the law and the evidence
is not sufficient to preserve the issue for appellate review.
We have held that “[a]s a precondition to appellate review, Rule 5A:18 requires a
contemporaneous objection in the trial court to preserve the issue on appeal.” Thomas v.
Commonwealth, 44 Va. App. 741, 750, 607 S.E.2d 738, 742, adopted upon reh’g en banc, 45
Va. App. 811, 613 S.E.2d 870 (2005). “The primary purpose of requiring timely and specific
objections is to afford the trial judge a fair opportunity to rule intelligently on the issues
presented, thus avoiding unnecessary appeals and reversals.” Rodriguez v. Commonwealth, 18
Va. App. 277, 284, 443 S.E.2d 419, 424 (1994). “‘A specific, contemporaneous objection also
provides the opposing party an opportunity to address an issue at a time when the course of the
proceedings may be altered in response to the problem presented.’” Murillo-Rodriguez v.
Commonwealth, 279 Va. 64, 79, 688 S.E.2d 199, 207 (2010) (quoting Shelton v.
Commonwealth, 274 Va. 121, 126, 645 S.E.2d 914, 916 (2007)). Accordingly, “[t]he Court of
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Appeals will not consider an argument on appeal which was not presented to the trial court.”
Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998).
For us to apply the ends of justice exception to the rule as appellant requests, this Court
must first determine, from reviewing the record, whether a miscarriage of justice has occurred.
“In order to avail oneself of the exception, a defendant must affirmatively show that a
miscarriage of justice has occurred, not that a miscarriage might have occurred.” Redman v.
Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997).
The law regarding the issue of invoking the ends of justice exception is well-settled:
In order to show that a miscarriage of justice has occurred,
an appellant must demonstrate more than that the Commonwealth
failed to prove an element of the offense. We will not invoke the
exception if the record suggests that the Commonwealth merely
inadvertently or unknowingly failed to adduce adequate proof of
an element of the offense. In order to show that a miscarriage of
justice has occurred, thereby invoking the ends of justice
exception, the appellant must demonstrate that he or she was
convicted for conduct that was not a criminal offense or the record
must affirmatively prove that an element of the offense did not
occur.
Id. at 221-22, 487 S.E.2d 272-73; see also Flanagan v. Commonwealth, 58 Va. App. 681, 695,
714 S.E.2d 212, 218 (2011). Accordingly, for this Court to consider the merits of appellant’s
assignment of error, he must show that either the conduct for which he was convicted is not a
criminal offense or that the record affirmatively establishes that an element of the offense did not
occur. Merely claiming that the Commonwealth failed to prove an element of the offense will
not constitute a miscarriage of justice.
In Redman, the appellant argued for the first time on appeal that the Commonwealth
failed to prove two elements of the crime for which he was convicted. Redman, 25 Va. App. at
217, 487 S.E.2d at 271. We declined to apply the ends of justice exception to Rule 5A:18
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despite the fact that the Commonwealth clearly did not prove beyond a reasonable doubt two of
the elements of the offense. Id. at 223, 487 S.E.2d at 273. We held:
The Commonwealth’s failure to present sufficient evidence to
prove these two elements demonstrates only that a miscarriage of
justice may have occurred, not that a miscarriage of justice did
occur. Had the defendant made a timely motion to strike the
evidence, setting forth the specific grounds therefor, the trial court
would have had the opportunity to address the issue by permitting
the Commonwealth to reopen and correct the omission, if it be
such, or to strike the evidence for lack of proof of a material
element.
Id.
In the case before us, appellant contends that “because there was no evidence introduced
regarding the elements of marital status or emancipation, therefore the record shows these
elements did not occur.” This argument ignores the distinction between lack of proof of an
element and affirmative proof that the element did not occur. Arguing that the record is devoid
of evidence of an element does not equate with affirmative proof that an element did not occur.2
Appellant also argues that the Commonwealth’s failure to introduce evidence in support
of an element of the crime violates the Due Process Clause of the Fourteenth Amendment of the
United States Constitution. However, we have repeatedly held that even constitutional claims
2
Not only was there no evidence adduced which would support the proposition that the
victims were married to appellant or emancipated, there was significant circumstantial evidence
which indicated that the complaining witnesses were not married to appellant or emancipated. In
C.M.K.’s case, which required proof that the parties were not married, C.M.K. testified that
when the sexual activity began she was sixteen, lived at home with her parents, and she and
appellant were “basically . . . like boyfriend-girlfriend.” Her younger sister identified a journal
entry she wrote during this time, which said she “was going to be pissed” if appellant and
C.M.K. did not get married. This implies that they were not currently married.
In the case involving C.L.K., the Commonwealth was required to prove both that C.L.K.
was not emancipated and that she was not married to appellant. However, there was
circumstantial evidence of these elements. C.L.K. testified that she and appellant “were never
upfront” about their relationship, there was no evidence that they lived together, and her mother
would drive her to appellant’s house.
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can be barred by Rule 5A:18. See Ohree, 26 Va. App. at 308, 494 S.E.2d at 488; Deal v.
Commonwealth, 15 Va. App. 157, 161, 421 S.E.2d 897, 900 (1992).
In summary, the Commonwealth was required to prove that appellant was not married to
either of the juveniles. The Commonwealth was also required to prove that C.L.K. was not
emancipated. However, lack of proof is not affirmative evidence to the contrary, which would
warrant exercising the “ends of justice” exception to Rule 5A:18. Therefore, we decline to
address the assignment of error and determine that it was waived.
B. Sufficiency of the Evidence to Prove Sexual Abuse
Appellant’s other assignments of error involve sufficiency of the evidence and issues of
statutory construction. “When reviewing the sufficiency of the evidence to support a conviction,
the Court will affirm the judgment unless the judgment is plainly wrong or without evidence to
support it.” Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008). On
appeal, “‘we review the evidence in the light most favorable to the Commonwealth, granting to it
all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth, 26 Va. App. 1,
11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App. 438, 443, 358
S.E.2d 415, 418 (1987)). To the extent an assignment of error involves statutory construction,
we review these issues de novo. Burns v. Commonwealth, 279 Va. 243, 250, 688 S.E.2d 263,
266 (2010); Farrakhan v. Commonwealth, 273 Va. 177, 180, 639 S.E.2d 227, 229 (2007).
Appellant contends the evidence was insufficient as a matter of law for the trial court to
find that he sexually abused C.M.K. during the June 29, 2004 to July 30, 2004 time frame
alleged in the indictment. Appellant argues that C.M.K.’s testimony at trial was not specific
enough to establish that the sexual abuse occurred during the time period charged in the
indictment. Because this is a challenge to the sufficiency of the evidence, we “must uphold the
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conviction unless it was plainly wrong or lacked evidence to support it.” Blevins v.
Commonwealth, 63 Va. App. 628, 634, 762 S.E.2d 396, 398 (2014).
C.M.K. testified that she had sexual intercourse with appellant for the first time on her
sixteenth birthday. When asked specifically about the time period between June 29, 2004 and
July 30, 2004, she testified that “it was still a sexual relationship,” and stated that she had sexual
relations with appellant “probably every day.” She also related that during the time alleged in
the indictment she thought she was pregnant, so appellant took her to Planned Parenthood for a
pregnancy test and to obtain birth control pills.
The Supreme Court of Virginia has held that proof of sexual intercourse is sufficient to
sustain a conviction under Code § 18.2-370.1. See Nobrega v. Commonwealth, 271 Va. 508,
518, 628 S.E.2d 922, 927 (2006) (“[I]f the evidence established beyond a reasonable doubt that
Nobrega engaged in sexual intercourse with the child, Nobrega’s contention that the evidence
was insufficient to convict him under . . . Code § 18.2-370.1 must fail.”). At trial, C.M.K.
testified that she had “sexual intercourse” with appellant on her sixteenth birthday. While the
date of her sixteenth birthday preceded the time period of the indictment, she specifically
testified that during the time period alleged in the indictment her relationship with appellant was
still sexual, noting that she and appellant were engaging in sexual activity “probably every day.”
There were no inconsistencies or ambiguities in her testimony regarding the sexual nature of her
relationship with appellant. Her testimony supports the conclusion that appellant had sexual
intercourse with her during the time period alleged in the indictment.
Appellant also argues that there was no corroborative evidence of physical contact
between himself and C.M.K. However, “[a]s we have stated, the victim’s testimony alone, if not
inherently incredible, is sufficient to support a conviction . . . .” Id. at 519, 628 S.E.2d at 927.
“We have repeatedly held that corroboration of the prosecutrix in a rape case is not essential and
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that her testimony alone is sufficient to sustain a conviction if it is credible and the guilt of the
accused is believed by the jury beyond a reasonable doubt.” Fogg v. Commonwealth, 208 Va.
541, 546, 159 S.E.2d 616, 620 (1968), rev’d and remanded on other grounds sub nom. Fogg v.
Slayton, 408 U.S. 937 (1972); see also Snyder v. Commonwealth, 220 Va. 792, 796, 263 S.E.2d
55, 57-58 (1980); Poindexter v. Commonwealth, 213 Va. 212, 217, 191 S.E.2d 200, 204 (1972).
Accordingly, the trial court’s finding of guilt was not plainly wrong or without evidence to
support it.
C. Use of Force as an Element of the Offense
In appellant’s final assignment of error, he asserts that the evidence was insufficient in
both cases because the Commonwealth was required to prove that the offenses with which he
was charged were accomplished by the use of force. Appellant was charged with committing
indecent liberties by sexually abusing the victims while he was in a custodial relationship with
them. Code § 18.2-67.10(6) defines sexual abuse as
an act committed with the intent to sexually molest, arouse, or
gratify any person, where:
a. The accused intentionally touches the complaining witness’s
intimate parts or material directly covering such intimate parts;
b. The accused forces the complaining witness to touch the
accused’s, the witness’s own, or another person’s intimate parts or
material directly covering such intimate parts;
c. If the complaining witness is under the age of 13, the accused
causes or assists the complaining witness to touch the accused’s,
the witness’s own, or another person’s intimate parts or material
directly covering such intimate parts; or
d. The accused forces another person to touch the complaining
witness’s intimate parts or material directly covering such intimate
parts.
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The Commonwealth and appellant agree that the relevant portion of the statute is
subsection (a). Nevertheless, appellant argues that because subparts (b) and (d) explicitly require
the use of force, and because subpart (c) establishes constructive force by the element of age,
proof of force was required for a conviction under subsection (a).
When reviewing issues of statutory construction, “courts apply the plain language of a
statute unless the terms are ambiguous.” Boynton v. Kilgore, 271 Va. 220, 227, 623 S.E.2d 922,
926 (2006). “‘[I]f the language is plain, certain and unambiguous, so that no doubt arises from
its own terms as to its meaning, then there is no room for interpretation.’” Lynchburg Div. of
Soc. Servs. v. Cook, 276 Va. 465, 480, 666 S.E.2d 361, 368 (2008) (alteration in original)
(quoting Boynton, 271 Va. at 228 n.10, 623 S.E.2d at 926 n.10).
Appellant concedes that subsection (a) of the definition of sexual abuse “lacks a mention
of any type of force in combination with the touching.” Yet, he urges us to read the element of
force into subsection (a) because subparts (b) and (d) require force and subpart (c) uses the
complaining witness’ age as constructive evidence of force. He cites cases interpreting the
elements of aggravated sexual battery under Code § 18.2-67.3 and sexual battery under Code
§ 18.2-64. In both of those crimes, the Commonwealth must prove that the action was
accomplished by force, threat, or intimidation.
However, in the present case, appellant was charged with violations of Code
§ 18.2-370.1, custodial indecent liberties, not sexual battery or aggravated sexual battery. Force
is not an element of custodial indecent liberties; sexual abuse is. Sexual abuse, however, is not a
crime in and of itself. It is an element of the crime of custodial indecent liberties, just as force is
an element of aggravated sexual battery. Code § 18.2-67.10 defines the various forms of sexual
abuse, some of which involve force, one of which does not.
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“The primary objective of statutory construction is to ascertain and give effect to
legislative intent.” Commonwealth v. Zamani, 256 Va. 391, 395, 507 S.E.2d 608, 609 (1998).
“‘Although penal statutes are to be strictly construed against the Commonwealth, courts are
nevertheless bound by the plain meaning of unambiguous statutory language and may not assign
a construction that amounts to holding that the General Assembly did not mean what it actually
has stated.’” Bowling v. Commonwealth, 51 Va. App. 102, 108, 634 S.E.2d 354, 357 (2007)
(quoting Gunn v. Commonwealth, 272 Va. 580, 587, 637 S.E.2d 324, 327-28 (2006)). “‘[W]hen
the language in a statute is clear and unambiguous, [this Court] appl[ies] the statute according to
its plain language.’” Johnson v. Commonwealth, 53 Va. App. 608, 613, 674 S.E.2d 541, 544
(2009) (second and third alteration in original) (quoting Va. Polytechnic Inst. & State Univ. v.
Interactive Return Serv., 271 Va. 304, 309, 626 S.E.2d 436, 438 (2006)).
The General Assembly could have chosen to include the words “by force” in subsection
(a) of Code § 18.2-67.10(6). It did not. A plain reading of the statute establishes that the
General Assembly did not intend to include a force requirement for this particular subsection.
Accordingly, we will not read such a requirement into the statute. The Commonwealth was only
required to prove that appellant acted intentionally when he “touche[d] the complaining
witness’s intimate parts or material directly covering such intimate parts.” Code
§ 18.2-67.10(6)(a). Therefore, because the Commonwealth was not required to prove use of
force, the trial court did not err in denying appellant’s motion to strike.
III. CONCLUSION
For the foregoing reasons, appellant’s convictions are affirmed.
Affirmed.
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