Ronald K. Polaski v. Commonwealth ( 2009 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, Haley and Senior Judge Bumgardner
Argued at Richmond, Virginia
RONALD K. POLASKI
MEMORANDUM OPINION * BY
v. Record No. 2912-07-4 JUDGE JAMES W. HALEY, JR.
APRIL 7, 2009
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF STAFFORD COUNTY
J. Peyton Farmer, Judge Designate
Alexander C. Raymond, Assistant Public Defender (John D.
Mayoras, Senior Assistant Public Defender; Office of the Public
Defender, on brief), for appellant.
Karen Misbach, Assistant Attorney General (Robert F. McDonnell,
Attorney General; Donald E. Jeffrey, III, Senior Assistant Attorney
General, on brief), for appellee.
A jury found Ronald K. Polaski (“Polaski”) guilty of three counts of forcible sodomy in
violation of Code § 18.2-67.1(1), four counts of taking indecent liberties with a minor child in
violation of Code § 18.2-370.1, four counts of aggravated sexual battery in violation of Code
§ 18.2-67.3, and one count of animate object sexual penetration in violation of Code § 18.2-67.2.
The victim was Polaski’s daughter, A.G. In the trial court, Polaski sought to present evidence of
A.G.’s prior complaint of sexual abuse against another man, not Polaski. The trial court refused
to permit the admission of this evidence, and Polaski argues that the trial court erred because the
prior complaint could have provided an alternative source for A.G.’s apparent knowledge of
sexually explicit activities. According to Polaski, without the evidence of the prior complaint,
the jury might have assumed that the most likely explanation for a nine-year-old girl’s detailed
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
sexual knowledge was that she acquired that sexual knowledge from the experience of being
sexually abused by Polaski. Having reviewed the details of the prior complaint and the details of
A.G.’s allegations at trial, we must disagree with Polaski. The circumstances of the prior
complaint were so different from the victim’s trial testimony that the disputed evidence had no
logical tendency to establish the prior incident as an alternate source of the child’s sexual
knowledge. Our conclusion that the evidence was irrelevant and properly excluded requires that
we affirm Polaski’s convictions.
FACTS
On the day before Polaski’s trial began, the trial judge granted the Commonwealth’s
motion in limine to bar Polaski from presenting evidence of A.G.’s prior complaint of sexual
abuse against another man. The trial court reviewed this evidence in camera, and granted the
Commonwealth’s motion.
In addition to A.G.’s testimony, the evidence at Polaski’s trial included testimony from
police, social workers, and A.G.’s mother. In addition, the jury considered transcripts and
recordings of Polaski’s statements to the police and of his statements to A.G.’s mother.
A.G. was nine years old and living with Polaski in Stafford County at the time of the
events she described in her trial testimony. A.G. testified that she came out of her bedroom at
night and found Polaski, naked, on the couch, watching a pornographic movie on the television.
According to A.G., Polaski told her to suck his penis with her mouth, and she did. A.G. also
testified that, on another day, in the afternoon, she exited her bedroom to get a drink of water,
and once again she saw Polaski lying on the couch, naked. This time a glass of chocolate milk
was near Polaski, and some of the chocolate syrup was on Polaski’s penis. A.G. remembers
waking him up, “to ask him why he was doing that.” Polaski told her to lick the chocolate syrup
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off of his penis. A.G. remembered that she was being punished at the time for misbehavior and
that Polaski told her that he would end or decrease her punishment if she would lick up the
chocolate syrup. A.G. went on to testify that she did lick up the chocolate syrup. A.G. also
stated that, on a separate occasion, Polaski got into the shower with her and asked her to wash his
body. A.G. said that Polaski liked her to wash his penis more than the rest of his body and that
Polaski asked her to get onto her knees. When she was on her knees, Polaski put his penis into
her mouth. A.G. also testified that Polaski put his finger inside her vagina.
Recordings of a police interview with Polaski were played for the jury. Polaski told
Detective Harris that he was asleep and having a dream about oral sex when he woke up to find
A.G. with her mouth on his penis. When the detective asked him how many times this had
happened, Polaski answered: “One [time]with the mouth and maybe twice with her hand.”
However, at trial, Polaski testified that he never woke up to find A.G. with her mouth on his
penis and that he had been confused by the questions of the police. Rather, Polaski said that he
did have a sexual dream and woke up to find A.G. touching his penis with her hand.
The earlier sexual abuse complaint occurred four years before the allegations against
Polaski, when A.G. was five years old. When A.G.’s grandmother was taking care of A.G. in the
summer of 2003, A.G. sat on her grandmother’s boyfriend’s lap. A.G. told the Prince William
County police that her grandmother’s boyfriend placed her hand on his penis, over his clothing.
The social services’ records that the trial judge reviewed in camera indicate that the
grandmother’s boyfriend admitted to at least some of the allegations and was charged with taking
custodial indecent liberties with a minor child. The record does not disclose any disposition of
these charges.
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ANALYSIS
Generally, a reviewing court will overturn a trial court’s decision regarding the admission
of evidence only if the record demonstrates an abuse of discretion. Dagner v. Anderson, 274 Va.
678, 685, 651 S.E.2d 640, 644 (2007). However, Polaski argues that, to the extent that the
evidence of the prior complaint of sexual abuse is forbidden by Code § 18.2-67.7, 1 the statute is
unconstitutional as applied to him for infringing his rights under the Confrontation Clause of the
Sixth Amendment to the United States Constitution. We review de novo a defendant’s claim that
his constitutional right to confrontation was violated. Dickens v. Commonwealth, 52 Va. App.
412, 417, 663 S.E.2d 548, 550 (2008).
1
This code section, commonly known as the Rape Shield Statute, has three enumerated
exceptions:
1. Evidence offered to provide an alternative explanation for
physical evidence of the offense charged which is introduced by
the prosecution, limited to evidence designed to explain the
presence of semen, pregnancy, disease, or physical injury to the
complaining witness’s intimate parts; or
2. Evidence of sexual conduct between the complaining witness
and the accused offered to support a contention that the alleged
offense was not accomplished by force, threat or intimidation or
through the use of the complaining witness’s mental incapacity or
physical helplessness, provided that the sexual conduct occurred
within a period of time reasonably proximate to the offense
charged under the circumstances of this case; or
3. Evidence offered to rebut evidence of the complaining witness’s
prior sexual conduct introduced by the prosecution.
Polaski concedes that none of the three exceptions applies to the prior abuse of A.G. by
her grandmother’s boyfriend.
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The Constitution does not prohibit trial judges from excluding evidence that is irrelevant.
Crane v. Kentucky, 476 U.S. 683, 644 (1986); United States v. Lancaster, 96 F.3d 734, 744
(1996); see also Oliva v. Commonwealth, 19 Va. App. 523, 527, 452 S.E.2d 877, 880 (1995).
“Combined, the rights to compulsory process, confrontation and due process give the defendant a
constitutional right to present relevant evidence.” Neely v. Commonwealth, 17 Va. App. 349,
356, 437 S.E.2d 721, 725 (1993) (emphasis added). Code § 18.2-67.7, the Rape Shield Statute,
also provides: “evidence of specific instances of his or her prior sexual conduct shall be
admitted only if it is relevant . . . .”
‘“Evidence is relevant if it has a logical tendency, however slight, to establish a fact at
issue in the case.’” Utz v. Commonwealth, 28 Va. App. 411, 418, 505 S.E.2d 380, 384 (1998)
(quoting Ragland v. Commonwealth, 16 Va. App. 913, 918, 434 S.E.2d 675, 678 (1993)).
Polaski argues that evidence of A.G.’s prior complaint of sexual abuse was relevant because it
tended to refute the inference that Polaski’s guilt was the only probable explanation for a
nine-year-old girl’s knowledge of explicit sexual matters. Observing, correctly, the absence of
any Virginia decisions admitting evidence of prior sexual abuse for this purpose, Polaski relies
on authority from four other states. State v. Pulizzano, 456 N.W.2d 325 (Wis. 1990); State v.
Jacques, 558 A.2d 706 (Me. 1989); Commonwealth v. Ruffen, 507 N.E.2d 684 (Mass. 1987);
State v. Carver, 678 P.2d 842 (Wash. Ct. App. 1984).
We believe that the partially disputed prior complaint in this case was irrelevant because
the details of the prior complaint are so different from A.G.’s trial testimony. At trial, A.G.
stated that Polaski placed his naked penis in her mouth on three occasions, that he had her wash
his body when the two of them were naked, together, in the shower, and that he inserted his
finger into her vagina. Of course, it is possible that A.G. had this knowledge regarding sexual
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subjects well before the time of the alleged offenses, and it is not impossible that she acquired
this knowledge from sources of information other than the experience of being sexually abused
by her father. But we may eliminate the incident described in the prior complaint as a possible
source of the sexual knowledge she demonstrated through her trial testimony. The prior
complaint was that, when she was five years old, her grandmother’s boyfriend placed her hand
on his penis, over his clothing. This incident has no logical tendency to show A.G.’s prior
knowledge of the physical appearance of a penis, or of the fellatio or object sexual penetration
she described at trial.
Indeed, the authorities on which Polaski relies are in accord with this conclusion. The
Carver and Jacques opinions do not describe either the complaining witnesses’ trial testimony or
the disputed prior complaint of sexual abuse in sufficient detail to permit meaningful comparison
with the facts of this case. Though it may be significant that Carver describes the defendant’s
attempt “to introduce at trial evidence of similar sexual abuse of the victims by their grandfather
and a friend.” Carver, 678 P.2d at 843 (emphasis added). Jacques mentions that “evidence of
prior sexual abuse might be admissible if offered for the purpose of challenging the jury’s
assumption of children’s innocence; subject to the limitations of relevance under Rule 403.”
Jacques, 558 A.2d at 708 (emphasis added).
It is clear, however, that Ruffen and Pulizzano do not support Polaski’s position that he
has a right to present evidence of a prior sexual abuse against the complaining witness, despite
the fact that the earlier abuse is not similar to the allegations at trial. In Ruffen, the Supreme
Judicial Court of Massachusetts ruled that the trial court erred in refusing to permit the defendant
to conduct voir dire of the complaining witness regarding prior sexual abuse precisely because
the details of the prior complaint were similar to the allegations at trial:
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Thus, the defendant in this case, because he had a reasonable
suspicion and a good faith basis for the inquiry, should have been
permitted a voir dire examination of the victim’s mother and of the
victim to determine whether the victim had been sexually abused
in the past. If the victim had been abused sexually in the past in a
manner similar to the abuse in the instant case, such evidence
would be admissible at trial because it is relevant to the issue of the
victim’s knowledge about sexual matters.
Ruffen, 507 N.E.2d at 815 (emphasis added).
As in the other cases relied on by Polaski, the defendant in Pulizzano attempted to
introduce evidence of prior sexual abuse of the complaining witness “for the limited purpose of
establishing an alternative source for M.D.’s sexual knowledge.” Pulizzano, 455 N.W.2d at 327.
To support her request, Ms. Pulizzano offered the report of
William Freund, M.D., a psychiatrist who treated M.D. [the
complaining witness] for emotional problems caused by the earlier
incident. . . . Dr. Freund then elicited that M.D. had been sexually
abused sometime in 1984 by three adults, including an “older”
woman. The sexual assault included fondling and “sodomy of the
penis,” and because M.D. stated he was “hurt” in the incident,
Dr. Freund opined that anal penetration may also have occurred.
Dr. Freund’s report further stated that M.D. was “very precocious
sexually” and abnormally interested in sexual material. Dr. Freund
noted that M.D. would simply walk up to people and ask them to
perform fellatio on him.
Id. at 327-28. The principal reason for the Supreme Court of Wisconsin’s decision to reverse the
defendant’s conviction appears to have been the close similarity between the prior abuse and the
trial allegations. “M.D., who was the only one of the children to testify, alleged that the sexual
conduct included fondling, fellatio, anal penetration with an object, and digital vaginal
penetration.” Id. at 328. “The evidence Ms. Pulizzano sought to present was that M.D. had been
the victim of a prior sexual assault which involved acts similar to those alleged here.” Id. at 329
(emphasis added).
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Though these authorities have approved the admission of evidence similar to A.G.’s prior
complaint for the purposes of proving a child’s sexual knowledge, none of them appear to
approve the admission of such evidence unless the details of the prior complaint are similar to
the allegations at trial. Without that similarity, the prior complaint is irrelevant for the purpose
for which Polaski has offered it.
We also believe that Polaski’s own trial testimony and the recordings of his interview
with the police further negate his argument that the prior complaint was relevant to establishing
an explanation for A.G.’s precocious sexual knowledge. 2 It is true that, at trial, Polaski denied
the section of his recorded statement in which he explained that he woke up from a sexual dream
to find A.G. with her mouth on his penis. But even the version of this event most favorable to
Polaski, i.e. that he woke up from the sexual dream only to find A.G. touching his penis with her
hand, provides at least as much explanation regarding A.G.’s sexual knowledge as the prior
complaint. Thus, the prior complaint had no logical tendency to establish the proposition for
which Polaski offered it, and as irrelevant, was properly excluded.
Affirmed.
2
Polaski’s statements and testimony were not yet in evidence at the time of the trial
court’s ruling on the Commonwealth’s motion in limine to bar Polaski from introducing evidence
of the prior complaint. However, in Ricks v. Commonwealth, 39 Va. App. 330, 336 n.3, 573
S.E.2d 266, 269 n.3 (2002), we held that, on appeal, we could consider the entire record, not
merely the evidence available at the time of the disputed ruling, in our review of an evidentiary
ruling of the trial court.
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