Robert E. Conner v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: March 25, 1997
• Docket: 1720962
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Elder and Fitzpatrick Argued at Richmond, Virginia

ROBERT E. CONNER MEMORANDUM OPINION * BY v. Record No. 1720-96-2 JUDGE JOHANNA L. FITZPATRICK MARCH 25, 1997 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF BRUNSWICK COUNTY Robert G. O'Hara, Jr., Judge Matthew N. Ott (Michelle Morris Jones; Matthew N. Ott, P.C., on briefs), for appellant.

Kathleen B. Martin, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Robert E. Conner (appellant) was convicted in a bench trial

of taking indecent liberties with a minor and of contributing to

the delinquency of a minor. On appeal, he contends that the

trial court erred in (1) finding the evidence sufficient to prove

that appellant maintained a custodial or supervisory relationship

with the victim as required by Code § 18.2-370.1; and (2)

allowing a mental health counselor to testify about her

observations of the victim.

In May and June of 1994, appellant was the "homebound

teacher" for J.T. Allen (Allen) who had been injured in an

automobile accident. After the school year ended, appellant

maintained contact with Allen, because he "had gotten to know * Pursuant to Code § 17-116.010 this opinion is not designated for publication. J.T. and he was having a few family problems and his mother

wanted me to stay involved with and help J.T."

During the following school year, appellant was a substitute

teacher at Allen's school. He continued to remain friendly with

Allen. On occasions when appellant substituted in Allen's class,

he called Allen to the front of the room where they would talk.

On other occasions, when appellant substituted for another class,

he would remove Allen from class to walk around or go to the

agricultural department building to smoke. Allen eventually

complained to the principal because he "got tired" of appellant

frequently having him excused from class. On April 18, 1995, after an argument with his mother, Allen,

then age seventeen, contacted appellant and asked him for a ride.

Appellant picked up Allen and a friend, allowed Allen to drive

his friend back to town, and told Allen to return to appellant's

home. After returning to appellant's home, appellant took

several pictures of Allen and while posing him, unzipped his

pants. He pulled Allen's pants down further, and measured

Allen's forearms, muscles, and stomach, and "he stuck, put the

end of the measuring tape in one hand and the ruler in the other

one and he stuck his hand down [Allen's] pants, grabbed [his]

penis and said, 'Why don't we measure this too?'" Appellant told

Allen not to tell anyone about the incident. Allen left in

appellant's car and did not return.

At trial, Jan L. Hundley (Hundley), a licensed clinical

2 nurse specialist in child and adolescent psychiatry, testified

that she had known Allen since 1993. She was not qualified as an

expert witness. The trial court allowed Hundley to testify

regarding her "observations" only. Hundley testified regarding

her observations of Allen's emotional state and demeanor: "He

was ashamed, he hung his head, he would not speak above a

whisper. . . . At times he cried uncontrollably . . . . At times

he was shaking." After the close of all the evidence, the court stated: It has been said and resaid the issue is indeed one of credibility. The Court is the trier of fact. It has heard the evidence. It has had the opportunity to observe the witnesses, their manner and appearance on the stand, their intelligence, their opportunity and their positions in the matter to have observed the things about which they've testified, their interest in the outcome of the case, their bias or prejudice, if any, their prior statements, consistent or inconsistent, whether they have knowingly testified untruthfully as to any material fact.

The Court applies as the trier of facts its common sense to those circumstances and all of the circumstances determined from the evidence. And when so doing, in consideration of the two charges before it, the Court is of the opinion that the evidence beyond a reasonable doubt supports the conviction of the defendant of both charges. . . . And the Court does so find the defendant guilty as charged. . . .

I.

Appellant's claim that the evidence was insufficient to

establish that he maintained a "custodial or supervisory

3 relationship" with Allen on April 18, 1995 is procedurally

barred. As this Court's review is limited to the record on

appeal, appellant's failure to transcribe his motion to strike

and closing argument prevents review in this case. See Justis v.

Young, 202 Va. 631, 632, 119 S.E.2d 255, 256-57 (1961). Without

a complete transcript that includes the argument, this Court has

no knowledge of the arguments made by appellant to the trial

court. We will not consider on appeal an argument that was not

presented to the trial court where the record reflects no reason

to invoke the good cause or ends of justice exceptions to Rule

5A:18. See Buck v. Commonwealth, 247 Va. 449, 452-53, 443 S.E.2d

414, 416 (1994); Jacques v. Commonwealth, 12 Va. App. 591, 593,

405 S.E.2d 630, 631 (1991) (citing Rule 5A:18).

II.

"The admissibility of evidence is within the broad

discretion of the trial court, and a ruling will not be disturbed

on appeal in the absence of an abuse of discretion." Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988).

"[I]n a bench trial, the trial judge is presumed to disregard

prejudicial or inadmissible evidence . . . ." Hall v.

Commonwealth, 14 Va. App. 892, 902, 421 S.E.2d 455, 462 (1992)

(en banc) (citations omitted). "'Evidence is relevant if it has

any logical tendency, however slight, to establish a fact at

issue in the case.'" Taylor v. Commonwealth, 21 Va. App. 557,

563, 466 S.E.2d 118, 121 (1996) (quoting Ragland v. Commonwealth,

4 16 Va. App. 913, 918, 434 S.E.2d 675, 678 (1993)). "'Once

evidence is determined to be relevant and material, "[t]he

responsibility for balancing . . . probative value and prejudice

rests in the sound discretion of the trial court," and its

decision "will not be disturbed on appeal in the absence of a

clear abuse."'" Id. (quoting Wilkins v. Commonwealth, 18 Va.

App. 293, 298, 443 S.E.2d 440, 443 (1994) (en banc) (citation

omitted)). Lay witnesses may testify regarding observations they have

made about the physical condition of a person with whom they are

familiar. See Speller v. Commonwealth, 2 Va. App. 437, 441, 345

S.E.2d 542, 545 (1986). Hundley had counseled Allen since August

1993 and was familiar with his personality traits. Her

observations about his demeanor after April 18, 1995 were

relevant circumstantial evidence that corroborated the offense.

See Taylor, 21 Va. App. at 565, 466 S.E.2d at 121-22. In the

instant case, the trial court did not permit Hundley to state any

professional diagnosis, and properly limited her testimony to

observations that could have been made by a lay person.

Moreover, this was a bench trial. "A judge . . . is

uniquely suited by training, experience and judicial discipline

to disregard potentially prejudicial comments and to separate,

during the mental process of adjudication, the admissible from

the inadmissible, even though he has heard both." Eckhart v. Commonwealth, 222 Va. 213, 216, 279 S.E.2d 155, 157 (1981).

5 "Consequently, we presume that" the trial judge disregarded "any

prejudicial or inadmissible evidence." Cole v. Commonwealth, 16

6 Va. App. 113, 116, 428 S.E.2d 303, 305 (1993). Finding no

reversible error, we affirm.

Affirmed.