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No Felony Without ‘Serious’ Mental Injury

Deborah Elkins//October 28, 2011

No Felony Without ‘Serious’ Mental Injury

Deborah Elkins//October 28, 2011

Although a 17-year-old girl who was forcibly molested by the two defendants was understandably “agitated” and “upset,” even two years later when she testified at their trial, the commonwealth failed to establish the girl suffered a particularly “grave” mental injury, and the Court of Appeals reverses the two defendants’ convictions for the felony of aggravated sexual battery and remands for entry of convictions on misdemeanor sexual battery.

In requiring the commonwealth to prove “serious bodily injury or mental injury” to the victim, the General Assembly clearly intended that the act of sexual battery by force, threat or intimidation is not, in and of itself, a felony. The factors that elevate the criminal act from the misdemeanor to the felony are the specific age of the victim, serious bodily or mental injury, or the use or threat of use of a dangerous weapon.

Defendants Cousins and Gonzin do not dispute the fact that they sexually abused J.M. against her will by force, threat or intimidation. They merely argue the commonwealth failed to prove one essential element – serious physical or mental injury to the victim.

Clearly, J.M. sustained some degree of bodily and mental injury in this attack. In order to obtain a felony conviction, the commonwealth was required to prove the acts committed by defendants caused any bodily or mental hurt, whatsoever, to J.M. that was “grave in … appearance” or that required “considerable care” or that was “attended with danger.” It is apparent from the statutory context that the General Assembly intended that the phrases a “serious mental injury” and a “serious bodily injury” are analogous to each other.

A thorough review of the record does not reveal sufficient evidence from which a fact finder could reasonably conclude that defendants’ actions resulted in serious bodily or mental injury to J.M. In fact, the commonwealth does not argue on appeal that J.M. suffered any bodily injury from the attack, arguing solely that the evidence at trial demonstrated the victim suffered serious “mental” injury. Indeed, the SANE nurse testified she noticed no bruises or lacerations on J.M. after the attack. Other than some “redness” just below J.M.’s vaginal opening, there is simply no evidence of any bodily injury, much less serious bodily injury, to J.M., as a result of the attack.

The record is equally infirm with respect to evidence from which a fact finder could conclude that J.M. suffered a serious mental injury. Evidence indicated she was “agitated” and “upset” and unable to sleep at the time of the attack. She was unable to speak to her own mother about the incident, other than to ask her mother to make a doctor’s appointment for her, and she spoke to a friend’s mother. At trial, nearly two years later, J.M. became emotionally upset and needed to stop her testimony to compose herself. While these facts clearly support a conclusion that J.M. was understandably very upset by the attack, we note than any victim of sexual battery, even in its misdemeanor form, might necessarily exhibit such symptoms and behaviors as those presented here.

A victim’s mental injury may not be manifestly evident or plainly obvious to an ordinary observer. Possible examples of such injury might include symptoms such as ongoing or recurring nightmares, a phobia, severe depression or other medically recognized psychological disorder, extensive or ongoing counseling, unremitting fear or anxiety, or other difficulties.

Because the legislature deliberately chose to include the modifier “serious” to the required showing of “bodily or mental injury,” and because our obligation is to give that word its plain and ordinary meaning, we hold that in order to prove the requisite element of “serious mental injury” to sustain a felony conviction for aggravated sexual battery, the record must reflect evidence proving a greater injury to the victim’s mental health by way of the frequency, degree, duration or after-effects than that which would attend any sexual battery. Any holding to the contrary would render the lesser offense of sexual battery a nullity.

We reverse defendants’ convictions for aggravated sexual battery and remand with direction to enter judgment for the misdemeanor offense of sexual battery and for resentencing.

Gonzin v. Commonwealth (Humphreys) No. 1441-10-2, Oct. 25, 2011; Appomattox County Cir.Ct. (Shelton) H. Evans Thomas, James E. Ghee for appellants; Virginia B. Theisen, Sr. AAG, for appellee. VLW 011-7-322, 11 pp.

VLW 011-7-322

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