Present: All the Justices
RICHARD WARREN ALLEN
v. Record No. 130304 OPINION BY JUSTICE LEROY F. MILLETTE, JR. COMMONWEALTH OF VIRGINIA January 10, 2014
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal we consider whether the Court of Appeals of
Virginia erred in affirming the circuit court's finding that
the Commonwealth presented sufficient evidence to slightly
corroborate the corpus delicti of aggravated sexual battery.
I. Facts and Proceedings
Richard Warren Allen confessed to his daughter to having
engaged in inappropriate sexual behavior with his grandson, who
was four years old at the time. The following day, Allen, on
his own initiative, went to the City of Lynchburg police
station and voluntarily repeated his confession to Officer
Timothy L. Dooley and Detective Kevin T. Poindexter. The
substance of Allen's confession is as follows.
First, Allen confessed to touching the clothing covering
his grandson's genital area while his grandson was sleeping.
This was done only while his grandson was sleeping, and his
grandson was wearing shorts or pants during every one of these
events. Also while his grandson was sleeping, Allen would rub
his grandson's feet and masturbate. Second, Allen confessed to wrestling with his grandson on
Allen's bed when they were alone. During these wrestling
events, his grandson would "brush up against [Allen's] penis."
This aroused Allen, causing him to get an erection. Every time
Allen got an erection, he would allow his grandson to use his
hands and feet to touch the clothing covering Allen's penis
while Allen was still in underwear or shorts.
Based on this confession, a grand jury returned a true
bill for aggravated sexual battery. 1 Allen pled not guilty to
the indictment, waived a jury trial, and did not testify.
After the Commonwealth presented its evidence, Allen made a
motion to strike which was overruled, and the circuit court
found Allen guilty of aggravated sexual battery. Allen filed a
motion to reconsider, arguing that the Commonwealth failed to
prove the corpus delicti of aggravated sexual battery by
failing to sufficiently corroborate Allen's confession, thus
failing to establish Allen's guilt beyond a reasonable doubt.
The circuit court denied Allen's motion for reconsideration and
sentenced Allen to incarceration for seven years and six
months, with seven years suspended upon good behavior and
intensive supervised probation.
1 See Code § 18.2-67.3 (setting forth the elements of aggravated sexual battery); Code § 18.2-67.10 (setting forth the definition of "sexual abuse" as used in Code § 18.2-67.3).
2 Allen timely appealed to the Court of Appeals. A single
judge of the Court of Appeals, by a per curiam order, denied
Allen's appeal on the basis that the circuit court did not err
in holding that (1) sufficient evidence existed for the
Commonwealth to prove the corpus delicti of aggravated sexual
battery and (2) sufficient evidence existed to convict Allen
for the crime of aggravated sexual battery. Allen v.
Commonwealth, Record No. 0924-12-3 (Nov. 28, 2012). Upon
Allen's demand for panel review pursuant to Rule 5A:15A(a), a
three judge panel of the Court of Appeals entered an order
denying Allen's appeal for the reasons stated in the per curiam
order. Allen v. Commonwealth, Record No. 0924-12-3 (Jan. 17,
2013).
Allen timely filed a petition for appeal with this Court.
This appeal presents two assignments of error:
1. The Court of Appeals was in error by failing to grant the Petition for a Writ of Error of the Appellant based on the failure of the Commonwealth to prove a corpus delicti, . . . based upon the lack of evidence other than the Appellant's testimony.
2. The Court of Appeals failed to grant a Writ of Error to the Appellant on the basis of the sufficiency of the evidence, . . . based upon the lack of evidence other than the Appellant's testimony.
3 II. Discussion
A. Standard of Review
"When [reviewing a defendant's] challenge to the
sufficiency of the evidence to sustain a conviction, this Court
reviews the evidence in the light most favorable to [the
Commonwealth, as] the prevailing party at trial[,] and
consider[s] all inferences fairly deducible from that
evidence." Crawford v. Commonwealth, 281 Va. 84, 111, 704
S.E.2d 107, 123 (2011) (internal quotation marks omitted). The
lower court will be reversed only if that court's "judgment is
plainly wrong or without evidence to support it." Id. at 112,
704 S.E.2d at 123 (internal quotation marks omitted).
B. The Corpus Delicti Rule
"In every criminal prosecution" the Commonwealth must
prove the corpus delicti: "the fact that the crime charged has
been actually perpetrated." Maughs v. City of Charlottesville,
181 Va. 117, 120, 23 S.E.2d 784, 786 (1943) (internal quotation
marks omitted). This general requirement of proof, however, is
different from the corpus delicti rule. See Black's Law
Dictionary 395 (9th ed. 2009). The corpus delicti rule
requires the Commonwealth to introduce evidence independent of
an extrajudicial confession to prove that the confessed crime
actually occurred—that is, to prove the corpus delicti. Moore
v. Commonwealth, 132 Va. 741, 745, 111 S.E. 128, 129 (1922).
4 1. The History of the Corpus Delicti Rule
The origin of the corpus delicti rule can be traced back
at least as far as seventeenth century England. In 1660, John
Perry was subjected to continuous and repeated questioning as
to the disappearance of his master, William Harrison. After
initially denying all wrongdoing, Perry finally confessed that
he, his mother, and his brother had together robbed and
murdered Harrison. Although a body was never found, and
Perry's mother and brother denied all wrongdoing, all three
suspects were convicted and executed on the strength of Perry's
confession. Several years later, however, Harrison returned
home, claiming to have been kidnapped and sold into slavery in
Turkey. In short, Perry had admitted to a falsehood resulting
in the execution of himself, his mother, and his brother. See
Perry's Case (1660), 14 Howell St. Tr. 1312, 1312-24 (Eng.). 2
The injustice of Perry's Case and similar cases triggered
the creation of the corpus delicti rule, although the corpus
delicti rule is not uniformly applied as part of the English
common law. Opper v. United States, 348 U.S. 84, 90 & n.5
(1954) ("[English] courts have been hesitant to lay down a rule
that an uncorroborated extrajudicial confession may not send an
accused to prison or to death."); 7 John H. Wigmore, Evidence
2 14 T.B. Howell, A Complete Collection of State Trials (London, T.C. Hansard 1816).
5 in Trials at Common Law § 2070, at 508-10 (James H. Chadbourn
ed., 1978).
In the United States, the corpus delicti rule took root
after the Boorn trial in Vermont, which replicated the false
confession scenario of Perry's Case, was widely publicized.
See Trial of Stephen and Jesse Boorn, 6 Am. St. Tr. 73, 73-95
(1819). 3 The Boorn trial influenced Professor Simon Greenleaf
to endorse the corpus delicti rule in his evidence treatise.
See 1 Simon Greenleaf, A Treatise on the Law of Evidence § 214,
at 275 n.2 (14th ed. 1883) (discussing the Boorn trial in
conjunction with cautious acceptance of verbal confessions);
id. § 217, at 278-79 (approving the corpus delicti rule). In
turn, Professor Greenleaf's treatise has been noted as having
contributed to the corpus delicti rule's near-universal
adoption by the states. Wigmore, supra, § 2071, at 511.
2. The Corpus Delicti Rule and the Slight Corroboration Requirement
In Virginia, we long ago established that it is
"essential" in a criminal prosecution that the Commonwealth
must prove the corpus delicti, that is, "that a [crime] has
been committed." Smith v. Commonwealth, 62 Va. (21 Gratt.)
809, 813, 819 (1871); Forde v. Commonwealth, 57 Va. (16 Gratt.)
3 6 John D. Lawson, American State Trials (1916).
6 547, 550 (1864). 4 From this bedrock principle, we adopted the
corpus delicti rule for when the Commonwealth seeks to prove
the existence of the crime by means of the accused's
extrajudicial confession. See Brown v. Commonwealth, 89 Va.
379, 382, 16 S.E. 250, 251 (1892). This was a necessary
precaution because "evidence as to confessions of parties is
intrinsically weak and is inconclusive to establish a fact
without the aid of other testimony." Collins v. Commonwealth,
123 Va. 815, 821, 96 S.E. 826, 828 (1918).
We therefore recognized that, under the corpus delicti
rule, "an accused cannot be convicted solely on his
uncorroborated extrajudicial admission or confession." Watkins
v. Commonwealth, 238 Va. 341, 348, 385 S.E.2d 50, 54 (1989).
Instead, "slight corroboration of the confession is required to
establish corpus delicti beyond a reasonable doubt." Cherrix
v. Commonwealth, 257 Va. 292, 305, 513 S.E.2d 642, 651 (1999)
(emphasis added). However, such slight corroboration need not
be "of all the contents of the confession, or even all the
4 Requiring the Commonwealth to prove "that the [criminal] act itself was done" is, standing alone, an insufficient protection against wrongful prosecution of innocent defendants. Smith, 62 Va. (21 Gratt.) at 813. We have therefore also required the Commonwealth to prove "that [the criminal act] was [actually] done by the person charged" in tandem with requiring proof of the corpus delicti. Id.; see also Boswell v. Commonwealth, 61 Va. (20 Gratt.) 860, 875 (1871) ("The Commonwealth having proved the corpus delicti, and that the act was done by the accused, has made out her case.").
7 elements of the crime." Watkins, 238 Va. at 348, 385 S.E.2d at
54.
Slight corroboration may be proved by either direct or
circumstantial evidence. Id. at 349, 385 S.E.2d at 54. To
this end, slight corroboration exists when physical evidence
relates to the confessed illegal act. See, e.g., Magruder v.
Commonwealth, 275 Va. 283, 307-09, 657 S.E.2d 113, 126 (2008);
Wright v. Commonwealth, 245 Va. 177, 190, 194, 427 S.E.2d 379,
388, 390 (1993). Similarly, eyewitness testimony detailing the
occurrence of the illegal act can help satisfy the slight
corroboration requirement. See, e.g., Jackson v. Commonwealth,
255 Va. 625, 645-46, 499 S.E.2d 538, 551-52 (1998).
However, we must tread carefully when evaluating the
probative weight of evidence that might provide slight
corroboration. As we explained, "the coincidence of
circumstances tending to indicate guilt, however strong and
numerous they may be, avails nothing unless the corpus delicti
. . . be first established." Phillips v. Commonwealth, 202 Va.
207, 211-12, 116 S.E.2d 282, 285 (1960). Thus, evidence merely
placing the defendant within the geographic proximity of a
crime is insufficient corroboration of a confession to having
committed such crimes within the area. See Caminade v.
Commonwealth, 230 Va. 505, 507-08, 510-11, 338 S.E.2d 846, 847-
49 (1986). Moreover, if the facts offered to satisfy the
8 slight corroboration requirement are "just as consistent with
non-commission of the offense as . . . with its commission,"
then slight corroboration does not exist. Phillips, 202 Va. at
212, 116 S.E.2d at 285.
C. Whether the Commonwealth Satisfied Its Burden of Proof
Allen made an extrajudicial confession to having committed
aggravated sexual battery. We must therefore determine whether
the remaining evidence provides the slight corroboration of the
corpus delicti of aggravated sexual battery. Cherrix, 257 Va.
at 305, 513 S.E.2d at 651 (citing Jackson v. Commonwealth, 255
Va. 625, 646, 499 S.E.2d 538, 551 (1998)).
The only other substantive evidence entered into the
record was the testimony of Allen's daughter. Allen's daughter
testified that she, her husband, and her son lived in a
basement apartment, and that Allen and other family members
lived upstairs. Allen had various opportunities to be alone
with his grandson. The grandson would sometimes sleep in the
same bed with both his grandmother and Allen, though
occasionally the grandson would sleep alone with Allen.
Allen's daughter personally knew that Allen and his grandson
spent a lot of time together to "play bears," watch movies, and
play around both inside and outside. Allen's daughter also
learned from Allen that he and his grandson wrestled.
9 The Commonwealth contends that the totality of this
evidence provides the requisite slight corroboration of the
corpus delicti. We disagree.
No physical evidence of the corpus delicti exists. No
eyewitness testimony, outside of Allen's own confession,
supports an inference of the occurrence of any criminal
activity. To the extent that circumstantial evidence
establishes Allen's mere opportunity to commit the corpus
delicti, this is insufficient to provide slight corroboration.
See Caminade, 230 Va. at 509-11, 338 S.E.2d at 848-49 (mere
proximity to an alleged burglary is not sufficient
corroboration that defendant committed that burglary, even
though sufficient evidence corroborated defendant's admissions
to having committed other burglaries in the area, thereby
proving the corpus delicti of those other burglaries). The
Commonwealth must go further and "present evidence of such
circumstances as will, when taken in connection with the
confession, establish [the occurrence of] the corpus delicti
beyond a reasonable doubt." Watkins, 238 Va. at 349, 385
S.E.2d at 54.
The Commonwealth, relying upon the per curiam order
entered by the Court of Appeals, contends that the evidence
presented establishes more than mere opportunity. The
Commonwealth argues that the evidence of Allen sleeping alone
10 with his grandson, and Allen wrestling alone with his grandson,
provides the slight corroboration of the corpus delicti. But
for that to be true, those actions cannot be "just as
consistent with non-commission of [aggravated sexual battery]
as it is with its commission." Phillips, 202 Va. at 212, 116
S.E.2d at 285. Yet, the evidence of Allen's guilt independent
of his confession is just as consistent with non-commission of
aggravated sexual battery as with its commission.
A review of our precedent as set forth in Phillips
underscores this point. In that case, the defendant William
Phillips, on his own initiative, went to the City of Bristol
police station and voluntarily confessed to police officers to
having engaged in the criminal act of sodomy with a stranger,
Charles Campbell. Id. at 208-09, 116 S.E.2d at 283. As part
of his confession, Phillips explained that he picked up and
drove Campbell around in his car, engaged in the act of sodomy
with Campbell in that car, and then allowed Campbell to keep
possession of the car for the following day. Id. at 209, 116
S.E.2d at 283. However, Campbell continued to possess that car
for more than a day, and it was Campbell's refusal to return
the car to Phillips that prompted Phillips to go to the City of
Bristol police station. Id. at 208, 116 S.E.2d at 283.
Shortly after Phillips' confession, a deputy sheriff found and
11 arrested Campbell for possessing Phillips' car without
authorization. Id. at 209, 116 S.E.2d at 283.
Neither Phillips nor Campbell testified at their joint
trial on the charge of sodomy, and neither co-defendant's
statements were admissible against the other. Id. at 210, 116
S.E.2d at 284. The only evidence to corroborate Phillips'
extrajudicial confession was therefore Campbell's unauthorized
possession of Phillips' car. Id. at 210-11, 116 S.E.2d at 284-
85. However, Campbell's unauthorized possession of the car
only corroborated Phillips' admission "that he and Campbell
were in each other's presence at the time stated by Phillips in
his confession." Id. at 211, 116 S.E.2d at 285. Because
Campbell's "possession of the car [was] just as consistent with
non-commission of the [sodomy] offense as it [was] with its
commission," that evidence failed to corroborate the "truth of
the confession as to the corpus delicti—the fact that the crime
was actually committed." Id. at 212, 116 S.E.2d at 285.
Therefore, the additional evidence of Campbell's
unauthorized possession of Phillips' car supplied no probative
weight to whether sodomy was actually committed because the
independent evidence was just as consistent with the corpus
delicti not occurring as it was with the corpus delicti
occurring. Thus, Campbell's unauthorized possession of the car
12 could only corroborate the opportunity to commit the corpus
delicti.
As in Phillips, the additional evidence of Allen sleeping
alone with his grandson, and wrestling alone with his grandson,
is not slight corroboration of the commission of aggravated
sexual battery. The fact that a grandfather and his grandson
are sleeping on the same bed, or that a grandfather and his
grandson are wrestling, is just as consistent with aggravated
sexual battery not occurring as it is with aggravated sexual
battery occurring.
Thus, this additional evidence does nothing more than
establish the mere opportunity for Allen to commit the corpus
delicti. We therefore hold that the Commonwealth failed to
prove the slight corroboration of Allen's confession required
to establish the corpus delicti.
III. Conclusion
The Commonwealth was required to introduce evidence to
prove the corpus delicti of aggravated sexual battery.
Cherrix, 257 Va. at 305, 513 S.E.2d at 651. At trial, Officer
Dooley, Detective Poindexter, and Allen's daughter all
testified as to Allen's confession. Although this evidence is
sufficient to show that Allen confessed to aggravated sexual
battery, the Commonwealth is required to introduce independent
evidence that slightly corroborates the corpus delicti of
13 aggravated sexual battery. 5 Watkins, 238 Va. at 348, 385 S.E.2d
at 54. The testimony of Allen's daughter failed to provide
such independent evidence, and thus the circuit court's
judgment against Allen was without sufficient evidence to
support it. We will therefore reverse the order of the Court
of Appeals, vacate Allen's conviction for aggravated sexual
battery, and dismiss the indictment.
Reversed and final judgment.
JUSTICE McCLANAHAN, with whom JUSTICE MIMS joins, dissenting.
I. Introduction
It is well-established under Virginia law that when a full
confession is given by the accused, only slight corroboration
of the confession is necessary to establish the corpus delicti
of a crime beyond a reasonable doubt. Cherrix v. Commonwealth,
257 Va. 292, 305, 513 S.E.2d 642, 651 (1999). In this appeal,
we are required to consider the quantum of corroborating
evidence the Commonwealth must provide to clear this low
hurdle.
5 The Commonwealth argues that we should adopt a "trustworthiness" test to replace the slight corroboration requirement. See People v. LaRosa, 293 P.3d 567, 570 (Colo. 2013). We decline to do so.
14 The majority reasons that the corroborating evidence here,
testimony provided by Allen’s daughter which confirmed that
Allen spent time alone with his grandson, that Allen and his
grandson sometimes slept alone in Allen’s bed, and that the two
would sometimes wrestle together, did not satisfy the corpus
delicti of aggravated sexual battery because it established
nothing more than “mere opportunity” to commit the offense.
Despite the facts that Allen provided were a full and detailed
confession to police, and that the testimony provided by
Allen’s daughter confirmed that Allen and his grandson were in
the precise circumstances detailed in that confession, the
majority would require the Commonwealth to produce physical
evidence or eyewitness testimony to satisfy its burden. This
overly mechanical interpretation of the corpus delicti
requirement disregards the underlying purpose of the rule,
stretches this Court’s precedent to require more than slight
corroboration, and ignores practical realities about the nature
of the crime to which Allen confessed.
II. The Purpose of the Corpus Delicti Rule and the Slight Corroboration Requirement
As the majority correctly points out, Virginia has long
adhered to the common law rule that an uncorroborated
extrajudicial confession, standing alone, is insufficient to
establish the corpus delicti of a crime. Moore v. Commonwealth, 132 Va. 741, 745, 111 S.E. 128, 129 (1922).
Although “[e]xtrajudicial confessions of the accused are
competent evidence tending to prove the corpus delicti,” the
rule requires that “confession[s] must be corroborated in a
material and substantial manner by evidence aliunde 1 of the corpus delicti.” Phillips v. Commonwealth, 202 Va.
207, 211, 116 S.E.2d 282, 284 (1960). However, when the
accused has fully confessed to an offense, “only slight
corroboration of the confession is required to establish the
corpus delicti beyond a reasonable doubt.” Cherrix, 257 Va. at
305, 513 S.E.2d at 651. If the Commonwealth’s corroborative
evidence, “when taken in connection with the confession,
establish[es] the corpus delicti beyond reasonable doubt,” the
Commonwealth has satisfied its burden. Wheeler v. Commonwealth,
192 Va. 665, 669, 66 S.E.2d 605, 607 (1951), overruled on other
grounds by Watkins v. Commonwealth, 238 Va. 341, 351, 385
S.E.2d 50, 56 (1989). Additionally, “corroborative facts
supporting the corpus delicti may be furnished by
circumstantial evidence as readily as by direct evidence.”
Watkins, 238 Va. at 349, 385 S.E.2d at 54 (citing Epperly v.
Commonwealth, 224 Va. 214, 229, 294 S.E.2d 882, 891 (1982)).
Finally, this Court has held that corroborating evidence is not
1 Defined as "[f]rom another source; from elsewhere." Black's Law Dictionary 86 (9th ed. 2009).
16 required to support “all the contents of the confession, or
even all of the elements of the crime.” Id. at 348, 385 S.E.2d
at 54.
In applying this rule, it is important to consider its
underlying purpose. Since its inception in 17th Century
England, the corpus delicti rule has served one limited, yet
essential function: to guard against the danger of criminal
convictions based solely upon false confessions of guilt. 1
Kenneth S. Broun, McCormick on Evidence §145 at 237 (6th ed.
2006); 7 John H. Wigmore, Evidence in Trials at Common Law §
2070 at 510 (James H. Chadbourn ed. 1978). With the ultimate
goal of preventing this injustice, corroborating evidence is
required solely to ensure the accuracy of an accused’s
confession. See McCormick on Evidence § 145 at 237 (“Whether
considerations beyond accuracy can also support the requirement
is doubtful.”). For these purposes, this Court has considered
whether corroborative evidence adduced by the Commonwealth was
sufficient to indicate “the truth of [a defendant’s] confession
as to the corpus delicti – the fact that the crime was actually
committed.” Phillips, 202 Va. at 212, 116 S.E.2d at 285; See
also Powell v. Commonwealth, 267 Va. 107, 145, 590 S.E.2d 537,
560 (1987) (“Although the Commonwealth may not establish an
essential element of a crime by the uncorroborated confession
of the accused alone, 'only slight corroborative evidence' is
17 necessary to show the veracity of the confession.”) (citations
omitted).
The majority relies on Phillips to conclude that the
testimony given by Allen’s daughter was “just as consistent
with non-commission of the offense as it [was] with its
commission.” Id. at 212, 116 S.E.2d at 285. In Phillips, the
defendant confessed to committing sodomy with a stranger after
picking him up at a restaurant. Id at 208-09, 116 S.E.2d at
283. In his statement to police, Phillips also said that he
loaned his car to the stranger after the encounter. Id. Three
days later, Charles R. Campbell was stopped by an officer while
driving Phillips’ car. Id. Upon questioning, Campbell
admitted that he had met Phillips at the restaurant, but denied
that they had committed sodomy, claiming instead that Phillips
had made unwanted advances towards him, which he refused. Id.
at 209-10, 116 S.E.2d at 283-84. Campbell also told police
that he dropped Phillips at home and took his car. Id. The
only evidence offered by the Commonwealth as corroboration of
Phillips’ confession was that Campbell was found in possession
of Phillips’ car. Id. at 209, 211, 116 S.E.2d at 283, 285.
Ultimately, this Court held that “possession of Phillips’ car
corroborates Phillips’ statement that he and Campbell were in
each other’s presence at the time stated by Phillips in his
confession, yet it furnishes no corroboration that the actual
18 crime of sodomy for which Phillips was convicted was
committed.” Id. at 211, 116 S.E.2d at 285.
The circumstances detailed in Phillips are easily
distinguishable from the case at bar. In Phillips, both
defendants explained that they met at a restaurant, rode away
in Phillips’ car, and both stated that Campbell kept the car
after dropping Phillips off at home. What happened in the
interim, however, was a matter of dispute. Consequently,
Campbell’s possession of Phillips’ car was “just as consistent
with non-commission of the offense as . . . with its
commission” because both Campbell’s version of the story and
Phillips’ version of the story were equally likely to be true.
Id. at 212, 116 S.E.2d at 285. In other words, because
Campbell denied that he had committed sodomy with Phillips, the
veracity of Phillips’ confession was placed in doubt, and the
mere fact that Campbell was in possession of Phillips’ car
failed to corroborate the truth of [Phillips’] confession. See
id. at 212, 116 S.E.2d at 285.
In contrast, Allen’s confession in the instant case was
uncontroverted. Furthermore, the testimony given by Allen’s
daughter established that Allen was often left alone with his
grandson in Allen’s bedroom and that she was aware that the two
would sometimes wrestle. This corroborative evidence provided
more than a “coincidence of circumstances tending to indicate
19 guilt.” Id. at 211-12, 116 S.E.2d at 285. It detailed the
precise circumstances during which Allen told police that the
crime was committed.
The majority also cites Caminade v. Commonwealth, 230 Va.
505, 509-11, 338 S.E.2d 846, 848-49 (1986), for the proposition
that evidence establishing Allen’s mere opportunity to commit
the corpus delicti cannot provide the necessary slight
corroboration. This reliance is equally misplaced. In that
case, the defendant admitted to numerous burglaries in a
specific geographic area, but was unable to identify which
houses he had actually burglarized. Id. at 507-08, 338 S.E.2d
at 847. Caminade was convicted, inter alia, of three
burglaries, id. at 505, 338 S.E.2d at 846, and this Court
affirmed two of the convictions after review of corroborating
evidence with respect to those crimes. 2 In overturning
Caminade’s conviction for the third burglary, however, this
Court found that Caminade’s statements to police were
2 In addition to defendant’s admission that he was in the neighborhood committing burglaries “within a range of days which included the date of the offense,” the Commonwealth’s corroborating evidence for those two burglaries included signs that the homes in question had been broken into and the fact that property was missing. Additionally, in one case, the victims’ neighbor saw a car closely matching Caminade’s parked nearby and heard sounds consistent with breaking and entering coming from the home around the time that property was discovered missing. In the other, the amount of money stolen exactly matched the amount Caminade admitted he had taken from one of the homes he had targeted. Caminade, 230 Va. at 508-09, 338 S.E.2d at 848.
20 “admissions, not confessions, because they did not furnish all
facts necessary for conviction.” Id. at 510, 338 S.E.2d at 849.
Because the Commonwealth offered no evidence establishing “(1)
that an entry was actually made into the [third] house, and (2)
by a person having the requisite intent[, and] Caminade's
admissions could not supply these crucial elements because he
simply did not know which houses he had entered,” the corpus
delicti of the third burglary was not established. Id.
Although the statements “might [have] furnished circumstantial
evidence from which a fact finder might infer criminal agency,
after corpus delicti has been established by other evidence,
the admissions furnish[ed] no proof of corpus delicti in
themselves.” Id.
In contrast, in the present case Allen confessed to
touching his grandson’s genital area while his grandson was
sleeping. He also confessed that he allowed his grandson to
use his hands and feet to touch his erect penis while they were
wrestling. There is no doubt that, consistent with our
observation in Caminade, 230 Va. at 510, 338 S.E.2d at 849,
Allen’s statements to police constituted a full confession
because they “furnish[ed] all facts necessary for conviction”
for aggravated sexual battery as defined in Code §§ 18.2-67.3
and 18.2-67.10(6). Therefore, unlike the admissions by the
defendant in Caminade, Allen’s confession was “competent
21 evidence tending to prove the corpus delicti,” Phillips, 202
Va. at 211, 116 S.E.2d at 285, and only slight corroboration of
Allen’s confession was required for the Commonwealth to satisfy
its burden. Cherrix, 257 Va. at 305, 513 S.E.2d at 651.
As this Court has made clear, it is not necessary for the
Commonwealth’s corroborative evidence to support “all the
contents of the confession, or even of all the elements of the
crime.” Watkins, 238 Va. at 348, 385 S.E.2d at 54. Here, the
corroborative evidence did not, as the majority suggests,
merely establish “opportunity” or “geographic proximity.” The
testimony given by Allen’s daughter also established that she
was aware of physical contact between Allen and his grandson
when they wrestled on Allen’s bed. Thus, when taken in
connection with Allen’s full confession, this testimony
constituted slight corroboration that Allen committed
aggravated sexual battery against his grandson in the manner
that he described. See id.; Wheeler, 192 Va. at 669, 66 S.E.2d
at 607.
The majority requires what is functionally more than
slight corroboration to establish the corpus delicti in a case
where there is a victim who is too young to testify and no
physical evidence available, with an uncontroverted full
confession that is itself competent evidence of each element of
22 the corpus delicti. See Phillips, 202 Va. at 210-11, 116
S.E.2d at 284. I would hold that the corroborative testimony
provided by Allen’s daughter, taken in conjunction with Allen’s
uncontroverted full confession, provided the necessary slight
corroboration and established the corpus delicti of aggravated
sexual battery beyond a reasonable doubt. Therefore, I
dissent.