Lashawn Donnell Gordon v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: September 19, 2023
• Docket: 1056223
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA UNPUBLISHED

Present: Judges Raphael, Lorish and Callins Argued at Lexington, Virginia

LASHAWN DONNELL GORDON MEMORANDUM OPINION* BY v. Record No. 1056-22-3 JUDGE STUART A. RAPHAEL SEPTEMBER 19, 2023 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG J. Frederick Watson, Judge

Ronnie H. West (West Law Firm, PLC, on brief), for appellant.

Ken J. Baldassari, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Lashawn Donnell Gordon was convicted of one count of computer solicitation of a child,

one count of sexual abuse of a child, and two counts of taking custodial indecent liberties with a

child. Gordon claims that the trial court erred by admitting the victim’s hearsay statements to

corroborate her testimony about the sexual abuse she suffered. He also says that the evidence

failed to support the convictions. We disagree and affirm.

BACKGROUND

On appeal, we recite the facts “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 that we “discard”

the defendant’s evidence when it conflicts with the Commonwealth’s evidence, “regard as true

all the credible evidence favorable to the Commonwealth,” and read “all fair inferences” in the

* This opinion is not designated for publication. See Code § 17.1-413(A). Commonwealth’s favor. Cady, 300 Va. at 329 (quoting Commonwealth v. Perkins, 295 Va. 323,

324 (2018)).

In January 2020, when she turned 13, M.R. was living with her mother in Lynchburg.

M.R.’s cousin Nia lived nearby with her husband, Gordon, and their five children. Because of

her mother’s work schedule, M.R. went to Nia and Gordon’s house each morning, and Nia took

her to school. M.R. then returned to Nia’s house after school. M.R. often spent the night there

and occasionally did so on weekends. M.R. found herself alone at times with Gordon.

M.R. was at Nia’s house on January 23, 2020, her thirteenth birthday. As she followed

one of the younger children into the kitchen and bent over to pick him up, Gordon approached

M.R. from behind, “grabbed [her] butt and just walked off.” He did not say anything; he “just

smirked.”

A few weeks later, M.R. spent the night. As she sat on the sofa across from Gordon, she

noticed that he was “just looking at [her].” Gordon then exposed his penis and “started . . .

playing with it.” He stood up, approached M.R., and asked her to touch it. She refused.

About a week later, M.R. and Gordon were again sitting together on the sofa. Gordon

again exposed his penis, telling M.R. to touch it and suck it. She froze. But Gordon said, “it’s

okay,” and he promised not to tell anyone. With one hand on her back, Gordon nudged her

toward him, pushed her head to his lap, and put his penis in her mouth. M.R. didn’t want to do

it, but she was “scared” and “didn’t know what else to do,” so she “just did it,” giving him “oral

sex.” After about five minutes, M.R. pulled away. She wasn’t sure if Gordon had ejaculated.

She went to the bathroom, rinsed out her mouth, and cried. When she got back to the living

room, others had arrived. But M.R. said nothing about what just happened. She “didn’t know

what to say” and “didn’t know how people would react.” She felt “embarrassed.”

-2- In early March 2020, Gordon sent M.R. a Snapchat message saying, “I want you to

swallow this dick and take this dick from the back.” When M.R. screenshotted the message,

Gordon asked her to delete it.1 The messaging continued with M.R. writing, “I’m telling,” “this

ain’t right,” and “I feel bad.” Gordon answered, “we can stop,” and he repeatedly offered her

money to keep quiet. He insisted, “I’m not using u my word,” assuring her “No more worries I got

u,” and “You my lil dawg relax.” When M.R said, “Bro I’m 13 like what are you doing,” Gordon

replied, “Nothing at all.”

Gordon slipped money under M.R.’s door, but she left it sitting on the floor. When her

mother picked her up from Nia’s house, M.R. told her everything.

M.R. and her mother both testified at trial. Her mother recalled that M.R. texted her that

day in March, needing to be picked up “urgently.” Over Gordon’s objection, M.R.’s mother

recounted that M.R. showed her screenshots of Gordon’s messages and said that Gordon had

been “messing” with her. Although M.R. did not “go into detail at that moment,” her mother

remembered that M.R. cried and seemed “very sorrowful.”

M.R. was interviewed by Lynchburg Police Detective Sydney Olivier. Over Gordon’s

objection, Detective Olivier testified that M.R. described two incidents involving Gordon. The

first occurred at the end of January, when Gordon “grabbed her buttocks.” The second occurred

about a week later, when Gordon “placed his hand on the back of [M.R.’s] head and began

pushing her down” for “oral sex,” telling her “it was okay,” “it could be their secret,” and she

could “do it.”

Following those revelations, Gordon and his family relocated to Ohio. Detective Olivier

spoke with Gordon by phone in October 2020. Gordon denied M.R.’s allegations and claimed

1 M.R. explained at trial that when a person takes a screenshot of a Snapchat message, the sender is notified. -3- that his lewd Snapchat message was meant for another woman with whom he was having an

affair. Gordon did not explain M.R.’s reference to her age in the message, however, and he

admitted that the exchange was between him and M.R.

At the close of the Commonwealth’s case, Gordon moved to strike the evidence on

indictments one (forcible sodomy), three (sexual abuse of a child), and five (custodial indecent

liberties), but not indictment six (the second count of custodial indecent liberties). The trial court

dismissed the forcible-sodomy charge but overruled the motion to strike the remaining charges.

Testifying in his defense, Gordon denied the allegations, claiming that he had never

abused M.R. He said that his initial Snapchat message was intended for his mistress, not M.R.

He explained the rest of the message as an effort to bribe M.R. not to tell Nia that he was

cheating on her.

At the close of evidence, the trial court denied Gordon’s renewed motion to strike and

convicted him of sexual abuse of a child, computer solicitation of a child, and two counts of

custodial indecent liberties with a child. The court explained that it had “the opportunity to

observe the witnesses on the stand, to observe their demeanor and [to] make judgments about

their credibility.” The court found M.R.’s testimony to be “credible.” Gordon was sentenced to

14 years and 12 months’ imprisonment, with 7 years and 30 months suspended.

ANALYSIS

A. The trial court did not err in admitting the victim’s hearsay statements about the abuse (Assignments of Error 1-2).

Gordon argues that the trial court abused its discretion when it allowed M.R.’s mother

and Detective Olivier to recount M.R.’s out-of-court statements about Gordon’s misconduct.

Gordon claims that such hearsay was not admissible under any exception to the hearsay rule.

We disagree.

-4- Code § 19.2-268.2 provides that “in any prosecution for criminal sexual assault . . . the

fact that the person injured made complaint of the offense recently after commission of the

offense is admissible, not as independent evidence of the offense, but for the purpose of

corroborating the testimony of the complaining witness.” “[T]he ‘only time requirement is that

the complaint have been made without a delay [that] is unexplained or is inconsistent with the

occurrence of the offense.’” Wilson v. Commonwealth, 46 Va. App. 73, 84 (2005) (quoting

Woodard v. Commonwealth, 19 Va. App. 24, 27 (1994)). Whether the statement satisfies the

“timeliness” requirement “is committed to the sound discretion of the trial court, and thereafter,

timeliness is a matter for the trier of fact to consider in weighing the evidence.” Id. (quoting

Woodard, 19 Va. App. at 27).

The delay here was not long. The first incident occurred on M.R.’s birthday on January

23, and she told her mother everything in early March, less than two months later. M.R.’s

receiving Gordon’s lewd Snapchat message led her to report the abuse.

Moreover, the evidence sufficed to explain that relatively brief delay. M.R. did not tell

anyone at first that Gordon had made her perform oral sex because she “didn’t know how to,”

“didn’t know what to say,” and “didn’t know how people would react.” She felt “embarrassed.”

She told her sister not to tell anyone because she was “scared” and wanted to handle it herself.

Those are perfectly understandable hesitations by a 13-year-old child who was being sexually

abused by a member of her extended family.

Gordon’s suggestion that M.R. should have reported the incidents sooner also rings

hollow when he himself was pressuring her not to tell anyone. Not only was the brief period

between the earlier incidents and M.R.’s report adequately explained, it was significantly shorter

than in other cases upholding the admission of the victim’s out-of-court statements under Code

§ 19.2-268.2. See, e.g., Brown v. Commonwealth, 37 Va. App. 169, 174 (2001) (“[T]he delay of

-5- approximately two years was sufficiently explained and provided an adequate foundation for the

admission of the child’s complaint.”); Terry v. Commonwealth, 24 Va. App. 627, 635-36 (1997)

(finding statement admissible where the child “did not tell her mother about the rape until ten

months later” but adequately “explained the reasons for the delay”). Given M.R.’s

“impressionable age, the ongoing nature of the abuse, and the family relationship between the

parties, [her] explanation [was] eminently reasonable.” Wilson, 46 Va. App. at 85.

B. The evidence sufficed to convict on all counts (Assignments of Error 3-5).

Gordon argues that the evidence was insufficient to support his convictions. “When

reviewing the sufficiency of the evidence, ‘[t]he judgment of the trial court is presumed correct

and will not be disturbed unless it is plainly wrong or without evidence to support it.’”

McGowan v. Commonwealth, 72 Va. App. 513, 521 (2020) (alteration in original) (quoting Smith

v. Commonwealth, 296 Va. 450, 460 (2018)). “The relevant issue on appeal is, ‘upon review of

the evidence in the light most favorable to the prosecution, whether any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.’” Lambert v.

Commonwealth, 298 Va. 510, 515 (2020) (quoting Pijor v. Commonwealth, 294 Va. 502, 512

(2017)).

1. Sexual Abuse of a Child

Under Code § 18.2-67.4:2, “[a]ny adult who, with lascivious intent, commits an act of

sexual abuse, as defined in § 18.2-67.10, with any child 13 years of age or older but under 15

years of age is guilty of a Class 1 misdemeanor.” Code § 18.2-67.10(6) defines sexual abuse as:

[A]n act committed with the intent to sexually molest, arouse, or gratify any person, where:

a. The accused intentionally touches the complaining witness’s intimate parts or material directly covering such intimate parts; [or]

-6- b. The accused forces the complaining witness to touch the accused’s, the witness’s own, or another person’s intimate parts or material directly covering such intimate parts . . . .

“‘Intimate parts’ means the genitalia, anus, groin, breast, or buttocks of any person, or the chest

of a child under the age of 15.” Code § 18.2-67.10(2).

Gordon argues that the evidence was insufficient to prove that he committed an act of

sexual abuse on M.R. during the time frame alleged in Indictment 3: between February 1 and

February 28, 2020. As to that time frame, he says that M.R.’s testimony established only that

she “saw [his] penis” and there was “no evidence of any touching whatsoever.”

Even assuming that the third incident in which Gordon forced M.R. to perform oral sex

occurred in March 2020, not February, it would not invalidate the conviction. An indictment that

imperfectly states the date of the offense is not invalid when, as here, “time is not the essence of

the offense.” Code § 19.2-226(6). When “[t]he question . . . is not who committed the crime,

but whether the crime charged . . . was committed,” a precise time is not essential. Farhoumand

v. Commonwealth, 288 Va. 338, 352-53 (2014).2 Gordon, for instance, did not dispute that M.R.

frequently visited his home, nor did he assert “[a]n alibi-based defense.” Id. at 352.

In short, the evidence sufficed to prove sexual abuse of a child.

2. Computer Solicitation of a Child

Code § 18.2-374.3(C)(3) makes it a crime for an adult “to use . . . electronic means[] for

the purpose[] of soliciting . . . a child younger than 15 years of age to knowingly and

intentionally . . . [p]ropose to such child the performance of an act of sexual intercourse, anal

intercourse, cunnilingus, fellatio, or anilingus . . . .” The statute criminalizes “the incitement to

2 In “a felony case the Commonwealth may prove the commission of a crime charged on a date different from that alleged in the indictment.” Farhoumand, 288 Va. at 351 (emphasis added) (quoting Harris v. Commonwealth, 185 Va. 26, 34 (1946)). Because Code § 19.2-226(6) is not limited to felony prosecutions, however, the same principle applies to misdemeanor prosecutions. -7- act illegally rather than actually committing the illegal act. Thus, . . . the defendant’s solicitation

of sexual behavior from a person that he believes is a child constitutes the behavior that the

legislature intended to prohibit.” Grafmuller v. Commonwealth, 57 Va. App. 58, 63-64 (2010).

Gordon concedes that “there was evidence at trial” that he used a communication system

to “interact with [M.R.] after the [offenses] occurred.” But he argues that the evidence was

insufficient to prove that the system was used “to solicit or request” any act prohibited by the

statute. In essence, he argues that he did not “[p]ropose” a prohibited sex act within the meaning

of Code § 18.2-374.3(C).

Because the statute does not define the term propose, we “give it its ordinary meaning.”

Moyer v. Commonwealth, 33 Va. App. 8, 35 (2000) (en banc); see also Eberhardt v.

Commonwealth, 74 Va. App. 23, 32 (2021) (“An undefined term in a statute may be defined

using its standard dictionary definition.”). The word propose means to “form or declare a plan or

intention”; “set before the mind”; “offer for consideration, discussion, acceptance, or adoption”;

or “set up or declare as a formed purpose.” Propose, Webster’s Third New Int’l Dictionary

(1981).

We fail to see what else Gordon could have had in mind—other than to propose a sex

act—when he messaged M.R., “I want you to swallow this dick and take this dick from the

back.” A reasonable trier of fact could view that as an “offer” to engage in fellatio and

intercourse; to “set” those ideas “before [M.R.’s] mind”; and to put forward those sex acts “for

consideration, discussion, acceptance, or adoption.” Webster’s, supra. That inference is also

consistent with the context, as Gordon sent this prurient message to a 13-year-old girl he had

already strong-armed into performing fellatio. The trial court’s finding was therefore not plainly

wrong or without evidence to support it. The evidence sufficed to prove computer solicitation of

a child.

-8- 3. Custodial Indecent Liberties

Under Code § 18.2-370.1, any adult who “maintains a custodial or supervisory

relationship over a child under the age of 18 . . . [and] who, with lascivious intent, knowingly

and intentionally . . . sexually abuses the child . . . is guilty of a Class 6 felony.” Sexual abuse is

defined in part as the touching of a “complaining witness’s intimate parts or material directly

covering such intimate parts,” which include the “buttocks of any person.” Code § 18.2-67.10.

“[L]ascivious” intent means “a state of mind that is eager for sexual indulgence, desirous of

inciting to lust or of inciting sexual desire and appetite.” Moyer, 33 Va. App. at 28 (quoting

McKeon v. Commonwealth, 211 Va. 24, 27 (1970)).

Gordon argues that the Commonwealth failed to prove that he took indecent liberties while

in a custodial relationship with M.R. between January 20 and January 30, 2020, as alleged in

Indictment 5.3 He says that there was no evidence that the touching of M.R.’s buttocks was

“intentional” or “of a sexual nature.”

The evidence supports the trial court’s conclusion that Gordon grabbed M.R.’s buttocks

intentionally and in “a state of mind . . . eager for sexual indulgence.” Moyer, 33 Va. App. at 28.

“Intent, like any element of a crime, may, and usually must, be proved by circumstantial evidence

such as a person’s conduct and statements. The statements and conduct of an accused after the

events that constitute the charged crime may also be relevant circumstantial evidence of intent.”

Simon v. Commonwealth, 58 Va. App. 194, 206 (2011). “While no single piece of evidence may be

sufficient, the ‘combined force of many concurrent and related circumstances, each insufficient in

itself, may lead a reasonable mind irresistibly to a conclusion [of guilt].’” Rams v. Commonwealth,

3 Gordon does not contest that he took custodial indecent liberties between February 3 and February 28, 2020, as alleged in the indictment for that offense. -9- 70 Va. App. 12, 37 (2019) (alteration in original) (quoting Stamper v. Commonwealth, 220 Va. 260,

273 (1979)).

M.R. testified that Gordon grabbed her buttocks on her birthday. He did not apologize or

say it was accidental; he “smirked” and walked away. About three weeks later, he pulled out his

penis and told M.R. to touch it. Then about a week after that, he forced M.R. to touch his penis

before making her perform oral sex. Later, Gordon sent M.R. a Snapchat message conveying his

desire for oral sex and intercourse. These facts, viewed in their entirety, support the trial court’s

conclusion that Gordon possessed the requisite intent when he grabbed M.R.’s buttocks on her

thirteenth birthday. See, e.g., Commonwealth v. Minor, 267 Va. 166, 176 (2004) (“[E]vidence of

other offenses of like character is admissible in prosecutions for crime involving a depraved sexual

instinct.” (quoting Lovely v. United States, 169 F.2d 386, 390 (4th Cir. 1948))).

CONCLUSION

None of Gordon’s arguments warrants reversing his convictions.

Affirmed.

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