Kevin Nathan Mettinger v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: August 27, 2024
• Docket: 1718234
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Malveaux, Raphael and Frucci UNPUBLISHED

Argued at Arlington, Virginia

KEVIN NATHAN METTINGER MEMORANDUM OPINION* BY v. Record No. 1718-23-4 JUDGE STEVEN C. FRUCCI AUGUST 27, 2024 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FAUQUIER COUNTY Matthew P. Snow, Judge

Ryan D. Ruzic, Public Defender, for appellant.

Katherine Quinlan Adelfio, Senior Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Following a jury trial, Kevin Nathan Mettinger was convicted of two counts of carnal

knowledge of a child and two counts of indecent liberties with a child by a custodian or supervisor.

The circuit court sentenced Mettinger to 30 years of imprisonment with 20 of those years

suspended. On appeal, Mettinger argues that the circuit court erred in overruling his objections to

certain evidence and that the evidence was insufficient to support his convictions. Finding no error,

we affirm the circuit court’s judgment.

I. BACKGROUND

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

Clanton v. Commonwealth, 53 Va. App. 561, 564 (2009) (en banc) (quoting Commonwealth v.

Hudson, 265 Va. 505, 514 (2003)). That principle requires us to “discard the evidence of the

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

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

Commonwealth, 41 Va. App. 250, 254 (2003) (en banc) (quoting Watkins v. Commonwealth, 26

Va. App. 335, 348 (1998)).

In 2019, when S.H.1 was entering the seventh grade, his parents contacted Mettinger about

tutoring him in math. S.H.’s parents were well acquainted with Mettinger from previous tutoring

programs that S.H. had attended. Mettinger agreed and, until the COVID-19 pandemic began,

tutored S.H. at his home twice per week.

Mettinger tutored S.H. online during the pandemic, but he resumed in-person sessions with

S.H. in March of 2021. Often, Mettinger would pick up S.H. from his bus stop after school and

drive him to S.H’s house for the tutoring sessions. S.H. was then 14 years old, in the eighth grade,

and an “innocent and trusting” child. S.H.’s parents trusted Mettinger “absolutely” and considered

him “a part of [the] family.”

After a tutoring session in May 2021, Mettinger touched S.H.’s leg while they were

watching television together. S.H. fell asleep, but, when he awakened, Mettinger was touching his

buttocks. S.H. thought that Mettinger had done this intentionally and that it was “weird.”

In June 2021, Mettinger arranged with S.H.’s parents for him to help with cleaning chores at

Mettinger’s house. On four occasions that month—June 10, 15, 22, and 24—Mettinger picked up

S.H. at his house for the agreed cleaning sessions and drove him home afterward.2

On June 10, 2021, after arriving at Mettinger’s house and plugging in his phone, S.H. turned

around to see Mettinger without his pants or underwear. At Mettinger’s instruction, S.H. removed

1 We use initials, rather than names, to better protect the privacy of the witnesses mentioned in this opinion. 2 In a text message to S.H.’s mother, after the first session on June 10, 2021, Mettinger mentioned that he would be late bringing S.H. home because “a contractor stopped by to talk . . . about an electrical job in [his] basement.” On June 15, 2021, Mettinger thanked S.H.’s mother for loaning him a “great worker.” Mettinger asked her for S.H.’s help on June 22 and on June 24, 2021. -2- his own pants. Sitting beside S.H., and using a flat hand, Mettinger stroked S.H.’s penis outside his

underwear. The touching lasted for an hour, until an alarm on Mettinger’s phone sounded.

Mettinger and S.H. put on their clothes again and began cleaning. During a “break,” Mettinger

again had S.H. remove his pants and rubbed S.H.’s penis for an hour. After several hours of

cleaning and that “break,” Mettinger drove S.H. home.

On June 15, 2021, when S.H. arrived at Mettinger’s home to clean, Mettinger immediately

removed his own pants and then removed S.H.’s pants and underwear. Mettinger touched S.H.’s

penis, masturbating him. Mettinger then ordered S.H. to “sit on his face” to “eat him out.” With

Mettinger laying on the couch, he used his lips and tongue to touch S.H.’s anus. At the same time,

Mettinger had S.H. touch his penis until Mettinger ejaculated. S.H. observed that Mettinger’s penis

was unusual in that it “came out” of a “hole,” resembling an “innie belly button.” Mettinger took

S.H. home after cleaning for a while.

On June 22, 2021, while at Mettinger’s home, Mettinger again had S.H. “sit on his face.”

The sexual assault ended when the timer on Mettinger’s phone sounded.

On June 24, 2021, S.H. went to Mettinger’s house after they went to the Frost Diner

together. Along with having S.H. “sit on his face,” Mettinger suggested “edging” S.H. Using a

cupped hand, Mettinger rubbed S.H.’s penis to the point of orgasm, stopped, and then started it

again. Eventually, S.H. ejaculated into Mettinger’s hand. Mettinger tasted the ejaculate and said it

was “sweet.” Mettinger “ate him out” again and licked his feet.

S.H. did not report the sexual abuse because Mettinger told him that he should not.

Mettinger said that “he could go to jail and that’s where bad people go.” In addition, S.H. continued

to return to Mettinger’s house in June of 2021 because he wanted to earn the money Mettinger paid

him for cleaning. As for his sexual orientation, Mettinger said that he was “gay” and that he could

be S.H.’s “mentor.” Mettinger also said he wanted to have sex with S.H. when he turned 18.

-3- On June 26, 2021, after discussing the abuse with his good friend, S.H. approached his

parents. S.H. reported that Mettinger had sexually assaulted him, and S.H.’s parents called the

police.

The police went to Mettinger’s home with a search warrant on June 29, 2021; he was naked

when the police arrived. In a conversation with the police, Mettinger said that he knew S.H. and

that S.H. was 14 years old. Mettinger stated that he had paid S.H. to help clean the house.

Mettinger said that during the sessions he and S.H. would work and “take breaks.” At first,

Mettinger lied about the location of his phone, and the police could not find it. But after the police

advised that they would not leave without the phone, Mettinger led them to where it was hidden in a

doorway to the basement.

As Exhibit 12, the Commonwealth introduced text messages exchanged by Mettinger and

Jeremy Wilk, a home contractor, from April 8 to June 29, 2021. In the messages, Mettinger

expressed frustration with the contractor’s delay in getting to and completing some projects at

Mettinger’s home. On June 6, 2021, Mettinger said he would leave the door of the house open so

Wilk could get in to work anytime. Mettinger arranged for Wilk to come to the house to plan the

work on June 10, 2021. Mettinger mentioned that he had a “kid” coming to help with some house

cleaning and that he was 14 years old. On June 14, 2021, Mettinger asked to rearrange the

contractor’s schedule to accommodate his house cleaning session for the next day. Mettinger also

asked the contractor to reschedule work at the house on June 22 and June 24, 2021.

At trial, over Mettinger’s objection, the circuit court admitted three nude photographs of

Mettinger as Commonwealth’s Exhibit 9. The Commonwealth asserted that the photos showed that

Mettinger had a “buried,” or “inverted,” penis, as S.H. had described in his testimony. The circuit

court ruled that the probative value of the photographs outweighed any unfair prejudice, overruled

the objection, and admitted them.

-4- II. ANALYSIS

A. The circuit court did not abuse its discretion in admitting Commonwealth’s Exhibits 9 and 12.

Citing principles relating to the relevance and probative value of evidence, Mettinger

contends that the circuit court erred in admitting Commonwealth’s Exhibits 9 and 12. “The manner

in which a trial is ‘conduct[ed] . . . is committed to the trial judge’s discretion.’” Hicks v.

Commonwealth, 71 Va. App. 255, 270 (2019) (alterations in original) (quoting Breeden v.

Commonwealth, 43 Va. App. 169, 185 (2004)). “A ‘circuit court’s decision to admit or exclude

evidence’ is also reviewed ‘under an abuse of discretion standard.’” Id. (quoting Herndon v.

Commonwealth, 280 Va. 138, 143 (2010)). A circuit court “can abuse its discretion in three

ways: (1) by failing to consider a relevant factor that should have been given significant weight,

(2) by considering and giving significant weight to an irrelevant or improper factor, and (3) when

the . . . court, while weighing ‘all proper factors,’ commits a clear error of judgment.” Fields v.

Commonwealth, 73 Va. App. 652, 672 (2021) (quoting Lawlor v. Commonwealth, 285 Va. 187,

213 (2013)). “In evaluating whether a trial court abused its discretion . . . , ‘we do not substitute

our judgment for that of the trial court. Rather, we consider only whether the record fairly

supports [that] action.’” Hicks, 71 Va. App. at 270 (alterations in original) (quoting Grattan v.

Commonwealth, 278 Va. 602, 620 (2009)). “Only when reasonable jurists could not differ can

we say an abuse of discretion has occurred.” Id. (quoting Thomas v. Commonwealth, 44

Va. App. 741, 753, adopted upon reh’g en banc, 45 Va. App. 811 (2005)).

Commonwealth’s Exhibit 12

Mettinger argues that the circuit court erred in admitting Commonwealth’s Exhibit 12,

the text messages between him and Wilk. He maintains that the exhibit was irrelevant. Evidence

“is relevant if it has any logical tendency, however slight, to establish a fact at issue in the case

[and] . . . material if it relates to a matter properly at issue in the case.” Castillo v.

-5- Commonwealth, 70 Va. App. 394, 462 (2019) (alterations in original) (quoting Cousins v.

Commonwealth, 56 Va. App. 257, 271 (2010)); see also Va. R. Evid. 2:401 (defining relevant

evidence as “evidence having any tendency to make the existence of any fact in issue more

probable or less probable than it would be without the evidence”). “All relevant evidence is

admissible” unless otherwise provided by statute, rule, or evidentiary principle. Va. R. Evid.

2:402.

To establish that Mettinger violated Code § 18.2-370.1, as charged in the indictments, the

Commonwealth had to prove that S.H. was under the age of 18. See Code § 18.2-370.1(A)

(requiring, among other things, that the victim was under the age of 18 for a conviction of taking

indecent liberties). In one of the messages to the contractor, Mettinger mentioned that his

cleaning helper was 14. Thus, the text message about S.H.’s age tended to prove Mettinger’s

guilt of taking indecent liberties under Code § 18.2-370.1.

In addition, the tenor of the messages conveyed that Mettinger was displeased and

frustrated by the contractor’s failure to come to his house and complete projects promptly. But

despite his stated wish to have the projects completed, on the dates that S.H. was scheduled to

help Mettinger clean at the house, Mettinger postponed the contractor’s visits. Thus, the

messages tended to show Mettinger’s desire to hide his criminal conduct with the child and his

consciousness of his guilt. Commonwealth’s Exhibit 12 was therefore relevant to issues in the

case, and the circuit court did not abuse its discretion in admitting it.

Commonwealth’s Exhibit 9

Mettinger argues that the circuit court erred in admitting Commonwealth’s Exhibit 9, the

photographs showing his genitalia. He maintains that, even if relevant, the photographs were

unduly prejudicial.

-6- Under Virginia Rule of Evidence 2:403(a)(i), relevant evidence may be excluded if “the

probative value of the evidence is substantially outweighed by . . . the danger of unfair prejudice

. . . .” “All evidence tending to prove guilt is prejudicial to an accused, but the mere fact that

such evidence is powerful because it accurately depicts the gravity and atrociousness of the

crime or the callous nature of the defendant does not thereby render it inadmissible.” Powell v.

Commonwealth, 267 Va. 107, 141 (2004). A circuit court must determine whether “the

probative value of the evidence [is] substantially outweighed by . . . the danger of unfair

prejudice.” Lee v. Spoden, 290 Va. 235, 251 (2015) (second alteration in original). To be

considered “unfairly prejudicial,” evidence must “inflame the passions of the trier of fact, or . . .

invite decision based upon a factor unrelated to the elements of the claims and defenses in the

pending case.” Id. “It is well-settled that ‘[t]he responsibility for balancing the competing

considerations of probative value and prejudice rests in the sound discretion of the circuit

court.’” Walker v. Commonwealth, 302 Va. 304, 320 (2023) (quoting Ortiz v. Commonwealth,

276 Va. 705, 715 (2008) (alteration in original)). Notably, “the mere fact that evidence is highly

prejudicial to a party’s claim or defense is not a proper consideration in applying the balancing

test.”3 Lee, 290 Va. at 252.

In the case at hand, the photographs of Mettinger revealed abnormality in the structure of

his genitalia. S.H. testified that he saw Mettinger’s penis during the sexual abuse and that it was

3 Due to the strength of the evidence in showing guilt, direct evidence, such as eyewitness testimony, can often be highly prejudicial to a party’s claim or defense, but it “is rarely subject to exclusion on the ground that it would be unduly prejudicial.” Powell, 267 Va. at 141. “The requirement under Rule 2:403 that only ‘unfair’ prejudice may be considered reflects the fact that all probative direct evidence generally has a prejudicial effect to the opposing party.” Lee, 290 Va. at 251 (emphasis added) (internal citations omitted). As mentioned above, “unfair prejudice” relates “to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged.” Old Chief v. United States, 519 U.S. 172, 180 (1997). As such, the proper consideration is not how highly prejudicial the evidence, but how unfair or how much it has “an undue tendency to suggest decision on an improper basis.” See id. -7- unusual in appearance. S.H. said that Mettinger’s penis extended from “a hole” and resembled

an “innie belly button.” From viewing the photographs of Mettinger’s body, the jury could

conclude that S.H. had seen Mettinger’s penis and that S.H’s description was accurate, thus

enforcing the credibility of his testimony. While the evidence is “highly” prejudicial because it

drives home the victim’s description of Mettinger’s genitalia, it strains credulity to find how such

evidence could be “unfair.” Certainly, such evidence is embarrassing, but it’s far from the type

of evidence that could stir emotions within a jury and lead them to convict for a reason other than

the evidence presented relating to the crime. Lee, 290 Va. at 252.

“Given the deference we accord to trial judges in balancing probative value with undue

prejudice, we conclude that the circuit court did not abuse its discretion in weighing the

probative nature of” the photographs against “any risk of undue prejudice.” Walker, 302 Va. at

321. We find no abuse of discretion in the circuit court’s decision to admit Commonwealth’s

Exhibit 9.

B. Mettinger defaulted his claim that S.H. was inherently incredible.

While not specifically addressing any element of the offenses, Mettinger challenges the

sufficiency of the evidence to support his convictions by arguing generally that S.H.’s testimony

was inherently incredible and unworthy of belief. The Commonwealth argues that Mettinger did

not preserve this issue for appellate review.

“No ruling of the trial court . . . will be considered as a basis for reversal unless an

objection was stated with reasonable certainty at the time of the ruling, except for good cause

shown or to enable this Court to attain the ends of justice.” Rule 5A:18. “The purpose of th[e]

contemporaneous objection requirement [in Rule 5A:18] is to allow the circuit court a fair

opportunity to resolve the issue at trial, thereby preventing unnecessary appeals and retrials.”

Creamer v. Commonwealth, 64 Va. App. 185, 195 (2015). Virginia circuit court judges are a

-8- resilient lot; a specific and timely objection will often result in judicial self-correction by making

rulings that protect the litigants from potential error in real time, thereby eliminating even the

need for an appeal. See Brown v. Commonwealth, 279 Va. 210 (2010). As such, “a specific

argument must be made to the trial court at the appropriate time, or the allegation of error will

not be considered on appeal.” Edwards v. Commonwealth, 41 Va. App. 752, 760 (2003) (en

banc). “[M]aking one specific argument on an issue does not preserve a separate legal point on

the same issue for [appellate] review.” Hicks, 71 Va. App. at 266 (second alteration in original)

(quoting Johnson v. Commonwealth, 58 Va. App. 625, 637 (2011)). Furthermore, “[a] general

argument or an abstract reference to the law is not sufficient to preserve an issue [for appellate

review].” Edwards, 41 Va. App. at 760 (citing Buck v. Commonwealth, 247 Va. 449, 452-53

(1994); Scott v. Commonwealth, 31 Va. App. 461, 464-65 (2000)).

In this case, in his motion to strike the evidence, Mettinger merely stated “what we have

here is basically a ‘he said/he said case.’” Pointing out that Mettinger claims a different version

of events from S.H. is not the same as arguing that S.H.’s testimony was inherently incredible as

a matter of law such that it was “unworthy of belief or that the jury should not be permitted to

weigh [S.H.’s] credibility.” Commonwealth v. Bass, 292 Va. 19, 33 (2016); see Ray v.

Commonwealth, 74 Va. App. 291, 306-07 (2022). Accordingly, Mettinger failed to preserve

these issues for appellate review. Rule 5A:18. Although there are exceptions to Rule 5A:18,

Mettinger has not invoked them, and we do not do so sua sponte. Spanos v. Taylor, 76 Va. App.

810, 827-28 (2023).

III. CONCLUSION

For the foregoing reasons, we affirm the circuit court’s judgment.

Affirmed.

-9-