Antonio Wright v. Commonwealth of Virginia ( 2019 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Malveaux and Senior Judge Frank
Argued at Hampton, Virginia
UNPUBLISHED
ANTONIO WRIGHT
MEMORANDUM OPINION* BY
v. Record No. 1238-18-1 JUDGE ROBERT P. FRANK
SEPTEMBER 17, 2019
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Leslie L. Lilley, Judge
Melissa I. Bray, Senior Assistant Public Defender, for appellant.
Kelsey M. Bulger, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Antonio Wright was convicted in a bench trial of providing false information to the Sex
Offender and Crimes Against Minors Registry and two counts of failing to register as a violent sex
offender. On appeal, he argues that the evidence is insufficient to support his convictions because
“the Commonwealth failed to prove that appellant was previously convicted of a sexually violent
offense.” For the reasons stated, we affirm the judgment of the trial court.
BACKGROUND
“Under familiar principles of appellate review, we will state ‘the evidence in the light
most favorable to the Commonwealth, the prevailing party in the trial court, and will accord the
Commonwealth the benefit of all reasonable inferences fairly deducible from that evidence.’”
Chavez v. Commonwealth, 69 Va. App. 149, 153 (2018) (quoting Sidney v. Commonwealth, 280
Va. 517, 520 (2010)).
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
The facts relevant to this appeal are uncontested. On April 9, 2003, in the Circuit Court
for the City of Norfolk, Wright was convicted of carnal knowledge of a minor, in violation of
Code § 18.2-63, and in an amended sentencing order entered April 28, 2005 was sentenced to
five years of incarceration with three years suspended. As a result of his conviction, Wright was
ordered to register with the Virginia State Police pursuant to Code § 19.2-298.11 within ten days
of his release from confinement. Wright was required to re-register within ten days following
any change of residence. The order also showed Wright’s date of birth as June 17, 1972, making
him thirty years old at the time of his conviction.
On June 13, 2003, Wright completed an SP 236, the “sex offender and crimes against
minors registration form,” provided by the Virginia State Police. The form includes Wright’s
social security number, date of birth, and photograph. It is noted on the form Wright had been
convicted2 of carnal knowledge of a minor, in violation of Code § 18.2-63, and that the victim
was thirteen years old.
Between December 31, 2014, and August 1, 2016, Wright submitted five forms to the
Virginia State Police. On each form, Wright signed his name next to the box labeled “Sexually
Violent Offender.”
Wright failed to re-register in September and October 2016 and failed to report his
change of address on December 27, 2016.
1
Code § 19.2-298.1 was repealed in 2003, and subsequently replaced by Code §§ 9.1-900
et seq.
2
We do not include the evidence to support these charges because Wright does not
contest these convictions, but only challenges the sufficiency of the evidence as to whether he
was a violent sex offender.
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ANALYSIS
On appeal, Wright contends the evidence was insufficient to prove that he was convicted
of a violent sexual offense on April 9, 2003 in Norfolk Circuit Court.
When an appellant challenges the sufficiency of the evidence supporting a conviction,
“the judgment of the trial court shall not be set aside unless it appears from the evidence that
such judgment is plainly wrong or without evidence to support it.” Code § 8.01-680. When
reviewing the sufficiency of the evidence, this Court “must . . . ask whether ‘any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.’” Cheung
v. Commonwealth, 63 Va. App. 1, 8 (2014) (quoting Crowder v. Commonwealth, 41 Va. App.
658, 663 (2003)). “If there is evidence to support the conviction, an appellate court is not
permitted to substitute its own judgment for that of the finder of fact, even if the appellate court
might reach a different conclusion.” Id. (quoting Conrad v. Commonwealth, 31 Va. App. 113,
123 (1999) (en banc)). “This deferential standard of review ‘applies not only to the historical
facts themselves, but [also to] the inferences from those facts.’” Bennett v. Commonwealth, 69
Va. App. 475, 492 (2018) (quoting Crowder, 41 Va. App. at 663 n.2).
Code § 9.1-902(E) defines a “sexually violent offense,” in part, as a violation of
Subsection A of § 18.2-63 where the perpetrator is more than five years older than the victim. A
violation of § 18.2-63(B) is not a sexually violent offense.
Code § 18.2-63 in its present form states, in part:
A. If any person carnally knows, without the use of force, a child
thirteen years of age or older but under fifteen years of age, such
person shall be guilty of a Class 4 felony.
B. If any person carnally knows, without the use of force, a child
thirteen years of age or older but under fifteen years of age who
consents to sexual intercourse and the accused is a minor, and such
consenting child is three years or more the accused’s junior, the
accused shall be guilty of a Class 6 felony. If such consenting
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child is less than three years the accused’s junior, the accused shall
be guilty of a Class 4 misdemeanor.
Wright’s sole argument on appeal is that the conviction order of April 9, 2003 failed to
state that he was convicted under subsection A. Wright correctly states that the order only shows
a conviction under Code § 18.2-63 without indicating whether he was convicted under
subsection A or B. Without such designation, he argues that the Commonwealth failed to prove
a sexually violent offense and thus he could not be found guilty of violating Code § 18.2-472.1.3
Wright’s argument ignores the provisions of Code § 18.2-63 at the time of the original
conviction. That statute contained the exact same language as the present version, except for the
lettered subparagraph.
Prior to July 1, 2007, Code § 18.2-63, in pertinent part, read as follows:
§ 18.2-63. Carnal knowledge of child between thirteen and fifteen
years of age.
If any person carnally knows, without the use of force, a child
thirteen years of age or older but under fifteen years of age, such
person shall be guilty of a Class 4 felony. [now subsection A]
However, if such child is thirteen years of age or older but under
fifteen years of age and consents to sexual intercourse and the
accused is a minor and such consenting child is three years or more
the accussed’s junior, the accused shall be guilty of a Class 6
felony. If such consenting child is less than three years the
accused’s junior, the accused shall be guilty of a Class 4
misdemeanor. [now subsection B]
In calculating whether the child is three years or more a junior of
the accused minor, the actual dates of birth of the child and the
accused, respectively, shall be used.
3
Code § 18.2-472.1 states in part:
B. Any person convicted of a sexually violent offense or murder,
as defined in § 9.1-902, who knowingly fails to register or
reregister, or who knowingly provides materially false information
to the Sex Offender and Crimes Against Minors Registry is guilty
of a Class 6 felony. A second or subsequent conviction for an
offense under this subsection is a Class 5 felony.
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Clearly, since Wright was an adult when the offense occurred, the second paragraph could not
apply. We are left with the first paragraph, which falls under the sexually violent offender
definition.
Wright argues that he could have originally been convicted under what is now subsection
B as part of a plea agreement. This argument is based on pure speculation. Hypotheses of
innocence that must be excluded “are those which flow from the evidence itself, and not from the
imaginations of defense counsel.” Cook v. Commonwealth, 226 Va. 427, 433 (1983).
It should be noted that Wright acknowledged that he was a violent sex offender by
initially registering every ninety days, as required by Code § 18.2-472.1. Between December
2014 and August 2016 he signed five forms with his signature next to the box labeled “Sexually
Violent Offender.”
We conclude that the evidence is sufficient to prove that Wright’s prior conviction
constituted a sexually violent offense and that he was required to register as a sexually violent
offender. The judgment is affirmed.
Affirmed.
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