Derrick Motameni v. Commonwealth ( 2005 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton and Bumgardner
Argued at Richmond, Virginia
DERRICK MOTAMENI
MEMORANDUM OPINION* BY
v. Record No. 2861-04-2 JUDGE RUDOLPH BUMGARDNER, III
NOVEMBER 1, 2005
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF GREENE COUNTY
Daniel R. Bouton, Judge
Terry T. Hughes (Terry T. Hughes, P.C., on brief), for appellant.
Susan L. Parrish, Assistant Attorney General (Judith Williams
Jagdmann, Attorney General, on brief), for appellee.
Derrick Motameni appeals his conviction of rape, Code § 18.2-61. He maintains the
evidence was insufficient to prove penetration and insufficient to corroborate his statements to
the police. For the following reasons, we reverse.
We view the evidence and all reasonable inferences drawn from it in the light most
favorable to the Commonwealth. Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d
415, 418 (1987). The twenty-year-old defendant lived with his half-sister and her daughter, the
twelve-year-old victim, during the summer of 2002. In December, the victim told her mother
that something happened between her and the defendant four months earlier around the time of
the county fair.
A Sexual Assault Nurse Examiner saw the victim on January 14, 2003. The victim stated
that someone started fingering her when she lived in Maryland and had molested her in August.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
The nurse reported a thinning of the victim’s hymen, which was intact except for “a notching of
the area at the nine o’clock position.” The nurse could not identify what caused the thinning of
the hymen except that it was caused by some kind of “rubbing motion.” She found no evidence
of any perforation, tearing, or lacerations. The nurse concluded that the etiology of the thinning
was inconclusive because it could have been a birth defect.
A deputy sheriff interviewed the defendant on January 10, 2003. The deputy
tape-recorded the interview, but the recorder only captured his questions and remarks. The
statements and answers of the defendant are essentially inaudible. The defendant reported that
the victim came on to him, teased him, and performed oral sex on him without being asked. The
deputy asked the defendant if he had been “intimate” with or “had sex” with the victim. He said
they had had sex a few times, most recently after the county fair. The defendant stated that he
went to the victim’s bedroom and she took off her clothes and got on top of him. The defendant
explained he used his fingers in her genital area before they had sex but denied having “finger
sex” with the victim.
During the interview, the deputy employed various phrases while questioning the
defendant about his sexual acts with the victim: “intimate relations,” “sexual relations,”
“intimate,” and “regular sex.” Neither party to the interview explained their understanding of the
precise meaning of those terms or the sense in which they were using the terms. They did not
employ the term “sexual intercourse” or “penetration” during the interview.
The Commonwealth called the victim as a witness at trial. She began testifying that she
was lying in bed ready to go to sleep one night in August 2002 when the defendant came into her
room and sat on her bed. She then refused to answer any further questions because it was
“embarrassing.” When efforts to have her continue failed, the Commonwealth rested.
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The defendant moved to strike the evidence on the ground that it failed to prove
penetration. The trial court denied the motion. It found the defendant admitted to the deputy
that he had sexual intercourse with the victim, and it found the nurse and the victim corroborated
that admission.
The defendant was charged with rape. Code § 18.2-61(iii) provides that “any person
[who] has sexual intercourse with a complaining witness . . . and such act is accomplished . . .
with a child under age 13 as the victim, he or she shall be guilty of rape.” The Commonwealth
had to prove penetration: “‘[p]enetration by a penis of a vagina is an essential element of the
crime of rape.’” Moore v. Commonwealth, 254 Va. 184, 186, 491 S.E.2d 739, 740 (1997)
(citation omitted). “While the necessary element of sexual intercourse may be proved by
circumstantial evidence the proof must go beyond the mere showing of injury to the genital
organs of the female and an opportunity on the part of the accused to have committed the
offense.” Strawderman v. Commonwealth, 200 Va. 855, 859, 108 S.E.2d 376, 379 (1959)
(citation omitted).
The evidence does not support the trial court’s finding that the defendant’s statement
amounted to an admission to having sexual intercourse with the victim. The deputy never asked
whether the defendant had committed an act of penetration, and the defendant never said that
penetration occurred. The terms employed during the interview were not precise terms, and each
has varying meanings that may include penetration but may not. During the interview, the terms
were not given a precise meaning and none arose from the context of the conversation. The
terms themselves and the context in which they were used did not reasonably permit an inference
that they described an act of penetration. The statements the defendant made during his
interview with the deputy did not constitute an admission to the crime of rape.
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The nurse’s examination of the victim did not establish the element of penetration. While
it revealed a thinning of the hymen, and a notching at the nine o’clock position, the hymen was
intact. The nurse could only opine that a rubbing motion caused the thinning, but could not
determine a cause for the condition.
Finally, the victim did not supply the necessary proof. While a victim need not testify as
to every essential element of the offense, some evidence must establish each element beyond a
reasonable doubt. In Morning v. Commonwealth, 37 Va. App. 679, 561 S.E.2d 23 (2002), this
Court affirmed the conviction when the victim corroborated details of the incident but denied the
sexual acts. However, Morning made a full confession of those acts. In this case, the defendant
did not confess to the sexual act charged, although he admitted some sort of sexual activity
occurred.
The evidence supports an inference that the defendant engaged in unlawful sexual acts
against the under-aged victim about the time of the county fair, but it does not prove penetration,
which is an essential element of the crime charged. “To justify conviction of a crime, it is
insufficient to create a suspicion or probability of guilt.” Moore, 254 Va. at 186, 491 S.E.2d at
740. “It is not sufficient that facts and circumstances proved be consistent with the guilt of the
accused. To sustain a conviction they must be inconsistent with every reasonable hypothesis of
his innocence.” Strawderman, 200 Va. at 860, 108 S.E.2d at 380. In this case, the evidence does
not directly prove penetration and does not permit an inference of it. Accordingly, we reverse.
Reversed and dismissed.
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