Benjamin Perry Gordon, III v. Commonwealth ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Annunziata and Overton
Argued at Norfolk, Virginia
BENJAMIN PERRY GORDON, III
MEMORANDUM OPINION * BY
v. Record No. 1087-96-1 JUDGE ROSEMARIE ANNUNZIATA
MAY 13, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Thomas S. Shadrick, Judge
Lynndolyn T. Mitchell, Assistant Public
Defender, for appellant.
Michael T. Judge, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Following a jury trial, appellant, Benjamin Perry Gordon,
III, was convicted of three counts of aggravated sexual battery
in violation of Code § 18.2-67.3. On appeal, he contends his
constitutional right to speedy trial was violated and that the
evidence was insufficient to support his convictions. We
disagree and affirm.
I. CONSTITUTIONAL RIGHT TO SPEEDY TRIAL
Three arrest warrants were issued in September 1992,
charging that appellant committed acts of aggravated sexual
battery against the four-year-old daughter of R.J.N. and a
five-year-old neighbor boy. The crimes allegedly occurred during
the period February 1, 1990 through April 30, 1990, at R.J.N.'s
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
home in Virginia Beach, in which appellant then resided.
When the warrants were issued, appellant was incarcerated in
Ohio awaiting trial; following trial appellant was sentenced to
serve one hundred thirty-five years. The Virginia warrants
remained unexecuted until August 1995, when the Commonwealth
first sought to extradite appellant. Only then did appellant
learn of the Virginia warrants; he waived extradition and was
returned to Virginia.
In September 1995, appellant filed a motion in the juvenile
and domestic relations district court, praying that the warrants
be dismissed on the ground that the delay in their execution
violated his due process rights under the Fifth and Fourteenth
Amendments of the United States Constitution. The motion was
denied. Appellant was indicted for the felony offenses in
November 1995, and he reasserted his constitutional claim in a
motion to dismiss filed in circuit court in December 1995. In a
supplementing memorandum, appellant argued that the delay had
violated his Sixth Amendment right to speedy trial.
At the hearing on that motion, appellant argued that the
delay had impinged his ability to prepare his defense.
Specifically, appellant testified he had been unable to locate
three material witnesses. He asserted that Jeanette Thomas would
testify that appellant lived with her during the relevant time
period, February 1990 through April 1990, and that Kurt and
Brenda Bridges could testify that R.J.N. sought revenge against
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appellant for money he had borrowed from her. Appellant further
asserted he had difficulty remembering events in 1990. The trial
court denied the motion to dismiss, stating that, "proving only a
possibility of prejudice is not sufficient to support a speedy
trial violation; and I think that's all we have here."
Appellant's predominant contention on appeal is that the
trial court erred in requiring him to prove actual prejudice to
establish a Sixth Amendment speedy trial violation. See Doggett
v. United States, 505 U.S. 647, 654-58 (1992) (addressing proof
required to establish prejudice prong of Barker v. Wingo, 407
U.S. 514 (1972), balancing test). Appellant's reliance on Sixth
Amendment jurisprudence to support his contention overlooks an
important aspect of this case: appellant's complaint does not
fall within the Sixth Amendment right to speedy trial. See
United States v. Marion, 404 U.S. 307, 320 (1971); United States
v. Lovasco, 431 U.S. 783, 788-89 (1977); Holiday v. Commonwealth,
3 Va. App. 612, 616, 352 S.E.2d 362, 364 (1989); Fowlkes v.
Commonwealth, 218 Va. 763, 766, 240 S.E.2d 662, 664 (1978).
Appellant argues that the delay resulting from the
Commonwealth's failure to execute the arrest warrants violated
his right to speedy trial under the Sixth Amendment. However,
"[a]s far as the Speedy Trial Clause of the Sixth Amendment is
concerned, [preindictment] delay is wholly irrelevant . . . only
`a formal indictment or information or else the actual restraints
imposed by arrest and holding to answer a criminal charge . . .
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engage the particular protections' of that provision." Lovasco,
431 U.S. at 788-89. See also Fowlkes, 218 Va. at 766, 240
S.E.2d at 664 ("a suspect becomes `accused' within the intendment
of the Sixth Amendment when he is placed under arrest"); Holiday,
3 Va. App. at 616, 352 S.E.2d at 364 (same). We find that none
of the purposes of the speedy trial guarantee would be met by
ordering the dismissal of the indictments against appellant
simply because the Commonwealth delayed the execution of arrest
warrants against appellant who, serving time for multiple life
sentences in a sister state, knew nothing of the warrants until
they were executed. See Marion, 404 U.S. at 320. In short,
appellant was not "accused" within the meaning of the Sixth
Amendment until the warrants were executed.
Appellant's proper avenue for relief from the pre-arrest
delay is the due process claim he alleged in his motion to
dismiss but failed to pursue either at trial or on appeal. See
Lovasco, 431 U.S. at 789; Hall v. Commonwealth, 8 Va. App. 526,
529, 383 S.E.2d 18, 20 (1989). Assuming without deciding that
appellant's due process claim is not procedurally defaulted, that
claim is without merit because it is clear appellant suffered no
actual prejudice from the delay. See id. Appellant first
asserted that his witness, Thomas, could not be found. He stated
that Thomas would testify that he lived with her during the
relevant time period. To the contrary, Thomas was found and
testified that appellant did not live with her at that time.
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Moreover, appellant admitted that he lived with R.J.N. at the
time the crimes were alleged to have been committed. Appellant
also acknowledged that he had made no effort to locate the
Bridges, nor had he provided his attorney with any pertinent
information to facilitate locating them. Furthermore, even
assuming to be true appellant's proffer that the Bridges would
testify that R.J.N. sought revenge against appellant because he
owed her money, such testimony is immaterial to appellant's
defense: R.J.N. was not the complaining witness, nor was she an
eyewitness to the crimes alleged. Indeed, even assuming such
testimony would fully discredit R.J.N.'s testimony at trial, that
testimony was not an integral or even important part of the
Commonwealth's case. Instead, it merely corroborated relatively
insignificant aspects of the testimony of the two complaining
witnesses.
II. SUFFICIENCY
When considering the sufficiency of the evidence on appeal
in a criminal case, this Court views the evidence in a light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). On
review, this Court does not substitute its own judgment for that
of the trier of fact. Cable v. Commonwealth, 243 Va. 236, 239,
415 S.E.2d 218, 220 (1992). The jury's verdict will not be set
aside unless it appears that it is plainly wrong or without
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supporting evidence. Code § 8.01-680; Traverso v. Commonwealth,
6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988). "It is
fundamental that `the credibility of witnesses and the weight
accorded their testimony are matters solely for the fact finder
who has the opportunity of seeing and hearing the witnesses.'"
Collins v. Commonwealth, 13 Va. App. 177, 179, 409 S.E.2d 175,
176 (1991) (quoting Schneider v. Commonwealth, 230 Va. 379, 382,
337 S.E.2d 735, 736-37 (1985)).
Code § 18.2-67.3(A)(1) provides that "[a]n accused shall be
guilty of aggravated sexual battery if he or she sexually abuses
the complaining witness, and . . . [that person] is less than
thirteen years of age."
"Sexual Abuse" means an act committed with
the intent to sexually molest, arouse, or
gratify any person, where:
a. The accused intentionally touches
the complaining witness's intimate parts or
material directly covering such intimate
parts;
b. The accused forces the complaining
witness to touch the accused's, the witness's
own, or another person's intimate parts or
material directly covering such intimate
parts; or
c. The accused forces another person to
touch the complaining witness's intimate
parts or material directly covering such
intimate parts.
Code § 18.2-67.10(6).
We find sufficient evidence to support appellant's
convictions. S.N. testified that appellant used to live in the
residence she shared with her mother, R.J.N. D.B., a neighbor
boy, was S.N.'s best friend. D.B. used to come to S.N.'s house
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when only S.N. and appellant were home. Appellant would force
S.N. to lie on top of D.B. on the living room couch and "hump"
him. To S.N., "humping" meant "sex"; she stated she would be
moving her body against D.B. Sometimes when these acts occurred,
S.N. and D.B. would be dressed; other times they would be naked.
Sometimes S.N. would be on top of D.B., and other times their
positions were reversed. Appellant also touched S.N.'s vagina
when she was naked, and S.N. touched appellant's penis when he
was naked; S.N. also touched D.B.'s penis. S.N. also stated that
appellant penetrated her with a spoon. Appellant told S.N. and
D.B. that if they told anyone about these events, he would kill
S.N.'s mother and D.B.'s dog, mother and father. S.N. was four
years old; D.B. was five.
D.B. testified that he used to go to S.N.'s house when his
mother went to work. Appellant would be there with the children.
Appellant forced S.N. to lie on top of D.B. in the living room
and "go up and down." Sometimes the children would be dressed;
other times they would be naked. Appellant forced S.N. to touch
D.B. on the penis with her hand and lips and place his penis in
her mouth. D.B. testified that while hiding from appellant in an
upstairs room he looked through a hole in the floor to see
appellant touch S.N.'s vagina and put his penis in S.N.'s mouth.
D.B. testified that sometimes when he witnessed these events,
S.N. and appellant were dressed, and other times they were naked.
Appellant told the children that if they did not comply he would
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kill S.N.'s mother or D.B.'s dog. The children first reported
the abuse in 1992 when R.J.N. caught them in a closet doing what
appellant had "taught them."
R.J.N. and R.B., D.B.'s father, also testified. R.J.N.
testified that appellant lived with her and her daughter during
the relevant time period. She testified that D.B.'s mother would
bring D.B. to her house and that the children were left in
appellant's care while the victims' mothers went to work. R.J.N.
confirmed that in 1992 she found S.N. and D.B. in the closet,
acting like they were having sex. She further confirmed the
existence of a hole in the floor of the second story of the
residence. R.B. testified that his wife left D.B. at R.J.N.'s
home during the relevant time period. He further testified that
he spoke with the children in 1992 after they had been discovered
in the closet and that they gave consistent accounts of the
alleged incidents. Contrary to appellant's complaints, the
absence of physical evidence to corroborate the children's
accounts and their delay in reporting the incidents do not
contradict the Commonwealth's evidence, but merely address the
weight of it.
The decision of the trial court is accordingly affirmed.
Affirmed.
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