Virginia Lawyers Weekly//October 31, 2022
Virginia Lawyers Weekly//October 31, 2022//
Where the commonwealth moved to have a facility dog accompany the complaining witness when she testifies at a sex crimes trial, the motion is granted because the dog “qualifies as a facility dog,” the dog’s “use will aid the witness in providing her testimony” and the dog “will neither interfere with nor distract from the testimony or the proceedings.”
At issue is the commonwealth’s motion to have Rylynn, a facility dog, aid S.G., the complaining witness, while she testifies in court against appellant Vargas. Vargas has been charged with abduction with intent to defile and two counts of aggravated sexual battery. Vargas opposes the motion.
“The indictment stems from instances of alleged abuse during sleepovers at Vargas’s home that S.G. attended as a child with Vargas’s stepdaughter, S.V.”
When S.G., was 17 years old, she and her mother “met with Detective Kim … to discuss a sexual assault complaint.” S.G. was in therapy at the time. S,G. alleges that a few days before the scheduled forensic interview, she “successfully accessed the full memory of being sexually assaulted by the stepfather of a close friend, viz, Vargas, in his home in Fairfax County between 2014 and 2015.
Carrico, a social worker and Rylynn’s handler, conducted the forensic interview. S.G. described how, over the last year, she was able to recover a “full memory” of the assault.
“Carrico testified that when S.G. first came to the unit to be interviewed she was wearing a hoodie, her arms would be folded across her chest, she would not make eye contact, and answered questions with one word answers.
“After introducing Rylynn, however, S.G. removed her sweatshirt and began engaging with Rylynn. After engaging with Rylynn S.G. eventually engaged with the team and began answering questions.”
Virginia Code §18.2-67.9:1(B) governs the use of facility dogs in criminal proceedings. Under subsection (C), “‘The court may enter an order authorizing a dog to accompany a witness while testifying at a hearing in accordance with subsection B if the court finds by a preponderance of the evidence that:
“‘1.The dog to be used qualifies as a certified facility dog;
“‘2.The use of a certified facility dog will aid the witness in providing his testimony; and
“‘3.The presence and use of the certified facility dog will not interfere with or distract from the testimony or proceedings.’”
Under subsection (D), “‘The party seeking such order shall apply for the order at least 14 days before the preliminary hearing, trial date, or other hearing to which the order is to apply.
Vargas argues he did not receive the required 14-day notice before the preliminary hearing, at which Rylynn was present.
“Virginia Code § 18.2-67.9:1 does not contain any notice requirement other than the requirement in subsection D that the party requesting the facility dog shall make such request at least fourteen days ‘before the preliminary hearing, trial date, or other hearing to which the order is to apply.’ … (emphasis added).
“The motion to use the dog at the trial (which is this motion) clearly is neither the preliminary hearing nor the trial, nor is it the hearing to which the order is to apply. The dog was present at the hearing only as demonstrative evidence in order for the Court to observe the dog.
“In this situation the hearing to which the order is to apply is the trial. Clearly the Commonwealth has given notice more than fourteen days before trial.
“Rylynn was not used at the hearing to assist any witness. If she had been, then subsection D would apply, and the Commonwealth would have been required to give notice at least fourteen days in advance to apply for an order to use the dog at the motion hearing. …
“According to the Commonwealth, Rylynn will assist S.G. in testifying about a traumatic experience of sexual abuse in a room full of strangers. Rylynn will provide comfort while S.G. recalls extremely traumatic information in front of the Defendant who allegedly violated her. As the Commonwealth states, the combination of S.G.’s age [now 18], mental health history, and trauma certainly show that she will benefit from Rylynn’s calming presence as she confronts both the Defendant and the jury while recalling such horrific events.”
“Cases from across the country overwhelmingly conclude that the use of a facility dog does not deprive the defendant of the Constitutional right to confront the witness against him, that the use of a facility dog does not unduly influence the jurors, and the use of a facility dog falls within the inherent authority of a trial court of manage the proceedings before it. …
“I find that the Commonwealth has established that Rylynn qualifies as a facility dog, that her use will aid the witness in providing her testimony, and that the use of Rylynn will neither interfere with nor distract from the testimony or the proceedings.”
Commonwealth v. Vargas, Record No. FE-2021-632, Aug.19, 2022. 19th Circuit Court (Smith). Katherine K. Ballou for the commonwealth. Melissa Hasanbelliu for defendant. VLW 022-8-061, 18 pp.