Pierre Auguste Renoir v. Commonwealth of VA ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Frank and Senior Judge Hodges
PIERRE AUGUSTE RENOIR
MEMORANDUM OPINION * BY
v. Record No. 2097-98-3 JUDGE ROBERT P. FRANK
MARCH 28, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Clifford R. Weckstein, Judge
(C. Gregory Phillips; Phillips & Swanson, on
brief), for appellant. Appellant submitting
on brief.
(Mark L. Earley, Attorney General; Richard B.
Smith, Assistant Attorney General, on brief),
for appellee. Appellee submitting on brief.
Pierre Auguste Renoir (appellant) appeals his convictions of
anal sodomy (2 counts), rape, aggravated sexual battery (2
counts), indecent liberties (2 counts), sodomy by fellatio (2
counts), object penetration (2 counts), and sodomy by cunnilingus.
On appeal, appellant argues that the evidence was insufficient to
convict him and, more particularly, that the Commonwealth failed
to prove penetration. We agree in part and disagree in part.
I. BACKGROUND
The victim was born in 1987 and is the daughter of appellant
and his former wife, Holly Hicks. From 1990 until 1992, the
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
victim, her brother, Hicks, and appellant lived in a series of
apartments in Roanoke. Hicks worked at a full-time job, and
appellant stayed at home to care for the children.
Appellant and Hicks divorced in 1992. For a period of time,
appellant and Hicks resided in adjoining apartments to facilitate
care of the children. The victim and her brother lived primarily
in appellant's apartment. In January of 1993, Hicks, appellant,
the victim, the victim's brother, appellant's new wife, Renee
Gamble, and Gamble's two children all moved to a house in Roanoke,
which the victim called "the star house" due to its proximity to a
Roanoke landmark.
For part of 1995, appellant, the victim, and the victim's
brother lived with Hicks in a house outside Roanoke. Appellant
then met and moved in with Jo Ellen Famularo. The victim and her
brother lived with appellant and Famularo in Famularo's Roanoke
County apartment. In 1996, appellant and Famularo moved to
Colorado and took the victim and her brother with them. Appellant
and Famularo placed some of their belongings at a storage facility
in Cheyenne, Wyoming. Appellant and Famularo parted ways in June
of 1996, and Famularo returned to Virginia.
During the summer of 1996, Hicks brought her children back to
Virginia from Colorado. Thereafter, the victim began having
nightmares and was afraid at night. After a bad dream one night,
the victim told her mother that appellant had done "bad things" to
her and described the conduct appellant had engaged in during the
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preceding years. Hicks confronted appellant during a telephone
conversation a few days later. Appellant denied the accusations,
but said he would stay away from the children if Hicks agreed not
to take any action on the matter. He said he would agree in
writing never to have contact with her or the children again and
offered to relinquish custody of the children.
The victim was eleven years old at the time of appellant's
trial. She identified the place where she would urinate as her
"pee-pee," her vagina as the place "where babies come out," and
her anus as her "butt." She drew a picture of a "man's pee-pee,"
which she described as "where pee comes out of."
CUNNILINGUS
The victim testified that her first memory of her father
"hurting" her was when she awoke during the night when she was
four or five years old to find appellant "licking her pee-pee."
The victim then went back to sleep. This incident occurred when
appellant and Hicks lived in adjoining apartments.
AGGRAVATED SEXUAL BATTERY AND INDECENT LIBERTIES
Subsequently, more than once while living at the "star
house," appellant rubbed his "pee-pee" on the victim's "pee-pee."
The victim further stated that appellant touched her with his
hands on her "pee-pee," her breasts, and her "butt." While
appellant was holding the victim's breasts, he kissed her "like
you would kiss someone that you love," placing his tongue in her
mouth.
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Appellant took nude photographs of the victim posing with
Gamble's daughter. The victim testified that appellant showed her
"sex videos" to show her how to "move and stuff." One of the
videos depicted people that she knew.
Victim further testified that appellant touched her on her
"pee-pee" with his tongue.
RAPE
The victim stated that, on more than one occasion while she
was in bed at the "star house," appellant told her to undress and
she complied. Appellant got on top of her and "sticked" his
"pee-pee" where babies come out and it really hurt. At these
times, appellant's "privates" were inside the victim's "privates."
Appellant was holding the victim's "boobs," kissing her, and
saying, "Oh, baby, oh baby." During one such incident, appellant
put a "covering" on his "pee-pee" before he put it inside "where
babies come out."
ANAL SODOMY
The victim further testified that appellant stuck his
"pee-pee" in her butt. The victim testified she was hurting and
he was feeling great, rubbing her butt faster and faster. It is
not clear from the record whether anal sodomy occurred once or
several times.
OBJECT PENETRATION
The victim stated that appellant had devices he used on her
body on more than one occasion in the "star house." She drew
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illustrations of three different devices, which were plastic and
battery operated. The victim said the device would shake when
appellant turned it on. Appellant put all three devices "on" her
"pee-pee," "where babies come out," and in her "butt." Referring
to a drawing the victim said was consistent with female genitalia,
she stated that appellant used the device to touch the "little
lips" inside the labia majora.
When the Commonwealth's attorney asked the victim during
direct examination whether appellant "put it on your butt, did it
go inside or was it merely laying on top," the victim responded,
"merely laying on top." The Commonwealth's attorney then asked
the victim, "When it was where babies go, did it go inside or
not?" The victim responded, "No, ma'am." The victim indicated
she was familiar with her reproductive anatomy, knowing the inner
and outer lips of the vagina. After being shown a diagram of the
vagina, the victim said the device touched half the inside (the
labia majora). On cross-examination, when asked was the device
just on top, the victim responded, "No, it was kind of inside me
and kind of outside."
FELLATIO
On several occasions, appellant told the victim to lick his
"pee-pee." He would tell her to open her mouth and he would have
the victim stick his "pee-pee" in her mouth and have her "suck
it." The victim said, "When the stuff runs in my mouth it tastes
terrible." Appellant told the victim to swallow the "stuff." The
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victim testified that after appellant would leave, she would "say
yuk." The victim further said that this same event happened more
than once.
The victim said she did not tell anyone about what appellant
was doing to her because appellant threatened to "go away," and
she was afraid she would never see him again.
When Famularo visited the storage facility to retrieve her
property before she returned to Virginia, she found two canisters
of undeveloped film. The film contained nude posed pictures of
the victim and Gamble's daughter. Famularo also found four dildos
in a box of appellant's clothing. The victim identified three of
the dildos as the devices appellant had used to touch her.
Hicks testified that appellant showed her a video he made of
himself and Gamble having "intimate relationships." Hicks
testified that during her marriage to appellant he made many
threats on her life, even to the extent of placing a gun to her
head.
Dr. Donald Keys examined the victim in December of 1996. The
victim's hymen was asymmetric, with a notch on one side. There
was a "very scarred, healed appearance" to the hymen. The hymen
is inside the labia majora. The victim's rectal exam did not
reveal any scarring. However, the victim's rectum dilated upon a
touch, which was unusual in the absence of an immediate need to
defecate. Keys testified that the victim's condition was
"consistent with penetration."
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II. ANALYSIS
"On appeal, 'we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom.'" Archer v. Commonwealth,
26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation omitted).
The jury accepted the Commonwealth's evidence, and rejected
appellant's argument that the victim's testimony was unworthy of
belief. "The credibility of the witnesses and the weight accorded
the evidence are matters solely for the fact finder who has the
opportunity to see and hear that evidence as it is presented."
Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730,
732 (1995) (citations omitted). We do not find that the victim's
testimony was "'inherently incredible, or so contrary to human
experience as to render it unworthy of belief.'" Robertson v.
Commonwealth, 12 Va. App. 854, 858, 406 S.E.2d 417, 419 (1991)
(quoting Fisher v. Commonwealth, 228 Va. 296, 299-300, 321 S.E.2d
202, 204 (1984)). Moreover, the victim's testimony was
corroborated by the medical evidence, as well as the discovery of
the dildos and the film among appellant's stored property. The
victim identified the dildos as the devices appellant used on her
body. She also identified the pictures as those taken by
appellant of her and Gamble's daughter.
On appeal, appellant contends that the evidence was
insufficient to prove the element of penetration for his
convictions of rape, two counts of sodomy by fellatio, anal
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sodomy, object sexual penetration, and sodomy by cunnilingus.1 We
summarize the victim's testimony. 2
Rape: The victim testified that appellant, on more than one
occasion, placed his penis inside her vagina and it hurt her. She
said that once he used a "covering" over his penis before he
penetrated her.
Two counts of sodomy by fellatio: The victim testified that,
more than once, appellant put his penis into her mouth, and she
sucked it until he ejaculated.
Two counts of object penetration: The victim, knowing her
reproductive anatomy and seeing a diagram, testified that the
device touched her on the inside of her vagina. However, when
asked about the device in reference to her anus, she testified it
was only laying on top of her butt. The evidence is not
sufficient to show penetration of her anus.
1
Appellant offers no argument specifically challenging the
sufficiency of the evidence to sustain his convictions for
aggravated sexual battery and taking indecent liberties. Nor does
appellant contend that the Commonwealth failed to prove that the
offenses occurred within the time frame charged in the indictment.
Accordingly, we do not address these issues. See Rules 5A:12(c)
and 5A:20(e) (requiring the petition for appeal to contain
argument pertaining to each issue raised on appeal).
2
It is clear from appellant's testimony as a whole that she
equated appellant's "pee-pee" with his penis, the place on her
body "where babies come out" with her vagina, her "butt" with her
anus, and her "pee-pee" with the opening where urine is emitted.
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Cunnilingus: Victim testified that she was asleep and woke
up to appellant licking her "pee-pee." There was no testimony of
penetration.
Anal sodomy: Appellant stuck his penis in the victim's
"butt." It hurt.
Based on the victim's testimony and the other evidence before
the jury, the jury properly found that the Commonwealth had
established the elements of penetration for rape, one count of
anal sodomy, two counts of fellatio, and one count of object
penetration.
We find that the Commonwealth did not prove penetration in
the cunnilingus count or in one count of object sexual penetration
because there was no evidence of anal penetration in the latter
count.
We further find that there was only one incident of anal
sodomy.
CONCLUSION
For these reasons, we, therefore, affirm the following
convictions: rape, aggravated sexual battery (two counts),
indecent liberties (two counts), object sexual penetration (one
count), fellatio (two counts), and anal sodomy (one count).
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We reverse and dismiss the charge of cunnilingus, one count
of anal sodomy, and one count object sexual penetration.
Affirmed, in part
and reversed and
dismissed, in part.
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