Child’s incompetency doesn’t bar out-of-court statements

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Even though the young victim was declared incompetent to testify, the trial court correctly admitted her out-of-court statements as evidence.

Statement of the case

“A jury convicted Dilliraj Bista of anal sodomy of a child under the age of 13, in violation of Code § 18.2-67.1, and aggravated sexual battery, in violation of Code § 18.2-67.3.

“On appeal, a three-judge panel of this Court heard Bista’s challenges to the admission of the child’s out-of-court statements under Code § 19.2-268.3 and to the admission of a video depicting the child’s forensic interview, which he argued violated his right to confrontation under the Sixth Amendment of the United States Constitution.

“The panel affirmed the convictions with one judge dissenting as to the Confrontation Clause issue. Bista v. Commonwealth, 76 Va. App. 184 (2022).

“This Court granted Bista’s petition for rehearing en banc and agreed to rehear the following assignment of error:

“‘The trial court erred by allowing the out[-]of[-]court statements of [R.P.] to be admitted as evidence pursuant to … Code § 19.2-268.3 after she had been declared incompetent to testify at trial. Even if her out[-]of[-]court statements satisfied the requirements of … Code § 19.2-268.3, the trial court further erred in admitting her statement to the forensic interviewer as it violated … Bista’s confrontation rights under the [Sixth] Amendment.’”

We conclude that “[t]he court did not err by admitting R.P.’s out-of-court statements under Code § 19.2-268.3 after she had been declared incompetent to testify at trial, and the admission of R.P.’s forensic interview video did not violate Bista’s Confrontation Clause right. Therefore, we affirm the court’s judgment.”

Background

In August 2018, R.P. was 11 years old and living with Rita and Hem, her parents. She has “autism spectrum disorder, which impairs her socialization, memory, and ability to learn and communicate.” Hem and Rita had a close relationship with appellant Bista and his family.

Bista had been staying at R.P.’s home while his wife visited Nepal. Rita came upon Bista kneeling down behind R.P., whose pants were drawn below her knees.

Rita “took R.P. upstairs to question her with Hem. R.P. told her parents that Bista had ‘licked [her] on the front and back’ and ‘put it on the front and tried to put it on the back.’” Rita removed R.P.’s clothes and sealed them in a plastic grocery bag.

Bista denied wrongdoing but later admitted to Rita and Hem “that he had ‘licked [her] private part.’ R.P.’s parents did not report the incident to police, fearing that disclosure would harm their family’s prestige in the Nepali community. Bista moved to Hawaii the following week.”

About six months later, R.P. told her special education teacher about the assault. The teacher contacted R.P.’s parents and Child Protective Services. Detective Gadell investigated and had Bonilla conduct a recorded forensic interview, during which R.P. described what Bista did.

Bista was extradited from Hawaii. “Subsequent DNA testing established that Bista could not be eliminated as a contributor to a DNA mixture discovered in the “interior crotch” of R.P.’s underpants.” …

Bista was charged with sodomy of a child under the age of thirteen years, aggravated sexual battery and rape.

During pretrial proceedings, the court determined R.P. was not competent to testify. The court also ruled that her out-of-court statements were trustworthy.

A jury convicted Bista on the sodomy and sexual battery counts. He appealed.

Statutory factors

“Code § 19.2-268.3 provides a hearsay exception for out-of-court statements of child victims of specified crimes, provided that

“(1) ‘the time, content, and totality of circumstances surrounding the statement[s] provide sufficient indicia of reliability’ to render the statements ‘inherently trustworthy,’ and

“(2) the child testifies or is declared unavailable to testify. …

“To determine whether the statements are ‘inherently trustworthy,’ a court ‘may consider’ six nonexclusive factors. … If the child is declared unavailable to testify, the statute requires “corroborative evidence of the act relating to an alleged offense against children.”

Argument on appeal

“Bista contends that R.P.’s out-of-court statements concerning the sexual abuse were inadmissible under Code § 19.2-268.3 because ‘[o]nce [R.P.] was declared incompetent to testify, her statements no longer met the requirement of being inherently trustworthy.’

“He also argues the court erred in finding corroborative evidence of the crimes, as required when a child declarant is unavailable to testify.”

‘Inherently trustworthy’

“The record supports the court’s conclusion that R.P.’s statements to her parents, teacher, and Bonilla were inherently trustworthy. The evidence established R.P.’s ‘personal knowledge of the event’ and reflected detailed and largely consistent accounts of the assault to her parents, teacher, and Bonilla. …

“Rita and Hem consistently testified that, immediately after the assault, R.P. reported that Bista had touched and ‘licked’ her ‘private parts.’

“Consistent with that disclosure, R.P. told her teacher, Rothe, that she had been raped by a family friend the previous August. The video of R.P.’s forensic interview demonstrated that R.P. provided a detailed account of the assault consistent with her previous reports.

“Furthermore, despite some discrepancies, R.P.’s testimony ‘did not waiver’ with respect to the essential acts constituting the offenses.

“The court also had the opportunity to watch and listen to Rita, Hem, and Rothe testify concerning R.P.’s statements and concluded that they were credible. …

“Although R.P. engaged in ‘attention-seeking’ behavior at school, no evidence suggested she did so at home or in other settings. Nor did any evidence indicate that she harbored animus toward Bista before the incident.

“Furthermore, Hem testified that he did not ‘coach’ R.P.’s testimony, Bista was a close family friend, and Hem had refrained from contacting police due to cultural norms. From that evidence, the court reasonably concluded that neither R.P. nor her family had a motive to ‘falsify or distort’ the offenses. …

“The court also found no evidence that R.P. was ‘suffering pain or distress’ during the disclosures. …

“Finally, the record contained ‘extrinsic evidence’ establishing Bista’s ‘opportunity to commit’ the assault. … Rita found Bista kneeling on the floor behind R.P., who was on her hands and knees and partially undressed.

“Additionally, Bista’s DNA was inside R.P.’s underpants, and he admitted to both parents that he had ‘licked’ R.P.’s ‘private part.’

“Viewing the evidence under our deferential standard of review, we cannot conclude that the court’s findings were plainly wrong or without evidentiary support.”

Corroboration

“The record contains corroborative evidence of Bista’s crimes. Forensic testing established that Bista’s DNA was found in the interior crotch of R.P.’s underpants.

“Rita also testified that she observed Bista kneeling behind R.P., whose shorts were drawn below her knees. Finally, Bista confessed that he ‘licked’ R.P.’s ‘private part.’

“Collectively, that corroborative evidence satisfies Code § 19.2-268.3(B)(2)(b).”

Confrontation

“[A]t the preliminary hearing, R.P. testified in open court, under oath, and Bista both had the opportunity to, and did, cross-examine her without objection on a multitude of issues, including inconsistent statements she had made during the forensic interview.

“Although he did not introduce or expressly refer to the forensic interview, Bista had received a copy of the video three weeks before the preliminary hearing and could have cross-examined R.P. even more directly regarding any inconsistent statements. …

“The fact that Bista chose not to pursue or expand upon his questioning does not mean his constitutional rights were violated. …

“Accordingly, we affirm the court’s admission of R.P.’s forensic interview statements.”

Ruling

“The court did not err by admitting R.P.’s out-of-court statements under Code § 19.2-268.3 after she had been declared incompetent to testify at trial, and the admission of R.P.’s forensic interview video did not violate Bista’s Confrontation Clause right. Therefore, we affirm the court’s judgment.”

Affirmed.

Bista v. Commonwealth, Record No. 0904-21-4, Sept. 12, 2023. CAV (published opinion) (O’Brien) (Humphreys, concurring, joined by AtLee) (Lorish, J., dissenting, joined by Ortiz, Causey, Friedman, Chaney, Raphael, and Callins, JJ.) Upon a Rehearing En Banc from the Circuit Court of Fairfax County. (Shannon) Dawn M. Butorac for appellant. Katherine Quinlan Adelfio, Jason S. Miyares for appellee. VLW 023-7-347, 104 pp.