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Date: 11-04-2019

Case Style:

Carlos Artur Alvarez Saucedo v. Commonwealth of Virginia

Case Number: 1440-18-3

Judge:

Court: COURT OF APPEALS OF VIRGINIA

Plaintiff's Attorney: (Mark R. Herring, Attorney General; Rachel L. Yates, Assistant Attorney General

Defendant's Attorney:

Description:

Call 888-354-4529 if you need a Criminal Defense Attorney in Virginia.





G.G., the complaining witness, is appellant’s stepdaughter. In 2013, when G.G. was in first
grade, she told a school counselor that appellant had touched her vagina. However, when a social
worker and police officer interviewed the child, she recanted her statement.
PU BL ISH ED
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In 2017, when she was ten years old, G.G. attended a presentation at her elementary school
about inappropriate touching. Afterwards, G.G. told Carlita Sheldon, a Child Protective Services
employee, that when she was four or five years old, appellant laid on the bed where she was
sleeping and licked her vagina. G.G. also said that appellant was drunk at the time. Sheldon
obtained permission from G.G.’s mother to take G.G to the Collins Child Advocacy Center for a
forensic interview. Rhoda Miller, a Collins Center employee, conducted the interview, which was
videotaped.
On April 19, 2017, Detective Mike Spiggle of the Harrisonburg Police Department
interviewed appellant at the police station. Appellant was not in custody. Carlita Sheldon, who is
fluent in Spanish, interpreted for appellant during the interview. Appellant denied the allegations
and left.
Appellant agreed to return to the station on April 24, 2017 for a polygraph examination.
Upon appellant’s arrival, Detective Spiggle and another interpreter, Ramon Ochoa, escorted
appellant to the polygraph suite, demonstrated that the door was unlocked, and assured appellant
that he was free to leave at any time. Appellant was not handcuffed, and he sat in the chair closest
to the door. Detective Spiggle and Ochoa were the only other people in the room.
Detective Spiggle explained that he was investigating appellant for sodomizing a child. He
remarked that if appellant touched G.G.’s vagina with his tongue, he “needed to get up and walk out
of the room now.” Appellant continued to speak with the detective and eventually stated that he
“had been drinking that night and he mistook or . . . confused [G.G.] for his wife.” When asked if
he recalled touching G.G.’s vagina with his tongue, appellant replied, “[P]robably, yes,” and added,
“I’m sure myself I will never do that again.” Detective Spiggle left the room, and appellant wrote a
statement.
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After reviewing the statement with a prosecutor, Detective Spiggle requested more details
from appellant. Appellant wrote a second statement in which he admitted that he touched G.G. with
his hands and “maybe . . . touch[ed] her with [his] tongue.” Detective Spiggle placed appellant
under arrest at that time.
Prior to trial, appellant moved to suppress his oral and written statements to Detective
Spiggle. Although appellant acknowledged that he was not in custody during his initial interview
on April 19, 2017, he contended that on April 24, 2017, when Detective Spiggle told him that if he
touched G.G. with his tongue he should “get up and walk out,” the interview became custodial and
the police were required to advise him of his rights under Miranda v. Arizona, 384 U.S. 436 (1966).
The court viewed the videotaped interview from April 24, 2017, and observed that “during the
entire interview . . . [appellant] appeared to be sitting in a relaxed manner.” It found, after
considering all the circumstances, that appellant was not in custody and denied the suppression
motion.
Pursuant to Code § 19.2-268.3, the Commonwealth filed a pretrial motion to admit three of
G.G.’s prior statements: the 2013 report to a school counselor, the 2017 disclosure to Carlita
Sheldon, and the 2017 forensic interview with Rhoda Miller at the Collins Center. Appellant agreed
that the statements could be admissible but argued that G.G. would have to testify first. The court
found that the “totality of the circumstances surrounding each of the three statements provided
sufficient indicia of reliability so as to render them inherently trustworthy” and therefore they were
admissible under the hearsay exception contained in Code § 19.2-268.3.
At trial, G.G. testified that when she was five years old, she woke one night to find appellant
lying on her bed. She stated that appellant pulled her pants down and touched her vagina with his
tongue and hands for several seconds. On cross-examination, G.G. acknowledged that she did not
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know the meaning of “labia majora” or “vulva,” but she explained that when she stated appellant
had put his tongue on her vagina, she meant her “private area.”
G.G. testified that she initially reported the abuse when she was in first grade and told
another adult when she was in fourth grade. She stated that she did not remember the Collins
Center interview but recalled “going to a place where [she] sat in a blue chair to talk with a video.”
Miller identified the videotaped interview at trial, and over objection, the Commonwealth played the
video for the jury. In the interview, G.G. described the offense, gestured to a picture of a vagina on
the table, and said that during the incident, she felt appellant “opening” her “two parts” and
“lick[ing] around all of [her] vagina.”
During closing argument, appellant argued that G.G. was not credible because her testimony
was “all over the place” and she did not “remember anything” about the forensic interview although
it only occurred approximately one year before trial. The jury found appellant guilty of forcible
sodomy, and he subsequently filed a motion to set aside the verdict. The court denied his motion.
ANALYSIS
A. Suppression Motion
Appellant contends that the court erred by denying the motion to suppress his April 24, 2017
statements to Detective Spiggle. He argues that the statements were obtained in violation of his
Fifth Amendment rights under the United States Constitution because Detective Spiggle failed to
advise him of his Miranda rights before conducting a custodial interrogation.
“When considering whether to affirm the denial of a pretrial suppression motion, an
appellate court reviews not only the evidence presented at the pretrial hearing but also the evidence
later presented at trial.” Tirado v. Commonwealth, 296 Va. 15, 24-25 (2018) (quoting
Commonwealth v. White, 293 Va. 411, 414 (2017)). “Although ‘[w]e are bound by the trial court’s
findings of historical fact unless “plainly wrong,” or without evidence to support them,’ . . . we
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review de novo the trial court’s application of legal standards . . . to the particular facts of the case.”
Aldridge v. Commonwealth, 44 Va. App. 618, 638 (2004) (quoting McCracken v. Commonwealth,
39 Va. App. 254, 258 (2002) (en banc)). An appellate court views the evidence in the light most
favorable to the Commonwealth and “accord[s] the Commonwealth the benefit of all inferences
fairly deducible from the evidence.” Riner v. Commonwealth, 268 Va. 296, 303 (2004).
The Fifth Amendment to the United States Constitution provides that “[n]o person shall . . .
be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V.1 To
safeguard this right, police must advise criminal suspects of their right against self-incrimination
prior to subjecting them to custodial interrogations. Miranda v. Arizona, 384 U.S. 436, 444-45
(1966). However, this requirement does not extend to non-custodial interrogations; the suspect
must be “both in custody and subjected to interrogation” before police must provide Miranda
warnings. Watts v. Commonwealth, 38 Va. App. 206, 214 (2002).
To evaluate whether a suspect is in custody, the proper inquiry is “how a reasonable person
in the suspect’s situation would have understood his circumstances.” Dixon v. Commonwealth, 270
Va. 34, 40 (2005). Relevant circumstances include
whether the suspect was physically restrained, whether firearms were drawn, whether there was physical contact between police and the suspect, . . . whether police told the suspect he or she was free to leave, whether police engaged in other incidents of formal arrest such as booking [and] whether more than one officer was present.

Hasan v. Commonwealth, 276 Va. 674, 679-80 (2008). The “officers’ demeanor during the
encounter, the length of the questioning . . . the nature of the questions asked, . . . [and] the location
of the encounter” are also important factors for courts to consider when determining if a suspect was
subject to custodial interrogation. Id. at 680.
1 The Fifth Amendment is applicable to the states through the Due Process Clause of the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 6 (1964).
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Therefore, the number of officers, the degree of restraint, and the nature of the surroundings
may all contribute to a finding that a suspect is in custody. Harris v. Commonwealth, 27 Va. App.
564, 565 (1998). However, “[a]ny interview of one suspected of a crime by a police officer will
have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law
enforcement system which may ultimately cause the suspect to be charged with a crime.” Oregon v.
Mathiason, 429 U.S. 492, 493-95 (1977) (finding a defendant was not in custody when he confessed
after a police officer falsely told him during a police station interview in a closed room that his
fingerprints were found at the crime scene). See also Aldridge, 44 Va. App. at 642-47 (finding no
custodial interrogation where the defendant voluntarily agreed to an interview at the police station
and was free to leave, the detectives never raised their voices, and the defendant was not handcuffed
or physically restrained).
Appellant acknowledges that he voluntarily attended the polygraph examination
appointment at the police department on April 24, 2017. However, he argues the interview became
custodial due to Detective Spiggle’s comment advising appellant to “walk out of the room” if
appellant’s “tongue touched [G.G.’s] vagina.” Appellant contends that this statement constituted a
“verbal handcuff [that] invalidated the otherwise consensual nature of the encounter” and rendered
the interview a custodial interrogation.
Although appellant analogizes the facts of his case to those of Missouri v. Seibert, 542 U.S.
600 (2004), we find his reliance misplaced. In Seibert, police arrested the defendant, transported
her to the police station, and interrogated her without first providing Miranda warnings. Id. at
604-05. She confessed to the crime. Id. at 605. Following her confession, the police advised the
defendant of her Miranda rights and questioned her again. Id. The defendant reiterated her
confession. Id. The United States Supreme Court found that the interview tactic of “question first,
then give the warnings, and then repeat the question ‘until . . . get[ting] the answer that [the
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defendant] already provided’” violated the Fifth Amendment right against self-incrimination. Id. at
606, 612-17. Unlike Seibert, however, appellant was not under arrest at the time he made his
statements and was free to leave.
Further, this case is distinguishable from Seibert because here, the record supports the
court’s finding that Detective Spiggle’s comment did not restrict appellant’s freedom “of the degree
associated with a formal arrest.” California v. Beheler, 463 U.S. 1121, 1125 (1983). Appellant
went to the police station voluntarily on April 24, 2017 for the polygraph examination. He was not
handcuffed or restrained; on the contrary, Detective Spiggle assured appellant that he could leave at
any time and demonstrated that the door to the polygraph suite was not locked. Detective Spiggle
was the only law enforcement officer in the room with appellant, and the court noted that appellant
appeared “relaxed” throughout the interview. Although appellant may have felt psychological
pressure to confess after Detective Spiggle’s comment, that alone did not amount to a restraint that
rendered the interview a custodial interrogation. See Mathiason, 429 U.S. at 495. For these
reasons, the totality of the evidence supports the court’s conclusion that appellant was not in custody
during the interview on April 24, 2017. Therefore, the court did not err in denying appellant’s
motion to suppress his statements.
B. G.G.’s Forensic Interview
Appellant contends the court erred by admitting G.G.’s videotaped forensic interview taken
at the Collins Center. He asserts that the Commonwealth did not comply with the admissibility
requirements for G.G.’s statements in the video to qualify as hearsay exceptions under Code
§ 19.2-268.3. He also argues that admission of the video despite G.G.’s failure to recollect the
interview violated his right to confront an adverse witness under the Sixth Amendment of the
United States Constitution. We disagree.
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At trial, the court allowed the Commonwealth to play G.G’s videotaped interview with
Rhoda Miller after G.G. testified. Code § 19.2-268.3(B) establishes a hearsay exception for prior
statements by juvenile victims, providing in relevant part as follows:
An out-of-court statement made by a child who is under 13 years of age at the time of trial or hearing who is the alleged victim of an offense against children describing any act directed against the child relating to such alleged offense shall not be excluded as hearsay under Rule 2:802 of the Rules of the Supreme Court of Virginia if both of the following apply:

1. The court finds, in a hearing conducted prior to a trial, that the time, content, and totality of circumstances surrounding the statement provide sufficient indicia of reliability so as to render it inherently trustworthy . . . [and]

. . . .

2. The child:

a. Testifies; or

b. Is declared by the court to be unavailable as a witness[.]2

Following the pretrial hearing, the court found “sufficient indicia of reliability” to allow
introduction of the videotaped statement pursuant to Code § 19.2-268.3(B). However, appellant
asserts that G.G. did not “testify” as required by the statute because she could not recall the
substance of her videotaped statement, and therefore, he was not able to effectively cross-examine
her. As a result, he contends, admission of the interview violated his rights under the Confrontation
Clause.
“[T]he admissibility of evidence is within the discretion of the trial court and we will not
reject the decision of the trial court unless we find an abuse of discretion.” Midkiff v.
2 We note that the “out-of-court statement” would include a videotape or audiotape of the statement if otherwise authenticated.
- 9 -
Commonwealth, 280 Va. 216, 219 (2010). Whether G.G.’s statements are barred by the
Confrontation Clause is a question of law that we review de novo. Michels v. Commonwealth, 47
Va. App. 461, 465 (2006). We also conduct de novo review of any issue requiring statutory
interpretation. Ele v. Commonwealth, 70 Va. App. 543, 549 (2019).
The Sixth Amendment of the United States Constitution guarantees that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”
U.S. Const. amend. VI.3 However, “when the declarant appears for cross-examination at trial, the
Confrontation Clause places no constraints at all on the use of his prior testimonial statements.”
Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004). “[T]he Confrontation Clause guarantees only
an opportunity for effective cross-examination, not cross-examination that is effective in whatever
way, and to whatever extent, the defense might wish.” Abney v. Commonwealth, 51 Va. App. 337,
350 (2008) (quoting United States v. Owens, 484 U.S. 554, 559 (1988)). See also Delaware v.
Fensterer, 474 U.S. 15, 21-22 (1985) (per curiam) (“The Confrontation Clause includes no
guarantee that every witness called by the prosecution will refrain from giving testimony that is
marred by forgetfulness, confusion, or evasion.”).
Appellant contends that G.G. did not “testify” as required by Code § 19.2-268.3(B)(2)(a)
because she could not recall the forensic interview other than “going to a place where [she] sat in a
blue chair to talk with a video.” He argues that although G.G. was under oath and answered
questions on both direct and cross-examination about the videotaped statement and her lack of
memory, he was deprived of his right to effectively confront G.G. about the content of the
interview.
3 The Sixth Amendment is applicable to the states through the Due Process Clause of the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 403 (1965).
- 10 -
We rejected a similar argument in Campos v. Commonwealth, 67 Va. App. 690 (2017). In
Campos, the defendant argued that a victim’s prior statement was inadmissible because the child’s
“faulty memory at trial rendered her de facto not present for Sixth Amendment purposes, thereby
denying him effective confrontation.” Id. at 703. We found the argument “without merit” and
noted that “[w]itnesses commonly testify that they do not recall certain details or events.” Id. at
703, 704. The mere opportunity to confront a witness about these memory lapses subjects that
witness to an attack on his or her credibility. Id. at 704. Because the “credibility attack did not
result in an acquittal does not mean that appellant was denied his right of cross-examination.” Id.
(quoting Massey v. Commonwealth, 67 Va. App. 108, 134 (2016)).
Here, appellant cross-examined G.G about her inability to remember the interview. G.G.
admitted that she had no memory except “going to a place where [she] sat in a blue chair to talk
with a video.” During closing argument, appellant argued that G.G. was not credible because her
testimony was “all over the place” and she did not “remember anything” about the forensic
interview although it occurred within approximately one year of trial. Appellant’s opportunity to
question G.G. about her faulty memory and attack her credibility satisfied the Confrontation Clause
guarantee of effective cross-examination.
Appellant also argues that the Commonwealth failed to authenticate the interview because
G.G. was unable to identify it. “Ordinarily, the admissibility of videotape films is governed by the
same rules which apply to the admission of photographs or motion pictures.” Stamper v.
Commonwealth, 220 Va. 260, 271 (1979). At trial, the Commonwealth offered testimony from
Rhoda Miller, who identified the videotaped interview. Miller, the Collins Center employee,
testified that she interviewed G.G. and prepared the video of the interview. She told the jury that the
video was a “true and accurate copy and depiction of [her] interview” with G.G. This testimony
met the requirements for admission into evidence under Virginia Rule of Evidence 2:901, which
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provides that “authentication or identification as a condition precedent to admissibility is satisfied
by evidence sufficient to support a finding that the thing in question is what its proponent claims.”
Accordingly, the court did not err by admitting into evidence G.G.’s forensic interview at the
Collins Center.
C. Sufficiency of the Evidence
Appellant contends that the court erred by denying his motion to set aside the verdict
because the Commonwealth did not prove the element of penetration. In reviewing a challenge to
the sufficiency of the evidence, we affirm the trial court’s judgment “unless it appears from the
evidence that the judgment is plainly wrong or without evidence to support it.” Horton v.
Commonwealth, 255 Va. 606, 608 (1998) (quoting Higginbotham v. Commonwealth, 216 Va. 349,
352 (1975)). We view the evidence in the light most favorable to the Commonwealth as the
prevailing party at trial. See id.
Under Code § 18.2-67.1(A)(1), “[a]n accused shall be guilty of forcible sodomy if he or she
engages in cunnilingus . . . with a complaining witness” who is less than thirteen years of age.
“[P]enetration is an essential element of the crime of sodomy.” Ryan v. Commonwealth, 219 Va.
439, 444 (1978). However, the Commonwealth is not required to prove that a defendant penetrated
the victim’s vagina. Horton, 255 Va. at 613. “[P]enetration of any portion of the vulva is sufficient
to prove sodomy by cunnilingus. Penetration of the vaginal opening or vagina is not required.” Id.
Stated otherwise, “insertion of the defendant’s tongue into the victim’s vagina need not be shown.”
Love v. Commonwealth, 18 Va. App. 84, 88 (1994).
Although appellant relies on Moore v. Commonwealth, 254 Va. 184 (1997), and Ashby v.
Commonwealth, 208 Va. 443 (1968), neither case involves forcible sodomy by cunnilingus. In
Moore, the defendant was charged with rape, in violation of Code § 18.2-61, and the complaining
witness testified that the defendant “was rubbing” his penis “on” her vagina. 254 Va. at 185, 188.
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The Supreme Court reversed the conviction, finding the evidence insufficient to establish the crime
of rape when the defendant’s “penis [was] placed on, not in, the woman’s sexual organ.” Id. at 189.
In Ashby, the defendant’s conviction for forcible sodomy by fellatio, in violation of Code
§ 18.2-67.1(A)(1), was reversed because the only evidence of penetration consisted of the child’s
statement that he placed his mouth “on [the defendant’s] privates.” 208 Va. at 444. The Court
found that there was no evidence that the defendant’s penis actually penetrated the victim’s mouth,
an element of sodomy by fellatio. Id.
Forcible sodomy by cunnilingus, in violation of Code § 18.2-67.1(A)(1), requires
“penetration of any portion of the vulva – which encompasses the ‘external parts of the female sex
organs considered as a whole’ and includes, beginning with the outermost parts, the labia majora,
labia minora, hymen, vaginal opening and vagina.” Love, 18 Va. App. at 88 (quoting 4 J.E.
Schmidt, Attorneys’ Dictionary of Medicine V-106 (18th ed. 1990)). Thus, penetration of any
portion of the vulva, including the labia majora, is sufficient to prove sodomy by cunnilingus. See
id. at 89; Horton, 255 Va. at 613.
Here, G.G. testified that appellant touched her vagina with his tongue. Although she
admitted that she did not know the meaning of the terms “labia majora” or “vulva,” she described
the area where appellant touched her as her “private area.” During her forensic interview, G.G.
stated that appellant “open[ed]” her vagina and “lick[ed] around all of [her] vagina.” She also
gestured to a picture of a vagina on the table when she was indicating where appellant touched her.
Viewed in the light most favorable to the Commonwealth, this evidence proved that appellant
penetrated not only G.G.’s vulva, but also specifically her vagina. See Horton, 255 Va. at 614.
Therefore, appellant’s conviction for forcible sodomy by cunnilingus, in violation of Code
§ 18.2-67.1(A)(1), was not “plainly wrong or without evidence to support it.” Id. (quoting
Higginbotham, 216 Va. at 352).

Outcome: For the foregoing reasons, we affirm the judgment of the trial court.

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