James Abriel Gushwa v. Commonwealth of Virginia

CourtCourt of Appeals of Virginia
DecidedApril 23, 2024
Docket1610222
StatusUnpublished

This text of James Abriel Gushwa v. Commonwealth of Virginia (James Abriel Gushwa v. Commonwealth of Virginia) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
James Abriel Gushwa v. Commonwealth of Virginia, (Va. Ct. App. 2024).

Opinion

COURT OF APPEALS OF VIRGINIA UNPUBLISHED

Present: Judges Causey, Lorish and White Argued at Salem, Virginia

JAMES ABRIEL GUSHWA MEMORANDUM OPINION* BY v. Record No. 1610-22-2 JUDGE KIMBERLEY SLAYTON WHITE APRIL 23, 2024 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ORANGE COUNTY David B. Franzen, Judge

S. Page Higginbotham III (Higginbotham & Reid, PLC, on briefs), for appellant.

Lauren C. Campbell, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Following a bench trial, James Abriel Gushwa was convicted in the Circuit Court of Orange

County of one count of rape, in violation of Code § 18.2-61. On appeal, Gushwa asserts that the

trial court erred by (1) denying his motion for admission of rape shield evidence, (2) refusing to

grant his motion for a mistrial, and (3) finding the evidence sufficient to support his conviction for

rape. For the following reasons, we disagree with Gushwa’s assertions and affirm the court below

on all issues.

BACKGROUND

On appeal, we review the evidence “in the ‘light most favorable’ to the Commonwealth, the

prevailing party in the trial court.” Hammer v. Commonwealth, 74 Va. App. 225, 231 (2022)

(quoting Commonwealth v. Cady, 300 Va. 325, 329 (2021)). Doing so requires us to “discard the

evidence of the accused in conflict with that of the Commonwealth, and regard as true all the

* This opinion is not designated for publication. See Code § 17.1-413(A). credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom.”

Cady, 300 Va. at 329 (quoting Commonwealth v. Perkins, 295 Va. 323, 324 (2018)).

Gushwa was a regular customer at a Sheetz store in Orange County where S.S.1 worked. In

August 2019, Gushwa told S.S. that he was recently involved in a motorcycle accident and was

feeling suicidal. To show support for Gushwa, S.S. visited him at his apartment. She sat on the

floor and played with Gushwa’s two orange tabby kittens as she and Gushwa talked about life and

the troubles he had had. Gushwa told her that he had been molested as a child and that he had killed

his molester and buried him in a park. Gushwa also said he had cancer. Gushwa showed S.S.

several bruises he sustained in the motorcycle accident, which included a bruised groin. Later he

offered her Zantac and Oxycontin which she declined.

When Gushwa put his hand out to pick S.S. up from the floor, she said “no” and refused to

stand up. After trying three times, Gushwa convinced S.S. to stand up and then pulled her to him to

kiss her. As he put his tongue in her mouth, S.S. pulled away, but Gushwa pushed her toward his

bedroom and continued to kiss her against her wishes.

When S.S. had a panic attack, Gushwa asked her if she wanted to lie down on his bed. S.S.

laid on his bed curled into a ball. Gushwa reclined on the bed behind her, put his hands down her

pants, and tried to touch her between her legs. S.S. pressed her legs together as hard as she could,

but Gushwa pulled her legs apart and removed her pants. S.S. cried as Gushwa penetrated her

vagina with his penis, and she nodded her head “yes” when he asked if she wanted him to stop.

Gushwa stopped momentarily, but then continued and told her to “ride” him. S.S. tried to crawl

away, but he grabbed her and pulled her back. S.S. then just stared at Gushwa’s snake terrarium

1 We refer to the complaining witness by her initials to maintain her privacy. -2- and “wait[ed] for him to be done.” S.S. did not consent to intercourse and “just wanted to be left

alone.”

Gushwa stopped when S.S. received a phone call from her husband, who was concerned

about her safety. S.S. did not tell her husband about what occurred because she said it would hurt

him. As she stood up from the bed, Gushwa said that she “had made things happen that the doctor

said would not be possible,” namely, “to get aroused and have erections and have sex.”

After the incident, S.S. returned to work at Sheetz and acted like everything was normal.

Following her night shift, S.S. called her best friend, Amairany Quinonez, and reported that she

thought she had been raped. When Quinonez suggested that S.S. report the matter to the police, S.S.

responded that she “just wanted to go home and pretend that none of it happened.” S.S. did not talk

about the incident again for a long time. In the meantime, her personality changed from “bubbly

[and] friendly” to angry and scared. Feeling isolated, she did not talk or smile, and she was no

longer nice to the customers. It was only after someone began calling Sheetz on a regular basis in

2020 asking for S.S.’s work schedule that S.S. reported the incident to a co-worker, Michelle

Sorensen, who later helped her contact the police.

On cross-examination, S.S. admitted that she had taken marijuana to Gushwa’s residence on

the day of the offense and that she and Gushwa “probably could have” smoked some. She also

admitted that she took medication for anxiety and depression. She conceded that the marijuana and

anxiety medication altered her mood. She also conceded that during the incident she did not say

“no,” but she explained that she had a “freeze” response. Her instinct was to “just let him do what

he wanted.” After the incident, Gushwa texted her, asking if she enjoyed herself, and she responded

that she did not want to do it. She then deleted his phone number and blocked him on her phone.

Later, she asked her husband to burn the clothes she was wearing at the time of the incident because

they “made [her] remember” the assault.

-3- Before trial, Gushwa filed a written motion seeking the admission of statements S.S. made

to police that purportedly fell under the rape shield statute. The motion alleged that the evidence

would be offered to support Gushwa’s contention that S.S. had a motive to fabricate the charge. At

a hearing on the motion, Gushwa proffered that S.S. told police “this was not the first time that she

had been raped, but it was the first time that she was reporting a rape,” and he argued that the rape

shield statute did not protect that statement because it was “quite possible that she is taking out any

sort of frustration, anger, any sort of animosity that she has to someone else on the defendant,”

giving her a motive to fabricate. Gushwa also proffered that S.S. explained to police that when she

reported the prior rape allegation to her sister, her sister responded, “well, [S.S.], I know how you

get when you get depressed, are you sure that you just didn’t regret it afterwards.” S.S. responded,

“why the f--- would the police believe me if my own family can’t.” Gushwa concluded, “so, if you

combine that statement, the fact that her sister and her family don’t believe her with the fact that

she’s made prior allegations, I think that there’s at least the reasonable probability of a falsity in that

prior statement. I think I should be able to cross-examine her on those.”

The trial court viewed the bodycam footage capturing S.S.’s statements to police and found

that they were protected by the rape shield law and that they did not support an assertion she had a

motive to fabricate.2 The trial court denied the motion to admit S.S.’s statements at trial.

At trial the Commonwealth presented witnesses, in addition to S.S., in their case-in-chief.

Quinonez testified that she received a call from S.S. during the early morning hours one day in

August 2019.

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