Virginia Lawyers Weekly VA Lawyers Weekly
Where the appellant was convicted of aggravated sexual battery, there was sufficient evidence of his criminal intent. Moreover, the trial court did not abuse its discretion by crediting the complaining witness’s testimony.
Overview
E.Z., the 11-year-old complaining witness, claimed that her grandfather, appellant Diaz, molested her in her bedroom following a family New Year’s Eve celebration. Diaz was convicted after a bench trial and appeals on the basis of insufficient evidence and his granddaughter’s lack of credibility.
Relevant law
“We conduct our review of this case through the lens of these familiar principles, and we begin with the plain wording of the relevant statutes. ‘An accused is guilty of aggravated sexual battery if he or she sexually abuses the complaining witness, and … [t]he complaining witness is less than 13 years of age.’ …
“‘Sexual abuse’ means an act committed with the intent to sexually molest, arouse, or gratify any person, where ‘[t]he accused intentionally touches the complaining witness’s intimate parts or material directly covering such intimate parts,’. … ‘Intimate parts’ means the genitalia, anus, groin, breast, or buttocks of any person.’
“‘Intent is the purpose formed in a person’s mind and may be, and frequently is, shown by the circumstances. It is a state of mind which may be proved by a person’s conduct or by his statements.’ …
“‘Whether the required intent exists is generally a question for the trier of fact.’”
Criminal intent
“In this case, E.Z.’s testimony of the incident, which was believed by the circuit court, sufficiently proved the elements of the crime beyond all reasonable doubt.
“E.Z. testified that she was alone in her bedroom on the night of the offense, when Diaz, her grandfather, entered the room, closed and locked the door, removed his belt, and said that they needed to talk.
“He then sat next to E.Z. and began to rub her upper thighs. When she tried to remove his hand, Diaz touched her breast. He did not stop despite E.Z.’s repeated requests.
“Diaz smelled of alcohol, and E.Z. was eleven years old. These facts do not support Diaz’s assertion that his actions were either ‘misguided playfulness,’ or a ‘drunken threat of corporal punishment.’ He did not do or say anything to suggest he was there to punish E.Z., nor did he act with lighthearted grandfatherly affection.
“Rather, Diaz seized on E.Z.’s seclusion in her bedroom and locked the door to avoid detection. He removed his belt and then rubbed E.Z.’s upper thighs and stroked her intimate parts. These facts, taken in their entirety and with all reasonable inferences drawn from them, support the conclusion that Diaz sexually abused a complaining witness who was less than thirteen years old.
“Thus, a reasonable factfinder could conclude from Diaz’s conduct that he touched E.Z. in order to ‘sexually molest’ her and to arouse or gratify himself. There is no innocent explanation for touching E.Z.’s body in the manner he did.
“‘[T]he Commonwealth need only exclude reasonable hypotheses of innocence that flow from the evidence, not those that spring from the imagination of the defendant.’ …
“In this case, the facts support the circuit court’s rejection of Diaz’s claim that he did not act with the requisite criminal intent.”
Credibility
“Although Diaz acknowledges that the testimony of one witness can support a conviction, he asserts that E.Z.’s testimony was inherently incredible as a matter of law and that her ‘story should not have been believed.’ …
“E.Z. was always consistent about the key details of her abuse. She repeatedly explained that Diaz entered the bedroom, closed and locked the door, removed his belt, and, smelling of alcohol, rubbed her upper thighs and breast. The inconsistencies in E.Z.’s testimony were collateral to the core of her story.
“That she testified at the preliminary hearing that she was on a phone, rather than on her tablet, is immaterial. Likewise, it is also of no moment that she first stated she was sitting on the bed, but later stated she was on the floor or on a pallet on some blankets. …
“E.Z. was always clear as to the order of the abuse, who abused her, and where the abuse happened. … The record supports the circuit court’s credibility determination and, thus, we do not disturb that finding here.”
Affirmed.
Diaz v. Commonwealth, Record No. 0690-21-2, May 17, 2022. CAV (Humphreys) From the Circuit Court of the City of Williamsburg and County of James City (McGinty). Ivan D. Fehrenbach for appellant. Matthew J. Beyrau for appellee. VLW 022-7-145, 10 pp. Unpublished opinion.
