Criminal – Alleged adverse witness impeachment error deemed harmless

Where a man convicted of indecent liberties with a child by a custodian, aggravated sexual battery, rape, object sexual penetration and forcible sodomy argued he was improperly prevented from impeaching a witness with her prior inconsistent statements, but any error was harmless because the impeachment evidence he sought to admit was cumulative, this argument was rejected.

Background                              

Wilmer Ivan Licona Cruz appeals his convictions for indecent liberties with a child by a custodian, aggravated sexual battery, rape, object sexual penetration and forcible sodomy.

Adverse witness

Cruz first argues the trial court’s denial of his adverse-witness motions was error that prevented him from impeaching Nanci Castro-Martinez with her prior inconsistent statements. The proffered evidence with which Cruz was not permitted to impeach Martinez at his 2024 trial consisted of statements Martinez allegedly made to a police officer around the time M.C.M. disclosed Cruz’s abuse in late 2020.

According to defense counsel’s proffer, Martinez told the officer that M.C.M. was “known to exaggerate things and ha[d] lied about other incidents.” As expanded by the prosecutor, Martinez made three additional statements—that M.C.M. “ha[d] never made any sexual accusations in the past,” Martinez “d[id no]t know why the child would make . . . up” the allegations and Martinez herself was “suspicious” of Cruz “because he left the area after being confronted [about] the allegations.”

Cruz called Martinez as a witness expecting her to testify consistently with her prior statements that M.C.M. was known to exaggerate and lie. Instead, she testified injuriously, at least initially, that she believed M.C.M. when the child reported that Cruz had abused her. So defense counsel sought to impeach Martinez with her earlier statements to the police. The trial court denied Cruz’s request to treat Martinez as adverse, thereby preventing him from confronting Martinez directly with those statements.

But even so, while continuing to testify as Cruz’s witness, Martinez largely admitted making the statements with which defense counsel had sought to impeach her—that M.C.M. was “known to exaggerate things and ha[d] lied about other incidents.” And Martinez’s admissions while testifying were supplemented by M.C.M.’s own testimony and prior statements.

M.C.M. recounted in her recorded forensic interview, conducted within days of her initial report about Cruz, that when she first made the accusation of abuse, Martinez called her a “stupid liar” and insisted the abuse had not occurred. M.C.M. reiterated these points when defense counsel cross-examined her at trial. She also elaborated that Castro had contemporaneously prohibited Martinez from entering their home because Martinez believed Cruz rather than M.C.M., a fact that Martinez had also denied.

Based on all of the evidence, defense counsel was able in closing argument to the jury to impeach Martinez to the extent she surprised counsel by testifying that she believed M.C.M.’s allegations against Cruz when M.C.M. first disclosed them. This evidence and counsel’s argument to the jury establish that the trial court’s refusal to declare Martinez adverse or hostile, if error, was harmless because the impeachment evidence Cruz sought to admit ultimately was merely cumulative.

Double Jeopardy

Cruz argues that the trial court erred by denying his motion to strike the charge of object sexual penetration. His argument has two parts. He contends first that the evidence was insufficient to prove a third act of penetration, beyond the penile and oral penetrations that supported the convictions for rape and sodomy. He then suggests that, absent proof that he penetrated the victim’s labia majora with his hand or finger, his conviction and punishment for object sexual penetration violated constitutional protections against double jeopardy.

However Cruz did not develop the sufficiency piece of his second assignment of error either factually or legally in his opening brief. That failure is significant, and as a result he waived this portion of the assignment of error. Based on Cruz’s failure on procedural grounds to establish the absence of a third penetration, he provides no factual basis to support his double jeopardy claim.4

Affirmed.

Cruz v. Commonwealth, Record No. 1982-24-2, March 31, 2026. CAV (unpublished opinion) (Decker). From the Circuit Court of Chesterfield County (Pemberton). Monica Tuck, Assistant Public Defender (Virginia Indigent Defense Commission, on briefs), for appellant. Ryan Beehler, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee. VLW 026-7-126. 14 pp.

Full-Text Opinion

VLW 026-7-126
Virginia Lawyers Weekly