Closed-circuit testimony proper in sex crimes case

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Where appellant was convicted of aggravated sexual battery and four counts of taking indecent liberties with a child, the trial was not flawed when the court allowed the victim to testify via closed circuit television.

However, one of the indecent liberties convictions is reversed because the relevant statute requires a proposal to touch a child’s genitals, and there was no evidence before the jury of such proposal.

Closed-circuit testimony

“A trial court may allow ‘testimony of the child be taken by closed-circuit television … if it finds that the child is unavailable to testify in open court in the presence of the defendant, the jury, the judge, and the public’ because of ‘[t]he substantial likelihood, based upon expert testimony, that the child will suffer severe emotional trauma from so testifying.’ Code § 18.2-67.9(2).

“That statute allows the Commonwealth to ‘protect[] child witnesses from the trauma of testifying’ in a ‘face-to-face confrontation with the defendant’ upon ‘an adequate showing of necessity.’ …

“Addair [a childhood trauma expert] had met with K.M. weekly for approximately seven months. During those sessions, K.M. expressed fear of the prospect of seeing [appellant] Mayberry again and whenever Addair attempted to discuss Mayberry or court, K.M. ‘shut down’ and cried.

“Based on those circumstances and her extensive clinical experience, Addair opined that if compelled to testify in front of [appellant] Mayberry, K.M.’s ‘PTSD would get significantly worse’ because ‘seeing [Mayberry] in person would’ cause K.M. to become ‘terrified’ and reexperience her trauma. (Emphasis added). …

“Accordingly, we cannot conclude from the record that the trial court erred by finding a substantial likelihood, based on expert testimony, that K.M. would suffer severe emotional trauma if forced to testify against Mayberry in open court.”

Sexual battery

“Mayberry next challenges the sufficiency of the evidence to sustain the conviction for aggravated sexual battery and two of the convictions for taking indecent liberties with a minor. …

“Mayberry first argues that the evidence failed to prove he committed aggravated sexual battery because K.M.’s testimony was ‘inherently incredible’ as a matter of law. Mayberry, however, did not preserve that argument for appellate review. …

“In his motion to strike at the conclusion of the Commonwealth’s case and his renewed motion to strike, Mayberry did not challenge the sufficiency of the evidence to prove the aggravated sexual battery charge. In addition, he did not argue specifically that K.M.’s testimony was inherently incredible as a matter of law during either motion, nor did he move to set aside the jury’s verdict on that basis.

“Thus, the record demonstrates that Mayberry did not present to the trial court the argument he now raises on appeal. Accordingly, the argument is waived.”

Indecent liberties

“Mayberry contends that the evidence was insufficient to sustain his conviction under Code § 18.2-370(A)(3) because it failed to prove that he proposed to K.M. that he feel or fondle her genitals. He concedes that the evidence established that he ‘felt or fondled’ K.M. but argues that ‘actual touching, or sexual battery, is already criminalized’ under Code § 18.2-67.3.

“Code § 18.2-370(A)(3), according to Mayberry, proscribes the proposal to touch a child’s genitals, not the touching itself. Therefore, because there was no evidence that ‘he proposed to touch’ K.M., Mayberry asserts that his conviction must be reversed. We agree. …

“[B]y its plain and unambiguous terms, Code § 18.2-370(A)(3) distinguishes between the completed act of ‘feeling or fondling’ a child and ‘proposing’ to do so. …

“[B]oth the Supreme Court of Virginia and the General Assembly have recognized that sexually touching a child’s genitals and proposing to do so are distinct crimes. …

“The record does not contain any evidence about the touching other than K.M.’s testimony that Mayberry touched her by circling his fingers around the outside of her vagina. Thus, the evidence before the jury did not establish that Mayberry proposed – or declared his plan or intent – to touch K.M.’s genitals.

“Rather, the evidence established that he sexually touched K.M.’s genitals without making any statement concerning his desire or intent. Although that evidence permitted the jury to find that Mayberry committed aggravated sexual battery, it did not establish the indecent liberties offense charged in case number CR19000304-00.

‘Lascivious intent’

“Finally, Mayberry contends that the evidence failed to prove that he violated Code § 18.2-370(A)(5) by inviting K.M. into the car with ‘lascivious intent’ to expose himself or ‘inappropriately touch[ ]’ her. Mayberry reasons that ‘the evidence equally supports the theory’ that he invited K.M. into the car for the ‘wholly innocent reason’ of cleaning the vehicle ‘but then subsequently decided to expose himself or inappropriately touch her.’ …

“Although Mayberry told K.M. that she would ‘be cleaning out’ the car with him while Angel [her mother] slept, K.M. testified that the car was not ‘messy’ and Mayberry was not cleaning it when she returned. He was urinating behind the truck and invited K.M. to touch his exposed penis before they entered the car.

“After entering the car, Mayberry did not do anything to clean it. Instead, he immediately masturbated in front of K.M. while watching erotic videos on his phone; he also showed her ‘inappropriate’ DVDs, which he said they would have to watch together when her mother was not home.

“Collectively, that evidence supports the jury’s reasonable conclusion that Mayberry was ‘eager for sexual indulgence’ when he directed K.M. into the car. …

“Finally, Mayberry’s confessions provided the jury with compelling evidence of his guilt. … After initially denying any wrongdoing, Mayberry confessed to Investigator Tanner that he had let K.M. touch his penis and asked whether she had wanted to do so.

“Mayberry also admitted that he had ‘made a bad decision’ and wrote two letters to K.M. apologizing for the incident.”

Affirmed in part and reversed in part.

Mayberry v. Commonwealth, Record No. 1380-21-2, Oct. 18, 2022. CAV (Haley Jr.). From the Circuit Court of Appomattox County (Nelson) Jordan B. Davies for appellant. Lucille M. Wall, Jason S. Miyares for appellee. VLW 022-7-460, 19 pp.