COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, O’Brien and Athey UNPUBLISHED
Argued at Fredericksburg, Virginia
RICARDO GIRON CHAVEZ MEMORANDUM OPINION* BY v. Record No. 0793-22-4 JUDGE MARY GRACE O’BRIEN JULY 11, 2023 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY James P. Fisher, Judge
Kelsey Bulger, Senior Appellate Attorney (Virginia Indigent Defense Commission, on briefs), for appellant.
Aaron J. Campbell, Assistant Attorney General (Jason S. Miyares, Attorney General; Liam A. Curry, Assistant Attorney General, on brief), for appellee.
Tried by a jury, Ricardo Giron Chavez appeals his convictions for rape and sodomy of a
child under the age of thirteen, in violation of Code §§ 18.2-61 and 18.2-67.1. Chavez contends the
court erred by failing to strike a juror for cause and by excluding evidence of a motive to fabricate.
Chavez also argues that the evidence was insufficient to establish the element of penetration. For
the following reasons, we affirm Chavez’s convictions.
* This opinion is not designated for publication. See Code § 17.1-413. BACKGROUND1
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
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)).
A. Voir Dire of the Jury
At the start of voir dire, the court asked the prospective jurors several questions. Their
responses indicated that they were unbiased, had no personal interest in the trial, did not have
any information about the alleged offenses, and had no reason to believe that they could not be
fair and impartial.
The prosecutor inquired whether anyone had religious, moral, or philosophical beliefs
which would prevent them from serving on the jury. No one responded. Chavez’s counsel also
examined the prospective jurors. Their responses indicated that they could follow the court’s
instructions independent of their beliefs. The prospective jurors also affirmed that they knew
Chavez was presumed innocent and understood that the Commonwealth was required to prove
Chavez’s guilt beyond a reasonable doubt. The prosecutor advised that the case involved the
sexual abuse of a child and asked if anyone had “been the victim of sexual abuse” or “had a close
1 The record in this case is sealed, but this appeal requires unsealing certain portions to resolve the issues raised by Chavez. “To the extent that certain facts are found in the sealed portions of the record, we unseal those portions only as to those specific facts mentioned in this opinion.” Khine v. Commonwealth, 75 Va. App. 435, 442 n.1 (2022). “The rest remains sealed.” Id. -2- friend or family member who has been the victim of sexual abuse.” A.P.2 responded
affirmatively.
During a bench conference, A.P. stated that his wife was sexually abused as a child.
A.P. added that he had “feelings about . . . the impact it has had on [his wife] growing up.” He
asserted that he thought he could “be unbiased, [he] just ha[d] some doubt.” However, he did
acknowledge that “something” in the case could “trigger” a response from him related to his
wife’s abuse. The prosecutor asked if A.P. had already determined Chavez’s guilt because of his
own experience, and A.P. responded “no.” When asked if he could determine the case based on
the evidence presented and not on his own experience, A.P. stated, “I think I can.”
Chavez moved to strike A.P. for cause. In denying the motion, the court noted that it
observed A.P.’s body language, his facial gestures, and his vocal intonation. It “heard [A.P.]
very persuasively say he can commit to following the law and the evidence in this case.” The
court recognized that A.P.’s statement, “I think I can, I think I can,” would not appear “great on
paper.” The court concluded, however, it had observed A.P. and believed him when he said he
could be impartial.
B. Evidence at Trial
The evidence established that in 2018, when A.G. was “12 or 11” years old, she lived with
her two siblings, their mother (Sonia), and Chavez. Sonia was in a romantic relationship with
Chavez.
On February 5, 2019, A.G.’s fifth-grade teacher learned from A.G.’s classmate that A.G.
may have been sexually abused. The teacher informed the school administration, and after
investigating the matter, administrators contacted Child Protective Services (CPS) and law
enforcement.
2 We use the juror’s initials to protect his privacy. -3- A CPS investigator advised Loudoun County Detective Elissa Wilk that a 12-year-old
student had disclosed to a classmate that she had been sexually abused. After speaking with Sonia,
Detective Wilk set up a recorded telephone call from A.G. to Chavez. A.G. used Sonia’s phone,
and Detective Wilks watched as she called Chavez.
In the call, A.G. falsely told Chavez that she was pregnant. Chavez immediately began to
cry and demanded to know A.G.’s location. When A.G. asked why he had sex with her, Chavez
stated, “at that point you insisted so much.” He continued that “it shouldn’t have been that way.”
Chavez acknowledged that A.G’s pregnancy was “a great big problem” but claimed that “[he] told
[her] no.” He contended that she could not “be like that. . . . It’s not possible.” When A.G. stated
that she was afraid, he responded “I know” and again wanted to know A.G.’s location. Chavez
asked A.G. where her mother was and whether her mother knew that she was pregnant. Instead of
responding to Chavez’s questions, she asked Chavez why he got her pregnant. He repeated “[t]hat
shouldn’t have happened” and “that was a mistake.” Chavez expressed concern that A.G. was
mistaken and urged her to save the pregnancy test to show him later. When A.G. requested an
abortion, Chavez agreed. He stated that they would have “a great big problem” if her mother
discovered that A.G. was pregnant. Throughout the conversation, Chavez called himself “stupid”
and reiterated that A.G.’s pregnancy was “an error, an act of stupidity, an idiocy.”
Chavez was arrested and charged with rape and sodomy of a child under the age of thirteen.
At trial, A.G. testified that Chavez’s sexual advances began when he and her mother were separated
in 2018. Chavez visited one evening while Sonia was at work. A.G. and Chavez were sitting
together on the couch when Chavez stated that he was going to go to sleep. He asked A.G. if she
“want[ed] to [go] with [him] and, like, sleep.” Chavez then rubbed his clothed private parts against
her body. A.G. explained that she was clothed at the time.
-4- The second incident of sexual abuse occurred when Sonia was at work and Chavez was
visiting. A.G. and Chavez were on Sonia’s bed watching television. Chavez touched A.G.’s
buttocks and private parts and ultimately, they “did sex.” A.G. explained that “[Chavez’s] private
part[s] [were] in mine.” When asked what a doctor would call a man’s “private parts,” A.G.
responded “penes,” or penis, in Spanish. When asked what a doctor would call her “private parts,”
A.G. responded, “vagina,” which she described as being “[u]nder [her] belly.” When asked where
Chavez’s penis went on this occasion, A.G. stated “[u]nder my vagina,” and then amended her
answer to state that Chavez’s penis went “[i]n my vagina.”
A.G. described a third incident involving oral sodomy. While her mother was at work, A.G.
and Chavez were in her mother’s bedroom. After they had sexual intercourse, Chavez put his penis
into A.G.’s mouth. A.G. testified that “white stuff” came out of his penis and into her mouth.
Chavez asked A.G. if she wanted “that stuff” to go “in her vagina or in her mouth.”
A.G. first disclosed the abuse to a friend at school, E.Z. E.Z. stated that A.G. sometimes
used the word “rape” when describing Chavez’s actions. A.G. said that she and Chavez would play
“the doctor game” where Chavez would touch different parts of A.G.’s body and A.G. would touch
different parts of Chavez’s body. E.Z. relayed the information to another student because she was
concerned about A.G. Eventually, A.G.’s teacher learned about the abuse.
Sonia testified for the defense. She stated that A.G. did not confide in her and preferred to
speak about private matters with non-family members. According to Sonia, A.G. accused her
great-uncle of inappropriately touching her in 2016, but later recanted. Sonia estimated that in
2019, her daughter was lying to her 80% of the time.
Chavez testified and denied sexually abusing A.G. He stated that he “had issues with A.G.
and her actions” and he believed that she was in love with him. He admitted that he received a call
from A.G. in February 2019, but explained that when he answered the call, he had just worked 10 to
-5- 12 hours. Chavez claimed that he was shocked and confused to learn of A.G.’s claim that she was
pregnant but noted that his reaction was only as a father figure to the child.
On cross-examination, Chavez testified that the children in the home called him “papa” and
he thought of himself as the children’s father with the authority to care for and discipline them. He
admitted that during the controlled call he did not deny having sex with A.G., he never asked A.G.
if she had sexual intercourse with anyone else, and did not deny that he could have fathered the
purported child.
ANALYSIS
A. Evidentiary Rulings
Before trial, appellant moved to introduce evidence to support his theory that A.G. had a
motive to fabricate the allegations and requested a hearing pursuant to Code § 18.2-67.7, the rape
shield statute. Chavez sought to cross-examine A.G. about statements that she allegedly made to
others suggesting a belief that she was pregnant as a result of a liaison with a purported
boyfriend. Chavez intended to establish that A.G. had a boyfriend to support an inference that
A.G. was sexually active with someone other than the accused and feared her mother’s
disapproval. After a hearing, the court denied the motion and concluded “there was insufficient
notice provided with respect to the information sought to be admitted.” The court also found “an
insufficient nexus between the allegations of the victim against the defendant and the prior
sexual conduct evidence of the victim sought to be [introduced]” at trial.
At Chavez’s subsequent motion to reconsider, heard during the trial, he proffered that he
intended to introduce the following evidence:
(a) A.G.’s statements that she self-harmed in the past with a knife because her mother
would not let her have a boyfriend;
(b) A.G.’s statements that she believed she was pregnant;
-6- (c) Statements from A.G.’s classmate, E.Z., that A.G. discussed a boyfriend, Gabriel, in
the same conversation during which she reported Chavez’s abuse; and
(d) Printouts of two photographs from A.G.’s Facebook account, posted during the period
of abuse, showing an unknown couple kissing with “heart balloons” in the background and an
unknown couple on a beach with the quote “I was born to love you.”
The court ruled that A.G.’s belief that she was pregnant was inadmissible under Code
§ 18.2-67.7. The court also ruled that, although Code § 18.2-67.7 did not bar A.G.’s statement
about harming herself or having a boyfriend, that evidence, along with A.G.’s Facebook posts,
was irrelevant and inadmissible.
On appeal, Chavez argues that the proffered evidence was relevant to show that A.G.
feared her mother’s reaction to an unwanted pregnancy with an unnamed boyfriend. A.G.’s
purported fear, Chavez claims, established her motive to fabricate the source of the pregnancy.
This Court reviews a trial court’s decision to admit evidence under an abuse of discretion
standard. Morgan v. Commonwealth, 73 Va. App. 512, 522 (2021) (“Decisions as to the
admissibility of evidence lie within the trial court’s sound discretion and will not be disturbed on
appeal absent an abuse of discretion.” (citation omitted)); see also Ortiz v. Commonwealth, 276
Va. 705, 712 (2008) (applying the abuse of discretion standard to a court’s denial of evidence
proffered pursuant to Code § 18.2-67.7).
1. A.G.’s Belief of Pregnancy
Turning first to Chavez’s proffered evidence of A.G.’s statement that she was pregnant,
Chavez contends that this evidence was admissible under the motive to fabricate exception in
-7- Code § 18.2-67.7(B).3 He claims that A.G.’s statement that she believed she was pregnant
coupled with her fear of her mother’s discipline evinced a motive to fabricate the source of the
pregnancy.
In rape prosecutions, “general reputation or opinion evidence of the complaining
witness’s unchaste character or prior sexual conduct shall not be admitted.” Code
§ 18.2-67.7(A). However, Code § 18.2-67.7(B) provides that “[n]othing contained in this section
shall prohibit the accused from presenting evidence relevant to show that the complaining
witness had a motive to fabricate the charge against the accused.”
In Winfield v. Commonwealth, 225 Va. 211, 220 (1983), the Virginia Supreme Court
concluded that Code § 18.2-67.7 was enacted to “preclude evidence of general reputation or opinion
of the unchaste character of the complaining witness” in sexual assault cases. For evidence of past
sexual conduct to be admissible under Code § 18.2-67.7(B)’s motive to fabricate exception, the
evidence “must show a pattern of behavior which directly relates to the conduct charged against the
complaining witness in the case on trial.” Id. Accordingly, the proffered evidence must bear a
“sufficient nexus” to the crime alleged. Id.; see also Ortiz, 276 Va. at 718.
The proffered evidence in Winfield tended to show that the complaining witness had a
“distinctive pattern of past sexual conduct, involving the extortion of money by threat after acts of
prostitution.” 225 Va. at 220. Thus, because there was “a sufficient nexus” between the
complaining witness’s alleged extortion after acts of prostitution and Winfield’s version of the
complaining witness’s conduct in his case, the evidence was relevant and probative of a motive to
fabricate. Id.
3 Chavez also argues that Code § 18.2-67.7 does not apply because A.G.’s statement that she believed she was pregnant is not “prior sexual conduct” under the statute. However, he did not make this argument to the trial court and, therefore, he did not preserve it. See Rule 5A:18 (“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.”). -8- Here, Chavez did not establish a pattern of behavior with a sufficient nexus to the crime for
which he was on trial. He did not proffer the details of the statements, any claimed prior sexual
activity, or the existence of a boyfriend. Accordingly, the court did not abuse its discretion when it
denied Chavez’s motion to introduce A.G.’s statement suggesting a belief that she was pregnant.
2. Other proffered evidence
Chavez argues that the court erred by ruling that the other proffered evidence he sought
to introduce was irrelevant. He asserts that it tended to prove that A.G. had a motive to fabricate
the source of an unwanted pregnancy.
“‘Relevant evidence’ means 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.” Va. R. Evid.
2:401. “Evidence that is not relevant is not admissible.” Va. R. Evid. 2:402(a).
Chavez tried to introduce statements that A.G. claimed to have harmed herself in the past
because her mother would not let her have a boyfriend and sought to introduce testimony that
A.G. mentioned having a boyfriend to E.Z. First, Chavez failed to establish how A.G.’s alleged
self-harm tended to prove a motive to fabricate. Second, the bare fact of A.G. mentioning a
boyfriend is too attenuated from any evidence supporting a motive to fabricate. To arrive at such
a conclusion would require several speculative inferential leaps unsupported by any evidence.
Thus, the court did not abuse its discretion when it found that this evidence was irrelevant and
invited speculation. See Coe v. Commonwealth, 231 Va. 83, 87 (1986) (“[E]vidence of collateral
facts and facts incapable of supporting an inference on the issue presented are irrelevant and
cannot be accepted in evidence.”).
Finally, the record also supports the court’s conclusion that the photographs from A.G.’s
Facebook page were irrelevant to prove any issue in the case and merely invited speculation.
These images simply portray an unknown couple. They did not make the existence of a potential
-9- boyfriend more probable and produced only an attenuated, speculative inference. The court did
not abuse its discretion in excluding them. See Farish v. Commonwealth, 2 Va. App. 627, 629
(1986).
B. Jury Selection
Chavez asserts that the court erred in refusing to strike A.P. from the jury because although
A.P. stated that he thought he could be impartial, he maintained that “[he] ha[d] some doubt.” A.P.
also expressed that he was unsure “if something would trigger related to what [his wife] went
through.”
Chavez argues that A.P. was never rehabilitated, noting that A.P. was asked only a single
rehabilitative question: whether he could judge the case on the evidence, instead of his personal
experiences. A.P. responded, “I think I can.” A.P.’s answer, Chavez argues, failed to rebut his prior
statements about doubting his own impartiality. Chavez contends that A.P. was equivocal about his
impartiality and should have been struck for cause.
“The right to be tried by an impartial jury is guaranteed under both the United States and
Virginia Constitutions.” Taylor v. Commonwealth, 61 Va. App. 13, 22 (2012); see also Code
§ 8.01-358. “For that guarantee to be effective, persons accused of violating criminal laws must
be provided with ‘an impartial jury drawn from a panel . . . free from exceptions.’” Taylor, 61
Va. App. at 22 (quoting Breeden v. Commonwealth, 217 Va. 297, 300 (1976)). “Every
prospective juror must stand indifferent to the cause, ‘and any reasonable doubt as to a juror’s
qualifications must be resolved in favor of the accused.’” Id. at 23 (quoting Breeden, 217 Va. at
298). “These principles must be strictly applied, and when a prospective juror equivocates about
whether he or she has formed a fixed opinion, the prospective juror should be stricken by the trial
court.” Id. “The opinion entertained by a juror, which disqualifies him, is an opinion of that
fixed character which repels the presumption of innocence in a criminal case, and in whose mind
- 10 - the accused stands condemned already.” Id. (quoting Lovos-Rivas v. Commonwealth, 58
Va. App. 55, 61 (2011)). “Thus, the test of impartiality is whether the venireperson can lay aside
the preconceived views and render a verdict based solely on the law and evidence presented at
trial.” Id. (quoting Lovos-Rivas, 58 Va. App. at 61).
Because the trial court can observe each juror’s response to voir dire questions, it “is in a
superior position to determine whether a prospective juror’s responses during voir dire indicate
that the juror would be prevented from or impaired in performing the duties of a juror as required
by the court’s instructions and the juror’s oath.” Id. (quoting Lovos-Rivas, 58 Va. App. at 61).
“Juror impartiality is a question of fact, and a trial court’s decision to seat a juror is entitled to
great deference on appeal. Accordingly, the decision to retain or exclude a prospective juror will
not be disturbed on appeal unless there has been manifest error amounting to an abuse of
discretion.” Id. at 23-24 (quoting Lovos-Rivas, 58 Va. App. at 61). In conducting our review on
appeal, “we consider the juror’s entire voir dire, not merely isolated statements.” Id. at 24.
Here, the record does not establish that A.P. held firm opinions of such “fixed character
which repel[] the presumption of innocence in a criminal case, and in whose mind the accused
stands condemned already.” Justus v. Commonwealth, 220 Va. 971, 976 (1980) (quoting Slade
v. Commonwealth, 155 Va. 1099, 1106 (1931)). Although he recognized that some evidence
could affect him personally, A.P. affirmed that he believed he could “commit to determining
[Chavez’s guilt] based on the evidence that was presented” and had not prejudged Chavez’s
guilt. The court found that A.P was honest about his ability to be impartial and specifically
noted that it came to this conclusion based on A.P.’s body language, facial gestures, and vocal
intonation. Considering the entire voir dire, the record supports the court’s determination that
A.P. could serve as an impartial juror. We will not reverse that conclusion on appeal.
- 11 - C. Evidence of Penetration
Finally, Chavez asserts that the evidence was insufficient to prove the element of
penetration.
“Rape is defined as ‘sexual intercourse against the victim’s will by force, threat, or
intimidation.’” Johnson v. Commonwealth, 259 Va. 654, 681 (2000) (quoting Wilson v.
Commonwealth, 249 Va. 95, 100 (1995)); see also Code § 18.2-61. “Penetration by a penis of a
vagina is an essential element of the crime of rape; proof of penetration, however slight the entry
may be, is sufficient.” Johnson, 259 Va. at 682 (quoting Moore v. Commonwealth, 254 Va. 184,
186 (1997)).
Chavez argues that A.G. was equivocal when describing sexual organs and notes that no
doll, diagram, or other piece of demonstrative evidence was used to aid A.G. in her testimony. He
contends that A.G.’s use of imprecise terms to describe what happened to her left the evidence in
the prosecution’s case-in-chief in a state of equipoise. Chavez notes that A.G. testified that she and
Chavez “did sex.” When AG was asked to describe where her private parts were located, she stated
“under her belly.” Finally, A.G. stated that Chavez’s penis went “under her vagina” and “in her
vagina.” He maintains her testimony was insufficient to prove penetration beyond a reasonable
doubt. We disagree.
“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)). “In such cases, ‘[t]he Court does
not ask itself whether it believes that the evidence at the trial established guilt beyond a
reasonable doubt.’” Id. (alteration in original) (quoting Secret v. Commonwealth, 296 Va. 204,
228 (2018)). “Rather, the relevant question is whether ‘any rational trier of fact could have
- 12 - found the essential elements of the crime beyond a reasonable doubt.’” Vasquez v.
Commonwealth, 291 Va. 232, 248 (2016) (quoting Williams v. Commonwealth, 278 Va. 190, 193
(2009)). “If there is evidentiary support for the conviction, ‘the reviewing court is not permitted
to substitute its own judgment, even if its opinion might differ from the conclusions reached by
the finder of fact at the trial.’” McGowan, 72 Va. App. at 521 (quoting Chavez v.
Commonwealth, 69 Va. App. 149, 161 (2018)).
In Moore v. Commonwealth, the complaining witness stated that the defendant placed his
penis both “in” and “on” her vagina. 254 Va. at 189. The Supreme Court held that because the
victim gave two different accounts of the essential facts relating to a crucial element of the crime
and the victim’s testimony stood alone, the evidence “was in a state of equipoise.” Id. at 189-91.
However, when the prosecution presents “additional evidence of penetration, which was
uncontradicted within its case-in-chief,” the evidence is not in equipoise. Jett v. Commonwealth,
29 Va. App. 190, 196-97 (1999) (holding that “[t]he combination of direct and indirect evidence
of penetration presented here is distinguishable from the equivocal testimony of the child victim
in Moore, which was the sole evidence of penetration in that case”).
Unlike in Moore, A.G.’s account illustrated that she understood her anatomy. Further,
her account of the crime was corroborated by Chavez’s inculpatory statements. A.G. testified
that she and Chavez had sex in her mother’s bedroom more than once. A.G. explained that sex
with appellant involved “[h]is private part in my [sic] mine.” When asked what Chavez’s private
part was called, A.G. responded penis, in Spanish. A.G. testified that “one time” Chavez’s penis
went into her mouth and “the other time” it went in her “private parts.” When asked what a
doctor would call her private part, she replied: “a vagina.” When asked where Chavez’s penis
went, she responded “[i]n my vagina.” She noted that her vagina was located “[u]nder her
belly.”
- 13 - Chavez also made several admissions during the controlled call. When A.G. asked
Chavez why he had sex with her, he replied “that . . . it shouldn’t have been that way.” He told
A.G. that getting her pregnant “was a mistake,” and he agreed that she should abort the baby.
Throughout the conversation, Chavez called himself “so stupid,” stated that he was “very afraid,”
and expressed that he regretted his actions “very, very much.” At one point, Chavez referred to
his behavior as “an error, an act of stupidity, an idiocy.”
Considering A.G.’s testimony with Chavez’s inculpatory statements, the evidence was
not in equipoise. A finder of fact could conclude beyond a reasonable doubt that penetration
occurred and that Chavez was guilty of rape. See Jett, 29 Va. App. at 197.
CONCLUSION
We find that the court did not abuse its discretion when it denied Chavez’s motion to
introduce certain proffered testimony and exhibits, and when it denied Chavez’s motion to strike
A.P. from the jury for cause. Further, the Commonwealth’s evidence was competent and was
sufficient to prove beyond a reasonable doubt that Chavez was guilty of rape of a child under the
age of thirteen. Accordingly, we affirm.
Affirmed.
- 14 -