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Dilliraj Bista
v.
Commonwealth of Virginia
0904214.
Court of Appeals of Virginia.
Sep 12, 2023.
Published
Pinpoint authority: bottom 20%

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Decker, Judges Humphreys, Beales, Huff, O’Brien, AtLee, Malveaux, PUBLISHED

Athey, Fulton, Ortiz, Causey, Friedman, Chaney, Raphael, Lorish, Callins and White Argued at Richmond, Virginia

DILLIRAJ BISTA OPINION BY v. Record No. 0904-21-4 JUDGE MARY GRACE O’BRIEN SEPTEMBER 12, 2023 COMMONWEALTH OF VIRGINIA

UPON A REHEARING EN BANC

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Stephen C. Shannon, Judge

Dawn M. Butorac, Public Defender, for appellant.

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

A jury convicted Dilliraj Bista of anal sodomy of a child under the age of 13, in violation of Code § 18.2-67.1,1 and aggravated sexual battery, in violation of Code § 18.2-67.3.2 On appeal, a three-judge panel of this Court heard Bista’s challenges to the admission of the child’s

out-of-court statements under Code § 19.2-268.3 and to the admission of a video depicting the child’s forensic interview, which he argued violated his right to confrontation under the Sixth

Amendment of the United States Constitution.3 The panel affirmed the convictions with one Although forcible sodomy under Code § 18.2-67.1 includes “cunnilingus, fellatio, anilingus, or anal intercourse,” the indictment here specified only “anal intercourse.”

[*1][*2]

The jury acquitted Bista of a related rape charge.

[*3]

Bista also argued that the court erred by rejecting two proffered jury instructions and limiting the scope of his closing argument. The panel found no error, and Bista did not seek en banc review of those issues. judge dissenting as to the Confrontation Clause issue. Bista v. Commonwealth, 76 Va. App. 184

(2022). This Court granted Bista’s petition for rehearing en banc and agreed to rehear the following assignment of error:

The trial court erred by allowing the out[-]of[-]court statements of [R.P.]4 to be admitted as evidence pursuant to . . . Code § 19.2-268.3 after she had been declared incompetent to testify at trial. Even if her out[-]of[-]court statements satisfied the requirements of . . . Code § 19.2-268.3, the trial court further erred in admitting her statement to the forensic interviewer as it violated . . . Bista’s confrontation rights under the [Sixth] Amendment.

BACKGROUND

I. Material Facts

In August 2018, R.P. was 11 years old and living with her younger brother and parents, Hem and Rita. R.P. has autism spectrum disorder, which impairs her socialization and ability to learn and communicate. R.P.’s family had immigrated from Nepal and formed a close relationship with Bista and his family, who were also Nepali. R.P. referred to Bista as “grandpa” and communicated with him through gestures and basic English and Nepali phrases.

On August 17, 2018, Bista had been staying at R.P.’s home while his wife and son were in Nepal. That evening, Hem prepared dinner in the kitchen with his own parents nearby, while

Bista was outside on the back deck. Around 8:30 p.m., Rita went upstairs to shower and, when she returned downstairs at 8:45 p.m., she found Bista kneeling behind R.P. on the living room floor. R.P. was on her hands and knees in a “dog position” with her shorts and underpants pulled down. Rita screamed and took R.P. upstairs to question her with Hem. R.P. told her parents that

Bista had “licked [her] on the front and back” and “put it on the front and tried to put it on the back.” Rita put R.P.’s clothing in a plastic grocery bag and tied it shut. Bista initially denied any wrongdoing, assuring Rita and Hem that he had been “playing” with the child, but he later admitted to them that he had “licked [her] private part.” R.P.’s parents did not report the incident to police, fearing that the information would harm their family’s status in the Nepali community.

Bista moved to Hawaii the following week.

On January 29, 2019, R.P. told her special education teacher, Brian Rothe, that “the previous summer in August” she had been “raped by a family friend” who “looked like a grandpa.” She told Rothe that the man had “gone back to Nepal” after her mother caught him

“touching her inappropriately” and “kicked him out of the house.” Rothe notified school

administrators, who alerted Child Protective Services (CPS) about the allegations. The next day, CPS contacted Fairfax County Detective Thomas Gadell, Jr., to investigate.

At Detective Gadell’s request, social worker Maria Bonilla conducted a video-recorded forensic interview of R.P. at SafeSpot Children’s Advocacy Center on February 27, 2019.5

Michele Thames, the executive director of SafeSpot, testified at a pretrial hearing that a “forensic interview” is “conducted in [a] neutral setting by a trained professional forensic interviewer”

when “a child makes an allegation of child abuse.” SafeSpot accepts “referrals” to conduct the interviews exclusively from “law enforcement and [CPS].” Thames stated that the techniques

used in a forensic interview are “evidence-based” with questions that are “narrative and non-leading as best [as] can be.” She explained that “[w]hen you are talking to a child you want the child to share information that they have. You don’t want to ask them questions telling them what the answer is or may be.”

The interview lasted one hour and ten minutes. After engaging in small talk with Bonilla for approximately 25 minutes, R.P. described the assault. R.P. told Bonilla that “Grandpa Bista” and his family had visited her home for a “dinner party.” Bista found R.P. alone in the living room and forcefully kissed her by grabbing her neck. R.P. said she tried to run away but Bista pulled her shirt “nine or ten times,” causing her to fall. Bista forced R.P. into a “dog” position and removed her shorts. Pointing to her groin, R.P. explained that Bista’s “mouth was going crazy” as he kneeled behind her and attempted to “lick” her “private part.” R.P. also said that

Bista’s penis “tr[ied] to go in her butt,” but she later stated that he actually had anally sodomized her. In sum, 2 minutes and 34 seconds of the interview were spent discussing Bista’s anal penetration of R.P. She stated that Bista had used his “flip phone” during the assault to

video-record her “butt” and “private parts,” but someone had since deleted the videos and the phone was “lost.”

Police collected the grocery bag containing R.P.’s clothing worn during the assault. After

Bista’s arrest and extradition from Hawaii, Detective Gadell obtained a buccal swab of his DNA.

Police also obtained buccal swabs of DNA from R.P. and her father Hem. Subsequent testing established that Bista’s DNA was in the “interior crotch” of R.P.’s underpants. In June 2019, a forensic nurse conducted a sexual assault examination and concluded that R.P. had “no injuries” to her vagina or anus.

II. Material Proceedings Below

A. Preliminary Hearing and Indictment

A preliminary hearing occurred on September 5, 2019 in the Fairfax County Juvenile and Domestic Relations District Court. The Commonwealth had provided Bista a copy of R.P.’s forensic interview video on August 15, 2019, three weeks earlier.

[*4]

At the hearing, R.P. testified6 that Bista’s wife drove him to R.P.’s home before the incident. R.P. stated that Bista initially “just touched [her] private parts without taking [her] shorts off.” Bista then removed his pants and exposed his “penis” before inserting it into R.P.’s vagina and “right into [her] butt.” For the next “forty minutes,” Bista kept “doing th[is] stuff over and over again,” although R.P. “yelled at [Bista]” and “tried to leave the room several times.”

Bista cross-examined R.P. about statements she made during the forensic interview.

Some of these statements were not raised during her direct examination, and others contradicted

her testimony. The Commonwealth did not object to any of the cross-examination. For example, at the preliminary hearing, R.P. testified that Bista did not “pull [her] shirt” during the assault, as she had related in the forensic interview, but he “prevented [her] from leaving” the room by “blocking” the entrance. She also testified that Bista “left his phone in [a] bag” during the assault, and—again, contrary to earlier statements she made during the forensic interview— he did not use it to photograph or record her. R.P. explained that she learned the terms “penis,”

“vagina,” and “sex” through online research as a 9-year-old and, from the time she was “8 to 10 years old,” she had watched videos of “people having sex” on the website “Pornhub.”

In the forensic interview, R.P. described the anal penetration as “so uncomfortable” and made her feel like “she was going to throw up.” During the preliminary hearing, R.P. also testified repeatedly on both direct and cross-examination about Bista’s anal penetration. On direct examination, she stated, “he put it . . . into my butt” when she was questioned about what

Bista did with his penis. On cross-examination, R.P. expanded on this testimony, referring again to Bista putting his penis “in my butt” and explaining that “first, he put it in my vagina and then he put it into my butt.” She also stated that Bista had his penis “in [her] butt” longer than in her vagina.

[*5]

The JDR court certified the charges to the grand jury, which subsequently indicted Bista for sodomy of a child under the age of 13 and aggravated sexual battery. The Commonwealth also directly indicted Bista for rape.

B. Hearing on Motion to Admit Statements under Code § 19.2-268.3

Before trial, the Commonwealth moved to admit R.P.’s out-of-court statements to her

parents, teacher Brian Rothe, and forensic interviewer Maria Bonilla under Code § 19.2-268.3, which makes admissible certain hearsay statements of child victims of specified crimes. At an evidentiary hearing, Rita testified that she saw Bista kneeling “very close” behind R.P., whose shorts were “below her knees.” When questioned, R.P. told Rita that Bista “took his private part in [her] front and back both sides” and “entered it.” R.P. also said that Bista “tried to put his organ inside her front and back” and “licked” her “private parts.” Rita denied that R.P. had ever watched internet pornography and maintained that R.P. “never lies.” Rita described R.P. as

“mildly autistic” with a “mental and social” age of a “four[-] to five-year-old child.”

Hem testified that immediately after the incident, R.P. said that Bista had “put his private

part into [her] private part” and “licked it.” Hem also denied that R.P. had ever lied to him, explaining that she suffered from cognitive deficits and could not distinguish “what is bad and what is good” because of her autism.

Rothe could not “remember exactly” whether R.P. had reported that her assailant had

“attempted” or “actually accomplished” the alleged acts of sexual abuse. He also did not recall

R.P. “saying anything about being licked.” R.P. required an Individualized Education Program

(IEP) at school because of her autism; Rothe explained that IEPs are designed to accommodate specialized needs of children with “learning” or “emotional” disabilities.

[*6]

Bonilla was no longer employed at SafeSpot, but the Commonwealth called Michele

Thames, SafeSpot’s executive director, to authenticate the video from R.P.’s forensic interview.

Thames also confirmed that Bonilla had followed “appropriate interview techniques.” The court reviewed the video.

The court considered the factors enumerated in Code § 19.2-268.3 and found that, as the victim, R.P. had “personal knowledge of the event.” Additionally, “extrinsic evidence”

established Bista’s “opportunity to commit the act,” including Rita’s personal observation of “physical interactions” that were “consistent with [R.P.’s] statement.” The court found no motive for R.P. or her parents to fabricate the accusation, and it found Rothe, Rita, and Hem’s

testimony credible. Finally, the court found that R.P. provided a “very detailed recollection of the event” in the forensic interview, despite “some inconsistencies” and being “mildly autistic.”

The court concluded that “sufficient indicia of reliability” rendered her statements “inherently trustworthy” and therefore admissible under Code § 19.2-268.3.7

C. Hearing on R.P.’s Competency and Bista’s Motion to Exclude Forensic Interview Video

Bista then sought to exclude the video of R.P.’s forensic interview based on the Sixth

Amendment’s Confrontation Clause, and he also challenged R.P.’s competency to testify at trial.

The court conducted another evidentiary hearing.

Detective Gadell testified that at a pre-hearing meeting with the prosecutor, R.P. had disclosed that some of her preliminary hearing testimony was false. Specifically, R.P. said that

Bista’s wife had been “on vacation” during the incident and it was untrue that R.P. watched internet pornography. Hem testified regarding the meeting and denied that R.P. had intentionally lied. Rather, he explained that R.P.’s autism diminished her capacity to answer questions. Hem stated that R.P. “cannot focus a long time” and “will just say things that aren’t true without thinking about it” unless granted a “break” from questioning. Hem also denied that he or Rita had ever “coached” R.P.’s testimony about the assault.

[*7]

R.P. was examined regarding her comprehension of an oath and ability to tell the truth.

The prosecutor asked, “[I]f I were to say this wall behind you is black[,] w[ould] that be telling the truth or telling a lie?” R.P. replied, “Telling the truth,” despite confirming that the wall was

“beige.” During cross-examination, R.P. told defense counsel, “The color of your car is probably 2268 or something.” When defense counsel asked the number of people to whom R.P. had reported the assault, R.P. described an unrelated incident about being contacted via social media.

R.P. admitted that she had testified to “false facts” at the preliminary hearing: she stated that Bista’s wife had not driven him to her home and she had “purposely lied” about watching internet pornography. She explained that, after the preliminary hearing, “My mom said that I don’t watch the videos” and “said I was lying.” R.P. testified, “My mom is trying to make me not think I watch” and “told me that it was a secret” and “does not want to tell that to the judge.”

R.P. also admitted that she had lied to her parents and teachers regarding unrelated matters. She

maintained, however, that she was “telling the truth” about the assault and again described it in detail. Defense counsel asked R.P. specifically whether she had “ever changed [her] story about” the assault. R.P. responded, “Yeah,” but maintained, “I just changed the part where

[Bista’s] grandma came into the house.”8

The court found that R.P. had the capacity to “observe,” “recall,” and “communicate” events “to the extent that she has alleged to have been at home with [Bista] and has a recollection.” The court also found that Rita “had some influence” on R.P’s memory of “whether she was sodomized.” On balance, the court determined that R.P. did not have the “capacity to comprehend the legal significance of an oath,” “distinguish truth from a falsehood,” or “understand the questions propounded and make intelligent answers.” The court therefore concluded that R.P. was “not competent to testify at this time.”

[*8]

The court deferred ruling on the admissibility of R.P.’s forensic interview statements and set a hearing for further argument.

D. Hearing on Motions to Reconsider Admissibility under Code § 19.2-268.3 and to Exclude Forensic Interview on Confrontation Clause Grounds

Bista next asked the court to reconsider its ruling on the admissibility of R.P.’s out-of-court statements under Code § 19.2-268.3. The court denied the motion, expressly considering each statutory factor. The court concluded that “the totality of the circumstances” established that R.P.’s out-of-court statements to her parents, teacher, and Bonilla were

“inherently trustworthy,” notwithstanding R.P.’s “age,” “mental infirmities,” and prior “inconsistent statements.” The court also found that the DNA evidence and Rita’s testimony describing the incident sufficiently corroborated Bista’s alleged acts of sexual abuse.

On the motion to exclude the forensic interview video on Confrontation Clause grounds, the Commonwealth “concede[d] that statements made during [R.P.]’s forensic interview [are] likely testimonial hearsay” but argued that Bista’s “Sixth Amendment right to confront R.P. regarding the allegations ha[d] been satisfied” because “R.P.’s forensic interview was substantially similar to her testimony at the preliminary hearing, and because [defense] counsel was given an adequate opportunity to cross[-]examine R.P. about the allegations at the preliminary hearing.”

[*9]

During argument, Bista’s counsel conceded that, at the preliminary hearing, she had a copy of the forensic interview video and that the Commonwealth never objected during R.P.’s cross-examination. Bista’s counsel argued, however, that R.P.’s cross-examination was insufficient because at the time “Bista was not charged with the crime of rape,” R.P. was likely incompetent because of her autism, counsel had not received complete discovery concerning

R.P.’s statements about the incident or school records disclosing R.P.’s IEP history, and R.P. later admitted to testifying falsely at the preliminary hearing.

The court found that R.P.’s statements to Bonilla during the forensic interview were testimonial hearsay but Bista had “the opportunity at the preliminary hearing to cross[-]examine

[R.P.] about the specific allegations that she’s making in the statements.” The court concluded that admitting R.P.’s forensic interview statements would not violate the Confrontation Clause.[9]

E. Trial and Post-Conviction Proceedings

R.P. did not testify at trial. During opening statements, the Commonwealth and Bista advised the jury that R.P. was unavailable because the court had found her incompetent to testify.

The Commonwealth introduced the video of R.P.’s forensic interview and the transcript

of her preliminary hearing testimony. Rita and Hem testified regarding the August 2018 assault, and Rothe recounted R.P.’s disclosures. The forensic nurse who had conducted R.P.’s June 2019 sexual assault examination testified that the results were “normal,” meaning “no injuries were found.”

Mimi Smith, a forensic scientist with the Virginia Department of Forensic Science, qualified as an expert in “forensic biology and DNA and body fluids.” Using “Y-chromosome” The guidelines for filing electronic briefs and appendices can be found at www.courts.state.va.us/online/vaces/resources/guidelines.pdf.

COURT OF APPEALS OF VIRGINIA

Present: Judges O’Brien, Lorish and Senior Judge Annunziata PUBLISHED

Argued at Alexandria, Virginia

DILLIRAJ BISTA OPINION BY v. Record No. 0904-21-4 JUDGE ROSEMARIE ANNUNZIATA DECEMBER 6, 2022 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Stephen C. Shannon, Judge

Dawn M. Butorac, Public Defender, for appellant.

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

A jury convicted Dilliraj Bista of sodomy of a child under the age of thirteen years by a person eighteen years of age or older and aggravated sexual battery, in violation of Code

§§ 18.2-67.1 and 18.2-67.3, respectively.1 Consistent with the jury’s verdict, the trial court sentenced Bista to life plus twenty years’ incarceration. Bista challenges his convictions on several grounds. First, Bista argues that the trial court erroneously admitted the child’s out-of-court statements under Code § 19.2-268.3. As a matter of first impression, we must decide whether that statute conditions admissibility on the declarant’s competency to testify. We

hold that it does not. Bista also argues that the trial court’s admission of a video depicting the child’s forensic interview violated his right to confrontation under the Sixth Amendment of the United States Constitution. Next, Bista contends that the trial court erroneously rejected two The jury acquitted Bista of a related charge of rape of a child under the age of thirteen years by a person eighteen years of age or older.

proffered jury instructions. Finally, he argues that the trial court improperly limited the scope of his closing argument. For the following reasons, we affirm the trial court’s judgment.

BACKGROUND

On appeal, we review the evidence “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 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 to be drawn therefrom.”

Cady, 300 Va. at 329 (quoting Commonwealth v. Perkins, 295 Va. 323, 324 (2018)).

In August 2018, R.P. was eleven years old and living with her younger brother and parents, Hem and Rita. R.P. suffers from autism spectrum disorder, which impairs her socialization, memory, and ability to learn and communicate. Hem and Rita had immigrated from Nepal and formed a close relationship with Bista and his family, who were also Nepali.

R.P. referred to Bista as “grandpa” and communicated with him through gestures and basic

English and Nepali phrases.

On August 17, 2018, Bista had been staying at R.P.’s home for several days while his wife visited Nepal. That evening, Hem prepared dinner in the kitchen with his parents while

Bista smoked a cigarette outside on the “back deck.” R.P. and her brother were alone in a living

room on the opposite side of the house. Around 8:30 p.m., Rita went upstairs to shower and when she returned downstairs at 8:45 p.m., she found Bista kneeling behind R.P. on the living room floor. R.P. was on her hands and knees in a “dog position” with her underwear and shorts pulled down. Rita screamed and took R.P. upstairs to question her with Hem. R.P. told her parents that Bista had “licked [her] on the front and back” and “put it on the front and tried to put it on the back.” Rita removed R.P.’s clothing and placed it inside a plastic grocery bag, tying the bag closed. Bista initially denied any wrongdoing, assuring Rita and Hem that he had been

“playing” with R.P., but he later admitted to them that he had “licked [her] private part.” R.P.’s parents did not report the incident to police, fearing that disclosure would harm their family’s prestige in the Nepali community. Bista moved to Hawaii the following week.

On January 29, 2019, R.P. told her special education teacher, Brian Rothe, that “the previous summer in August” she had been “raped by a family friend” who “looked like a grandpa.” She told Rothe that the man had “gone back to Nepal” after her mother caught him

“touching [her] inappropriately” and had “kicked him out of the house.” Rothe notified R.P.’s parents, and Child Protective Services (CPS) was notified of the allegations. The next day, CPS contacted Fairfax County Detective Thomas Gadell, Jr., to investigate.

At Gadell’s request, Maria Bonilla conducted a video-recorded forensic interview of R.P. at SafeSpot Children’s Advocacy Center.2 Describing the incident, R.P. told Bonilla that

“Grandpa Bista” and his family had visited her home for a “dinner party.” Bista found R.P. alone in the living room and forcefully kissed her by grabbing her neck. R.P. said she tried to run away but Bista pulled her shirt “nine or ten times,” causing her to fall. Bista forced R.P. into a “dog” position and removed her shorts. Pointing to her groin, R.P. explained that Bista’s

“mouth was going crazy” as he kneeled behind her and attempted to “lick” her “private part.”

R.P. also said that Bista’s penis “tr[ied] to go in her butt.” She stated that Bista had used his “flip phone” during the assault to video record her “butt” and “private parts,” but someone had since deleted the videos and the phone was “lost.”

Police collected the grocery bag containing R.P.’s clothing worn during the assault. After

Bista’s arrest and extradition from Hawaii, Gadell interviewed him3 and obtained a buccal swab of his DNA. Police also obtained buccal swabs of R.P.’s and Hem’s DNA. Subsequent DNA testing established that Bista could not be eliminated as a contributor to a DNA mixture discovered in the “interior crotch” of R.P.’s underpants. In June 2019, a forensic nurse conducted a “wellness exam” and concluded that R.P. had “no injuries” to her vagina or anus.

Material Proceedings Below

A. Preliminary Hearing and Indictment

On September 5, 2019, R.P. testified4 at a preliminary hearing that Bista’s wife drove him to her home before the incident. R.P. stated that Bista initially “just touched [her] private parts without taking [her] shorts off.” Bista then removed his pants and exposed his “penis” before inserting it into R.P.’s vagina and “butt.” For the next “forty minutes,” Bista kept “doing these stuff over and over again,” although R.P. “yelled at [Bista]” and “tried to leave the room several times.”

During cross-examination, R.P. testified that Bista did not “pull [her] shirt” during the assault, but he “prevented [her] from leaving” the room by “blocking” the entrance. Bista also

“left his phone in [a] bag” during the assault and contrary to earlier statements she made during the forensic interview, he did not use it to photograph or record her.[5] R.P. explained that she learned the terms “penis,” “vagina,” and “sex” through online research as a nine-year-old, and since she was “8 to 10 years old,” R.P. had watched videos of “people having sex” on the website “Pornhub.”

The district court certified the charges to the grand jury, which subsequently indicted

Bista for sodomy of a child under the age of thirteen years and aggravated sexual battery. The Commonwealth also directly indicted Bista for rape.[6]

B. Hearing on Motion to Admit Statements under Code § 19.2-268.3

Before trial, the Commonwealth moved the trial court to admit R.P.’s out-of-court disclosures to her parents, teacher, and Bonilla under Code § 19.2-268.3, which makes admissible certain hearsay statements of child victims of specified crimes. Following briefing by counsel, the trial court conducted an evidentiary hearing at which Rita testified that she saw Bista

kneeling “very close” behind R.P., whose shorts were “below her knees.” When questioned, R.P. told Rita that Bista “tried to put his organ inside [her] front and back” and “licked” her

“private parts.” Rita denied that R.P. had ever watched internet pornography and maintained that

R.P. “never lies.” She explained that R.P. was “mildly autistic” and had the “mental” age of a

“four to five-year-old child.”

Hem testified that immediately after the incident, R.P. said that Bista had “put his private part into [her] private part” and “licked it.” Hem also denied that R.P. had ever lied, explaining that she suffered from cognitive deficits and could not distinguish “what is bad and what is good” because of her autism.

Rothe could not “remember exactly” whether R.P. had reported that her attacker had

“attempted” or “actually accomplished” the alleged acts of sexual abuse. He also did not recall R.P. “saying anything about being licked.” R.P. required an IEP7 at school because of her autism. In Rothe’s experience, she engaged in “attention-seeking behavior” at school—

including “randomly” telling stories and striking “promiscuous poses”—but, to his knowledge, she had never fabricated an allegation of sexual abuse.

Bonilla was no longer employed at SafeSpot, but Michelle Thames, SafeSpot’s executive director, authenticated the video from R.P.’s forensic interview; Thames also confirmed that

Bonilla had followed “appropriate interview techniques.”8

The trial court considered the factors enumerated in Code § 19.2-268.3 and found that, as the victim, R.P. had “personal knowledge of the event.” In addition, “extrinsic evidence”

established Bista’s “opportunity to commit the act,” including Rita’s personal observations of “physical interactions” that were “consistent with [R.P.]’s statement.” The trial court found no motive for R.P. or her parents to fabricate the accusations, and it found Rothe, Rita, and Hem’s testimony credible. Finally, the trial court found that R.P. provided “a very detailed recollection of the event,” despite “some inconsistencies” and being “mildly autistic.” Thus, the trial court concluded that “sufficient indicia of reliability” rendered her statements “inherently trustworthy” and therefore admissible under Code § 19.2-268.3.9 C. Hearing on Victim’s Competency and Bista’s Motion to Exclude Forensic Interview Video

Bista then moved to exclude the video of R.P.’s forensic interview from trial under the Sixth Amendment’s Confrontation Clause. Bista also requested an evidentiary hearing to determine R.P.’s competency to testify. Following additional briefing by counsel,10 the trial court conducted another evidentiary hearing.

Detective Gadell testified that at a pre-hearing meeting with the prosecutor, R.P. had disclosed that some of her preliminary hearing testimony was false. R.P. said that Bista’s wife had been “on vacation” during the incident and it was untrue that R.P. watched internet pornography. Hem testified regarding the meeting and denied that R.P. had intentionally lied.

Rather, R.P.’s autism diminished her capacity to answer questions. Hem explained that R.P.

“cannot focus a long time” and “will just say things that aren’t true without thinking about it” unless granted a “break” from questioning. Hem also denied that he or Rita had ever “coached”

R.P.’s testimony regarding the assault.

R.P. was examined regarding her comprehension of an oath and ability to tell the truth.

The prosecutor asked, “[I]f I were to say this wall behind you is black w[ould] that be telling the truth or telling a lie?” R.P. replied, “[t]elling the truth,” despite confirming that the wall was

“beige.” During cross-examination, R.P. told counsel, “The color of your car is probably 2268 or something.” When defense counsel asked the number of people to whom R.P. had reported the assault, R.P. described an unrelated incident in which an “Indian person” contacted her on social media and said that she was “sexy.”

R.P. admitted that she had testified to “false facts” at the preliminary hearing; she stated that Bista’s wife had not driven him to her home, and she had “purposely lied” about watching internet pornography. She explained that after the preliminary hearing, “My mom said that I

10 In their briefs, the parties did not dispute that Bonilla was unavailable to testify at trial.

don’t watch the videos” and said “I was lying.” Continuing, R.P. testified, “My mom is trying to make me not think I watch” and “told me that it was a secret” and “does not want to tell that to the judge.” R.P. also admitted that she had lied to her parents and teachers regarding unrelated

matters. She maintained, however, that she was “telling the truth” about the assault and again described it in detail. Defense counsel asked R.P. specifically whether she had “ever changed

[her] story about” the assault. R.P. responded, “Yeah,” but maintained, “I just changed the part where [Bista’s] grandma came into the house.”11

The trial court found that R.P. had the capacity to “observe,” “recall,” and “communicate” events “to the extent that she has alleged to have been at home with [Bista] and has a recollection.” The trial court also found that Rita “had some influence” on R.P.’s memory of “whether she was sodomized.” On balance, the trial court determined that R.P. did not have the “capacity to comprehend the legal significance of an oath,” “distinguish truth from a falsehood,” or “understand the questions propounded and make intelligent answers.”

Accordingly, the trial court concluded that R.P. was “not competent to testify at this time.”

On the motion to exclude the video of the forensic interview, the trial court concluded that Bonilla’s statements were not testimonial hearsay because they were not offered for their truth, but to “give context” to R.P.’s responses during the interview. Accordingly, the trial court ruled those statements admissible. The trial court deferred ruling on the admissibility of R.P.’s interview statements and set a hearing for further argument.

D. Hearing on Motion to Reconsider Ruling on Admissibility under Code § 19.2-268.3

Bista moved the trial court to reconsider its ruling on the admissibility of R.P.’s out-of-court statements under Code § 19.2-268.3. In denying Bista’s motion, the trial court explicitly considered each of the statutory factors and reiterated its previous findings. In addition, the trial court found that no evidence established “that [R.P] was in pain or distress when making the statements.” The trial court concluded that “the totality of the circumstances” established that R.P.’s out-of-court statements to her parents, teacher, and Bonilla were

“inherently trustworthy,” notwithstanding R.P.’s “age,” “mental infirmities,” and prior “inconsistent statements.” The trial court also found that the DNA evidence, Bista’s inculpatory admissions, and Hem and Rita’s testimony describing the incident sufficiently corroborated

Bista’s alleged acts of sexual abuse.

On the motion to exclude the forensic interview video, the trial court concluded that

R.P.’s statements to Bonilla were testimonial hearsay but Bista previously had “the opportunity

at the preliminary hearing to cross examine [R.P.] about the specific allegations.”12 Accordingly, the trial court ruled those statements admissible at trial.[13]

E. Trial and Post-Conviction Proceedings

Neither R.P. nor Bonilla testified at trial. During opening statements, the Commonwealth and Bista advised the jury that R.P. was unavailable because the trial court had found her incompetent to testify.

The Commonwealth introduced the video of R.P.’s forensic interview and a transcript of her preliminary hearing testimony. The nurse who had conducted the “wellness check” testified

12 During argument on the motion, Bista’s counsel conceded that at the preliminary hearing, she had a copy of the forensic interview video and that the Commonwealth did not object during R.P.’s cross-examination. Defense counsel argued, however, that R.P.’s cross-examination during the preliminary hearing was insufficient because at the time “Bista was not charged with the crime of rape,” R.P. was likely incompetent because of her autism, counsel had not received complete discovery concerning R.P.’s statements regarding the incident or school records disclosing R.P.’s history of IEPs, and R.P. later admitted to testifying falsely at the preliminary hearing. [13] The trial court also granted the Commonwealth’s separate motion to admit a transcript of R.P.’s preliminary hearing testimony at trial, over Bista’s objection.

that the results of her examination of R.P. were “normal.” Rita and Hem testified regarding the incident, and Rothe recounted R.P.’s disclosures.

Mimi Smith, a senior forensic analyst with the Virginia Department of Forensic Science, was qualified as an expert in “forensic biology and DNA and body fluids.” Using

“Y-chromosome” DNA analysis, she developed a “major profile” from a DNA mixture found in the interior of the “crotch” of the underpants R.P. had worn during the assault; the major profile comprised DNA from two male contributors. Smith eliminated Hem as a contributor but could

not eliminate Bista—or “any of his patrilineally related male relatives”—as a contributor to the major profile.[14] Bista was the only member of his family present during the alleged assault.

During his case-in-chief, Bista introduced a transcript of R.P.’s testimony from the competency hearing and the trial court’s order finding her incompetent to testify. Dr. Brandie

Bartlett, an expert in “clinical and child psychology,” testified that “people with autism have more difficulty maintaining lies.” Based on her review of R.P.’s school records,15 the transcript of her preliminary hearing testimony, and the forensic interview video, Dr. Bartlett opined that

R.P. had “memory issues” and a limited capacity to “recall the details of a story in the correct sequence.” In addition, Dr. Bartlett noted that R.P.’s academic history reflected that she required

IEPs, failed standardized tests, and exhibited “hyperactivity,” “inattentiveness,” and “significant delays in expressive and receptive language.”

Dr. Thomas McClintock, an expert in “forensic DNA analysis,” testified that DNA can transfer among surfaces and degrade from contaminants. He opined that because R.P.’s clothing

4 We use initials to protect the minor child’s privacy.
5 Detective Gadell arranged the forensic interview. He provided Bonilla details of the suspected abuse before she conducted the interview. Detective Gadell watched the interview on a closed-circuit television in an adjacent room, and Bonilla conferred with him to “make sure [he] didn’t have any additional questions” before concluding the interview.
6 Bista did not challenge R.P.’s competency to testify at the preliminary hearing.
7 The court ordered the Commonwealth to redact statements from the forensic interview video that were irrelevant to “the purported acts directed against [R.P.].” From context, it appears that R.P. was referring to Bista’s wife—not grandmother— 8 driving him to R.P.’s house.
9 The court also granted the Commonwealth’s separate motion to admit a transcript of R.P.’s preliminary hearing testimony at trial, over Bista’s objection. Bista did not assign error to that ruling. - 10 - DNA analysis, she developed a “major profile” from a DNA mixture found in the interior of the “crotch” of the underpants R.P. had worn during the assault; the major profile comprised DNA from two male contributors. Smith eliminated Hem as a contributor but could not eliminate Bista—or “any of his patrilineally related male relatives”—as a contributor to the major profile. Bista was the only member of his family present during the assault. During his defense, Bista called Dr. Thomas McClintock, an expert in forensic DNA analysis. Dr. McClintock testified that DNA can transfer among surfaces and degrade from contaminants. He opined that because R.P.’s clothing had been stored in a tied plastic bag for approximately six months, the DNA in R.P.’s underpants may not have originated from Bista’s direct physical contact and that “moisture” and “microbial growth” potentially contaminated the DNA. Dr. McClintock also testified that he had reviewed Smith’s “raw data” and “could not exclude” Hem as a contributor to the major profile of the DNA mixture recovered from the interior crotch of R.P.’s underpants. In rebuttal, Smith testified that she observed no evidence of mold or DNA degradation during her analysis. Bista introduced a transcript of R.P.’s testimony from the competency hearing and the court’s order finding her incompetent to testify. He also called Dr. Brandie Bartlett, an expert in clinical and child psychology, who testified that “people with autism have more difficulty maintaining lies.” Based on her review of R.P.’s school records,10 the transcript of her preliminary hearing testimony, and the forensic interview video, Dr. Bartlett opined that R.P. had “memory issues” and a limited capacity to “recall the details of a story in the correct sequence.” Additionally, Dr. Bartlett noted that R.P.’s academic history reflected that she required IEPs,
10 The court admitted R.P.’s school records into evidence. - 11 - failed standardized tests, and exhibited “hyperactivity,” “inattentiveness,” and “significant delays in expressive and receptive language.” The Commonwealth argued to the jury that R.P.’s allegations were credible, emphasizing consistencies among R.P.’s out-of-court statements, prior testimony, and the DNA evidence. Bista countered that the “Commonwealth’s entire case rises and falls on whether or not you believe [R.P.]” and asserted there was “absolutely no reason” to do so. Citing school records evaluating R.P.’s learning and behavioral patterns, Bista argued that she was unable to provide an accurate account or discern the truth. Bista further argued that autistic children “can’t maintain their lie and that’s exactly what we have here.” He urged the jury to disbelieve R.P. because her competency hearing testimony proved that she lacked any “understanding of what it means to tell the truth or to tell a lie,” which he asserted was the reason R.P. had been declared incompetent to testify. Noting multiple inconsistencies in R.P.’s accounts—including numerous examples from R.P.’s forensic interview statements—Bista argued that R.P. “is incredibly influenced by things her parents say,” her assertions were sometimes physically impossible, and “[w]e know that every single thing that [she] has said has been inconsistent with something previously.” Bista concluded that R.P. “cannot be believed.” The jury convicted Bista of sodomy and aggravated sexual battery but acquitted him of rape. Bista moved to set aside the verdict, arguing inter alia that R.P.’s out-of-court statements did not meet the standard for admissibility under Code § 19.2-268.3 and the admission of the forensic interview video violated his Confrontation Clause right. Bista reiterated that R.P.’s cross-examination during the preliminary hearing did not adequately protect his constitutional right because, after the hearing, the Commonwealth brought the additional rape charge, Bista received more discovery concerning R.P.’s out-of-court statements and school records, R.P. - 12 - admitted to falsely testifying at the preliminary hearing, and the court found her incompetent to testify. In response, the Commonwealth reiterated that R.P.’s statements were admissible under Code § 19.2-268.3 because they were inherently trustworthy and corroborated by other evidence. Regarding the forensic interview, the Commonwealth argued for the first time that R.P.’s statements to Bonilla were nontestimonial and therefore did not implicate the Confrontation Clause. Even if the statements were testimonial, the Commonwealth argued that Bista’s constitutional right was satisfied because he was able to confront R.P. during the preliminary hearing. After considering the filings and argument of counsel, the court ruled that “[t]he motion to set aside the verdict respectfully is denied.” ANALYSIS Standard of Review Appellate courts “review a trial court’s decision to admit or exclude evidence using an abuse of discretion standard” and “will not disturb a trial court’s decision to admit evidence absent a finding of abuse of that discretion.” Kenner v. Commonwealth, 299 Va. 414, 423 (2021) (quoting Avent v. Commonwealth, 279 Va. 175, 197 (2010)). When determining whether an abuse of discretion occurred, “we do not substitute our judgment for that of the trial court. Rather, we consider only whether the record fairly supports the trial court’s action.” Id. (quoting Carter v. Commonwealth, 293 Va. 537, 543 (2017)). “Only when reasonable jurists could not differ can we say an abuse of discretion has occurred.” Lambert v. Commonwealth, 70 Va. App. 740, 749 (2019) (quoting Thomas v. Commonwealth, 44 Va. App. 741, 753, adopted upon reh’g en banc, 45 Va. App. 811 (2005)). “The abuse-of-discretion standard [also] includes review to determine that the discretion was not guided by erroneous legal conclusions.” Carter, 293 Va. at - 13 - 543-44 (alteration in original) (quoting Porter v. Commonwealth, 276 Va. 203, 260 (2008)). “In determining whether the trial court made an error of law, ‘we review the trial court’s statutory interpretations and legal conclusions de novo.’” Auer v. Commonwealth, 46 Va. App. 637, 643 (2005) (quoting Rollins v. Commonwealth, 37 Va. App. 73, 79 (2001)); see also Cortez-Rivas v. Commonwealth, 300 Va. 442, 444 (2022) (observing that appellate courts review de novo “whether the admission of evidence violates a defendant’s confrontation right” (quoting Logan v. Commonwealth, 299 Va. 741, 745 (2021))). “The measure of the burden of proof with respect to factual questions underlying the admissibility of evidence is proof by a preponderance of the evidence.” Campos v. Commonwealth, 67 Va. App. 690, 702 (2017) (quoting Witt v. Commonwealth, 215 Va. 670, 674 (1975)). A trial court resolves factual questions underlying admissibility. Bloom v. Commonwealth, 262 Va. 814, 821 (2001). These findings are binding on appeal “unless ‘plainly wrong’ or without evidence to support them.” Campos, 67 Va. App. at 702 (quoting McGee v. Commonwealth, 25 Va. App. 193, 198 (1997) (en banc)). I. Admissibility of R.P.’s Out-of-Court Statements under Code § 19.2-268.3 Code § 19.2-268.3 provides a hearsay exception for out-of-court statements of child victims of specified crimes, provided that (1) “the time, content, and totality of circumstances surrounding the statement[s] provide sufficient indicia of reliability” to render the statements “inherently trustworthy,” and (2) the child testifies or is declared unavailable to testify. Code § 19.2-268.3(B). To determine whether the statements are “inherently trustworthy,” a court “may consider” six nonexclusive factors. Code § 19.2-268.3(B)(1)(a)-(f). If the child is declared unavailable to testify, the statute requires “corroborative evidence of the act relating to an alleged offense against children.” Code § 19.2-268.3(B)(2)(b). - 14 - Bista contends that R.P.’s out-of-court statements concerning the sexual abuse were inadmissible under Code § 19.2-268.3 because “[o]nce [R.P.] was declared incompetent to testify, her statements no longer met the requirement of being inherently trustworthy.” He also argues the court erred in finding corroborative evidence of the crimes, as required when a child declarant is unavailable to testify. A. Competency and Admissibility under Code § 19.2-268.3 A child’s incompetence to testify does not categorically bar the admissibility of the child’s out-of-court statements under Code § 19.2-268.3. See Chenevert v. Commonwealth, 72 Va. App. 47, 57 (2020) (holding that the “only” limitations on admissibility under Code § 19.2-268.3 are those the statute expressly contains); see also Ohio v. Clark, 576 U.S. 237, 250 (2015) (recognizing that a child sexual assault victim’s incompetency to testify does not per se render the child’s out-of-court disclosures inadmissible). To the contrary, Code § 19.2-268.3(B)(2)(b) expressly contemplates that some children will be unavailable and addresses that circumstance by requiring “corroborative evidence of the act” giving rise to the charged offense. Nevertheless, Bista insists that the specific facts rendering R.P. incompetent to testify also deprived her out-of-court statements of inherent trustworthiness and the court erred by reaching “two completely opposite” conclusions. We disagree. A child’s competence to testify is a distinct issue from the admissibility of the child’s out-of-court statements under Code § 19.2-268.3. Generally, “a child is competent to testify if he or she possesses the capacity to observe, recollect, communicate events, and intelligently frame answers to the questions asked of him or her with a consciousness of a duty to speak the truth.” Greenway v. Commonwealth, 254 Va. 147, 153 (1997); see also Cross v. Commonwealth, 195 Va. 62, 64 (1953). In making a competency determination, a court “must consider the child’s age, his [or her] intelligence or lack of intelligence, and his [or her] sense of - 15 - moral and legal responsibility.” Greenway, 254 Va. at 153 (quoting Hepler v. Hepler, 195 Va. 611, 619 (1954)); see also Va. R. Evid. 2:601(b) (“A court may declare a person incompetent to testify if the court finds that the person does not have sufficient physical or mental capacity to testify truthfully, accurately, or understandably.”). Admissibility of a child’s out-of-court statement, however, hinges on the statement’s inherent trustworthiness under Code § 19.2-268.3(B), which provides a broad and nonexclusive range of factors for consideration: a. The child’s personal knowledge of the event; b. The age, maturity, and mental state of the child; c. The credibility of the person testifying about the statement; d. Any apparent motive the child may have to falsify or distort the event, including bias or coercion; e. Whether the child was suffering pain or distress when making the statement; and f. Whether extrinsic evidence exists to show the defendant’s opportunity to commit the act[.] Code § 19.2-268.3(B)(1)(a)-(f). These factors go beyond considering whether the child victim understands the duty to tell the truth, which is at the core of a competency determination; they look to other “indicia of reliability” relating to the circumstances of the out-of-court disclosures. See id. We acknowledge there are similarities between the admissibility and competency analyses. For example, a statement’s “inherent trustworth[iness]” may relate to a child’s “age, maturity, and mental state” and an “apparent motive . . . to falsify or distort the event.” Code § 19.2-268.3(B)(1)(b), (d). Similarly, a competency determination considers the child’s age, intelligence, and capacity to understand a duty to tell the truth. See Greenway, 254 Va. at 153. - 16 - Despite the overlap, courts may still weigh these factors differently, depending on the distinct facts and circumstances each individual case presents, and reach different conclusions regarding a child’s competency and a statement’s inherent trustworthiness. Here, R.P.’s autism and developmental delays were certainly relevant to both her competency to testify and the admissibility of her out-of-court statements; however, her mental state did not compel the court to reach the same conclusion on both issues, given the numerous other considerations factoring into the separate analyses. In determining that R.P. was incompetent to testify, the court found that R.P.’s mental state was dispositive, as it impaired her “capacity to comprehend the legal significance of an oath,” “distinguish truth from a falsehood,” and “understand the questions propounded and make intelligent answers.” In ruling that R.P.’s out-of-court statements were admissible, however, the court had discretion to consider her mental state as one factor among many, take into account the totality of the circumstances surrounding the statement, and still make a finding of inherent trustworthiness. See Code § 19.2-268.3(B)(1) (stating that the court “may consider” the “age, maturity, and mental state of the child” along with other factors (emphasis added)). Bista further argues that R.P.’s admission to giving “false facts” during the preliminary hearing, which factored into the court’s competency determination, necessarily made her out-of-court statements inherently untrustworthy. Again, we disagree. To the extent that R.P. stated at the competency hearing that she offered “false facts” during the preliminary hearing, none related to the sexual assault itself. R.P. stated that the “false facts” concerned (1) whether Bista’s wife dropped Bista off at R.P.’s home, and (2) whether R.P. watched internet pornography. Therefore, although R.P.’s giving of “false facts” impacted the competency determination, the court had discretion to find that her out-of-court statements were inherently trustworthy when considering the totality of circumstances under Code § 19.2-268.3(B)(1). - 17 - B. Weighing of Statutory Factors Bista further contends that the court erroneously weighed the factors enumerated in Code § 19.2-268.3 to conclude that R.P.’s statements were inherently trustworthy. He argues that inconsistencies in R.P.’s multiple accounts of the assault, considered with her impaired “maturity and mental state” made her statements “inherently untrustworthy.” Bista also argues that the court should have concluded from R.P.’s history of “attention[-]seeking behavior” that she had a “motive to falsify her claims.” In essence, Bista asks us to reassess the court’s factual conclusions. We are “bound by the trial court’s ‘findings of historical fact unless “plainly wrong” or without evidence to support them.’” Park v. Commonwealth, 74 Va. App. 635, 645 (2022) (quoting McGee, 25 Va. App. at 198); see McMillan v. Commonwealth, 277 Va. 11, 18 (2009) (stating that, on appeal, “great deference is given to the factfinder who, having seen and heard the witnesses, assesses their credibility and weighs their testimony” (quoting Young v. Commonwealth, 275 Va. 587, 590 (2008))). Thus, we must defer to the factfinder’s responsibility “to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Abdullah v. Commonwealth, 53 Va. App. 750, 755 (2009) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). The record supports the court’s conclusion that R.P.’s statements to her parents, teacher, and Bonilla were inherently trustworthy. The evidence established R.P.’s “personal knowledge of the event” and reflected detailed and largely consistent accounts of the assault to her parents, teacher, and Bonilla. Code § 19.2-268.3(B)(1)(a). Rita and Hem consistently testified that, immediately after the assault, R.P. reported that Bista had touched and “licked” her “private parts.” Consistent with that disclosure, R.P. told her teacher, Rothe, that she had been raped by a family friend the previous August. The video of R.P.’s forensic interview demonstrated that R.P. - 18 - provided a detailed account of the assault consistent with her previous reports. Furthermore, despite some discrepancies, R.P.’s testimony “did not waiver” with respect to the essential acts constituting the offenses. See Nobrega v. Commonwealth, 271 Va. 508, 518 (2006) (holding that a “child’s mental health history” and “inconsistencies” in the child’s account “bear[] on the weight to be given her testimony” but do not render the testimony inherently incredible). Moreover, the court expressly considered R.P.’s “age, maturity, and mental state” and determined that she had “a very detailed recollection of the event,” notwithstanding “some inconsistencies” in her account and being “mildly autistic.” See Code § 19.2-268.3(B)(1)(b). The court also had the opportunity to watch and listen to Rita, Hem, and Rothe testify concerning R.P.’s statements and concluded that they were credible. Code § 19.2-268.3(B)(1)(c). Although R.P. engaged in “attention-seeking” behavior at school, no evidence suggested she did so at home or in other settings. Nor did any evidence indicate that she harbored animus toward Bista before the incident. Furthermore, Hem testified that he did not “coach” R.P.’s testimony, Bista was a close family friend, and Hem had refrained from contacting police due to cultural norms. From that evidence, the court reasonably concluded that neither R.P. nor her family had a motive to “falsify or distort” the offenses. Code § 19.2-268.3(B)(1)(d). The court also found no evidence that R.P. was “suffering pain or distress” during the disclosures. Code § 19.2-268.3(B)(1)(e). Finally, the record contained “extrinsic evidence” establishing Bista’s “opportunity to commit” the assault. Code § 19.2-268.3(B)(1)(f). Rita found Bista kneeling on the floor behind R.P., who was on her hands and knees and partially undressed. Additionally, Bista’s DNA was inside R.P.’s underpants, and he admitted to both parents that he had “licked” R.P.’s “private part.” Viewing the evidence under our deferential standard of review, we cannot conclude that the court’s findings were plainly wrong or without evidentiary support. Park, 74 Va. App. at - 19 - 645. Accordingly, we hold that the court did not abuse its discretion when weighing the statutory factors and finding R.P.’s statements “inherently trustworthy” under Code § 19.2-268.3. C. Corroborative Evidence Finally, Bista contends that “[a]bsolutely no corroborative evidence existed” of the alleged acts of rape, sodomy, and aggravated sexual battery to satisfy Code § 19.2-268.3(B)(2)(b). He argues that the evidence established at most his mere “opportunity” to commit the crimes, which he contends was insufficient. Code § 19.2-268.3 does not define “corroborative evidence.” In general, “when a particular word in a statute is not defined therein, a court must give it its ordinary meaning.” Moyer v. Commonwealth, 33 Va. App. 8, 35 (2000) (en banc). “Corroboration” denotes “confirmation or support by additional evidence or authority.” Corroboration, Black’s Law Dictionary (11th ed. 2019). We have stated that, in general, “[c]orroborative evidence is such evidence as tends in some degree, of its own strength and independently, to support some essential allegation or issue.” Haas v. Commonwealth, 74 Va. App. 586, 629 (2022) (quoting Commonwealth v. Proffitt, 292 Va. 626, 638 (2016)). Such evidence “tends to confirm and strengthen” a witness’s testimony by “show[ing] the truth, or the probability of its truth.” Penn v. Manns, 221 Va. 88, 93 (1980) (quoting Brooks v. Worthington, 206 Va. 352, 357 (1965)). Corroborative evidence need not “be sufficient to support a verdict” or “remove[] all doubt,” but only provide “more strength than was had before.” Id. (quoting Brooks, 206 Va. at 357). No formula exists for determining adequate corroboration; “ea[ch] case must be decided upon its own facts and circumstances.” Seaboard Citizens Nat’l Bank v. Revere, 209 Va. 684, 693 (1969) (quoting Brooks, 206 Va. at 357). Corroborative evidence includes “independent evidence connecting the declarant with the confessed crime,” such as “testimony from other witnesses” and “physical evidence.” Rankins v. Commonwealth, 31 Va. App. 352, 362 (2000), overruled on - 20 - other grounds in Crawford v. Washington, 541 U.S. 36, 52 (2004). Additionally, admissions from a defendant corroborating challenged hearsay statements are often persuasive. See Henderson v. Commonwealth, 285 Va. 318, 330-31 (2013). The record contains corroborative evidence of Bista’s crimes. Forensic testing established that Bista’s DNA was found in the interior crotch of R.P.’s underpants. Rita also testified that she observed Bista kneeling behind R.P., whose shorts were drawn below her knees. Finally, Bista confessed that he “licked” R.P.’s “private part.” Collectively, that corroborative evidence satisfies Code § 19.2-268.3(B)(2)(b).11 II. R.P.’s Forensic Interview and the Confrontation Clause Bista next argues that even if the statements were otherwise admissible under Code § 19.2-268.3, the court’s admission of the forensic interview video violated his Sixth Amendment right to confront R.P. He contends that his cross-examination of R.P. at the preliminary hearing was insufficient because the forensic interview video “presented new and corroborative evidence to the jury and was not subject to cross-examination at any point— neither the preliminary hearing nor the jury trial.” The Sixth Amendment’s Confrontation Clause provides 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. In Crawford v. Washington, the United States Supreme Court held that when a witness is declared unavailable and does not testify at trial, the Confrontation Clause prohibits admitting the witness’s prior statements if the statements constitute
11 In his brief, Bista asks this Court to conclude that there was insufficient corroborative evidence based on cases concerning corpus delicti necessary to corroborate a defendant’s extrajudicial confession. The authorities upon which Bista relies are inapposite because they address a distinct quantum of proof: sufficiency to sustain a conviction, rather than admissibility of evidence. - 21 - “testimonial” hearsay and there was no prior opportunity for cross-examination. 541 U.S. at 68; see also Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309 (2009) (stating that the Sixth Amendment bars a witness’s testimonial statement against a defendant “unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination”). A statement is testimonial if, viewed objectively and in full context, it was given with the “primary purpose of creating an out-of-court substitute for trial testimony.” Clark, 576 U.S. at 245 (quoting Michigan v. Bryant, 562 U.S. 344, 358 (2011)). This “primary purpose” test considers, among other factors, the intent of the declarant under the circumstances. See id. at 240 (noting that “neither the child [declarant] nor his teachers had the primary purpose of assisting in [the] prosecution”). “Statements by very young children will rarely, if ever, implicate the Confrontation Clause.” Id. at 247-48. We need not reach the issue of whether R.P.’s forensic interview statements were testimonial, however, because we find that Bista had a constitutionally adequate opportunity to cross-examine R.P. about those statements at the preliminary hearing.12 “[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.” Campos, 67 Va. App. at 703 (alteration in original) (emphasis added) (quoting Abney v. Commonwealth, 51 Va. App. 337, 350 (2008)); accord Massey v. Commonwealth, 67 Va. App. 108, 134 (2016); see also Clark, 576 U.S. at 243 (“The Sixth Amendment . . . prohibits the introduction of testimonial statements by a nontestifying witness,
12 “As an appellate court, we seek the ‘best and narrowest ground available’ for our decision.” Harvey v. Commonwealth, 65 Va. App. 280, 285 n.2 (2015) (quoting Armstead v. Commonwealth, 56 Va. App. 569, 576 (2010)). - 22 - unless the witness is ‘unavailable to testify, and the defendant had had a prior opportunity for cross-examination.’” (quoting Crawford, 541 U.S. at 54)). Assuming without deciding that R.P.’s statements during the forensic interview were testimonial, they were admissible because Bista’s Sixth Amendment confrontation right was satisfied at the preliminary hearing when he cross-examined R.P. regarding substantially similar testimony.13 During the forensic interview, R.P. told Bonilla that Bista had visited her home for a dinner party, found her alone in the living room, and forcefully kissed her by grabbing her neck. R.P. said that when she tried to run away, Bista pulled her shirt several times, forced her into a “dog” position, and removed her shorts. Bista “lick[ed]” her “private part,” and his penis “tr[ied] to go into her butt.” R.P. also told Bonilla that Bista used his phone to record her but that someone had since deleted the videos and the phone was lost. At the preliminary hearing, R.P. testified that Bista initially “just touched [her] private parts without taking [her] shorts off” and then removed his pants and inserted his penis into her vagina and “butt.” R.P. testified that Bista repeated the conduct for “forty minutes” and she “tried to leave the room several times.” During cross-examination, Bista elicited testimony that contradicted some of R.P.’s forensic interview statements. R.P. testified that Bista did not “pull [her] shirt” during the assault, but he prevented her from leaving by “blocking” the entrance. R.P. also said that Bista
13 During proceedings below, the Commonwealth initially took the position that R.P.’s forensic interview statements were testimonial. In response to Bista’s motion to set aside the verdict, however, the Commonwealth argued for the first time that the statements were nontestimonial. In ruling on Bista’s motion, the court did not expressly address the testimonial/nontestimonial dispute but simply stated, “[t]he motion to set aside the verdict respectfully is denied.” Neither the Commonwealth’s change-of-position, nor the court’s nonspecific ruling on the motion to set aside, prevents us from resolving the Confrontation Clause issue on a basis that is supported by the record—i.e., by affirming the court’s pre-trial ruling that admission of the forensic interview video did not violate the Confrontation Clause because Bista had an adequate opportunity to cross-examine R.P. at the preliminary hearing. See Perry v. Commonwealth, 280 Va. 572, 580 (2010) (providing that an appellate court can affirm a judgment for any reason supported by the record). - 23 - “left his phone in [a] bag” and did not use it to photograph or record her, as she had said during the forensic interview. Bista referred to these inconsistencies in his closing argument in an attempt to buttress his challenge to R.P.’s credibility. Additionally, the record reflects that Bista’s cross-examination of R.P. went well beyond the scope of the direct examination and included questions concerning events before and after the assault, a visit R.P. made to Bista’s house after the assault, whether R.P. watched pornography, and people to whom R.P. talked about the case. Thus, at the preliminary hearing, R.P. testified in open court, under oath, and Bista both had the opportunity to, and did, cross-examine her without objection on a multitude of issues, including inconsistent statements she had made during the forensic interview. Although he did not introduce or expressly refer to the forensic interview, Bista had received a copy of the video three weeks before the preliminary hearing and could have cross-examined R.P. even more directly regarding any inconsistent statements. See Va. R. Evid. 2:613 (allowing impeachment by showing that the witness had previously made statements inconsistent with her testimony); see also McCarter v. Commonwealth, 38 Va. App. 502, 506-07 (2002). The fact that Bista chose not to pursue or expand upon his questioning does not mean his constitutional rights were violated. See Campos, 67 Va. App. at 703. Bista contends that R.P.’s cross-examination at the preliminary hearing was defective because at that time: (1) Bista “did not face a rape charge”; (2) “neither complete discovery nor all of [R.P.]’s school records had been disclosed”; (3) Bista was unaware of “additional statements to [R.P.’s] parents and her teacher” admitted at trial; (4) R.P. “purposefully” lied regarding certain facts; and (5) R.P.’s autism—“the condition that rendered her incompetent”— made her cross-examination “meaningless.” - 24 - This Court rejected similar arguments in Massey. In Massey, the victim in a prosecution for rape and abduction died after testifying at the preliminary hearing but before trial. 67 Va. App. at 118-19. During the preliminary hearing, the victim testified that she was unable to recall details of the incident. Id. at 116-18. After the preliminary hearing, the Commonwealth indicted Massey on an additional charge of abduction with intent to defile. Id. at 118. The Commonwealth also disclosed phone records and photographs that contradicted the victim’s preliminary hearing testimony. Id. Massey moved in limine to exclude the victim’s preliminary hearing testimony from trial, arguing that admitting the preliminary hearing transcript into evidence would violate the Confrontation Clause. Id. He contended that he had not had a full opportunity to cross-examine the victim at the preliminary hearing because, after the hearing, the Commonwealth indicted him on the additional charge and disclosed phone records he could have used to impeach the victim. Id. Massey also argued that the victim’s forgetfulness had rendered her functionally “unavailable.” Id. The court denied the motion. Id. At trial, Massey introduced numerous text messages that contradicted the victim’s “memory lapses” and otherwise impeached her credibility. Id. at 134. On appeal, Massey claimed that the admission of the victim’s preliminary hearing testimony violated his right to confrontation. Id. at 123-24. This Court held that the additional charge was irrelevant because it arose from the same “factual basis” as the others and Massey had cross-examined the victim regarding those facts. Id. at 136. The untimely disclosure of the phone records was also inconsequential because “[t]he fact that additional information that might have been used in the examination of a witness is discovered after the witness testifies does not render the examination infirm.” Id. at 129. Further, by introducing the victim’s contradictory text messages, Massey had impeached the victim’s credibility at trial “through other means.” Id. at 128. Accordingly, we found no violation of the Confrontation Clause. Id. at 137. - 25 - Although Massey concerned the admissibility of preliminary hearing testimony, we nevertheless find the case instructive on the issue presented here—the admissibility of out-of-court statements that were available during, and substantially similar to, the preliminary hearing testimony. As in Massey, it is immaterial that the Commonwealth indicted Bista for rape after the preliminary hearing because the new charge stemmed from the same “factual basis” and Bista rigorously cross-examined R.P. regarding those facts. Id. at 136. Although Bista could have used the previously-undisclosed school records or statements to conduct a more thorough cross-examination of R.P. had she testified at trial, that circumstance “[did] not render the examination infirm” because he introduced the impeaching information into evidence at trial. Id. at 129. Notwithstanding R.P.’s later admission that she had lied about irrelevant facts at the preliminary hearing, Bista extensively cross-examined her specifically about her false testimony during the subsequent competency hearing and introduced that transcript into evidence. Finally, to the extent that Bista contends that R.P.’s autism rendered her de facto incompetent—and therefore “unavailable”—during the preliminary hearing, this Court rejected Massey’s analogous argument. Id. at 133-34. Moreover, Bista never challenged R.P.’s competency to testify at the preliminary hearing. Indeed, he invoked R.P.’s autism to attack her credibility at trial by arguing that her mental condition made her incapable of telling the truth. “That this credibility attack did not result in an acquittal does not mean that [Bista] was denied his right of cross-examination.” Id. at 134. Bista further argues that R.P.’s cross-examination at the preliminary hearing was defective because the “forensic interview was not introduced at the preliminary hearing.” However, as stated above, Bista had a copy of the forensic interview, could have used it to impeach R.P.’s preliminary hearing testimony, and in fact did question her about inconsistencies in her account of the assault. His questions, clearly based on the contents of the forensic - 26 - interview that had been provided to him some three weeks earlier, were presented without objection from the Commonwealth’s attorney or limitation by the district court. Additionally, on the facts of this case, we find that the opportunity for constitutionally adequate cross-examination did not require the Commonwealth to affirmatively introduce or elicit testimony concerning the forensic interview video at the preliminary hearing.14 Bista’s reliance on Melendez-Diaz and Cypress v. Commonwealth, 280 Va. 305 (2010), for this argument is misplaced. In Melendez-Diaz, the Supreme Court held that the Sixth Amendment protected a defendant’s right to confront forensic witnesses who swore to certificates of analysis establishing that substances connected to the defendant contained cocaine. 557 U.S. at 307-11, 329. The defendant’s mere “ability to subpoena the analysts” did not preserve his confrontation right, as the subpoena power is “no substitute for the right of confrontation.” Id. at 324. The Court explained that “the Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court.” Id. The Confrontation Clause cannot be “replaced by a system in which the prosecution presents its
14 The dissent claims that Bista could not ask specific questions about the statements R.P. made during the forensic interview. But he did. In fact, his cross-examination alluded to some statements R.P. made during the forensic interview which were not mentioned in her direct examination or differed from her specific statements on direct examination. Further, the statements contained in the forensic interview addressed the precise topic before the court in the preliminary hearing—the circumstances surrounding the sexual abuse. The record is devoid of evidence to support the dissent’s speculation that had Bista conducted a more thorough cross-examination, he would have “exceed[ed] the limited purpose of a preliminary hearing.” Bista’s questions on cross-examination were presumably proper: they were not objected to by the Commonwealth, and Bista’s cross-examination was not limited by the judge. The dissent also raises the specter that the forensic interviewer “may have (unintentionally) led [R.P.] into changing her testimony.” Again, this contention is without support in the record. In fact, the only testimony at trial concerning the circumstances of the forensic interview was elicited from the executive director of SafeSpot, who described an interview “conducted in [a] neutral setting by a trained professional forensic interviewer,” explained the protocols used by the interviewer, and who testified that she had observed the video of the forensic interview between R.P. and Bonilla. - 27 - evidence via ex parte affidavits and waits for the defendant to subpoena the affiants if he chooses.” Id. at 324-25. Applying Melendez-Diaz, the Supreme Court of Virginia held in Cypress that a former statute requiring defendants to call forensic analysts as witnesses “placed an impermissible burden” on them to call adverse witnesses and “did not adequately protect their Confrontation Clause rights.” 280 Va. at 318. Unlike Melendez-Diaz and Cypress, Bista had more than a mere “ability to subpoena” the testimonial evidence against him; he actually had the forensic interview in his possession and the ability to use it for impeachment purposes at the preliminary hearing. Cf. Melendez-Diaz, 557 U.S. at 324. This is not a situation where Bista was required to call an adverse witness and thereby “relieve[] the prosecution of its burden to present its witnesses against [him].” Cypress, 280 Va. at 316. To the contrary, the Commonwealth had already called R.P.; Bista simply had to make a strategic choice about whether to confront her with the forensic interview statements in his possession. Defense strategy, and not any procedural or statutory burden, affected whether and to what extent Bista would employ the forensic interview at the preliminary hearing. Bista did, in fact, ask her about some of those forensic interview statements, without referring to the interview directly. Subsequently at trial, after the Commonwealth referred to the forensic interview during closing argument to emphasize consistencies among R.P.’s out-of-court statements and prior testimony, Bista pointed out inconsistent statements in the forensic interview to impeach her credibility. Therefore, given Bista’s opportunity to cross-examine R.P. at the preliminary hearing and his ultimate leveraging of inconsistencies before the jury, we find no violation of Bista’s Confrontation Clause right. In sum, Bista has not established that he did not have a prior opportunity to cross-examine R.P. before trial. Although R.P.’s cross-examination at the preliminary hearing - 28 - may have been less thorough than Bista might desire, he identifies nothing in the record that rendered the examination constitutionally infirm. Campos, 67 Va. App. at 703; cf. Massey, 67 Va. App. at 130-31 (finding no Confrontation Clause violation where the defendant had a prior opportunity to cross-examine the victim and introduced later-discovered impeachment materials at trial); see also California v. Green, 399 U.S. 149, 170 (1970) (holding that the admission of a victim’s preliminary hearing testimony did not violate the Confrontation Clause despite the victim’s extensive “lapse of memory”). Accordingly, we affirm the court’s admission of R.P.’s forensic interview statements.15 CONCLUSION The court did not err by admitting R.P.’s out-of-court statements under Code § 19.2-268.3 after she had been declared incompetent to testify at trial, and the admission of R.P.’s forensic interview video did not violate Bista’s Confrontation Clause right. Therefore, we affirm the court’s judgment. Affirmed.
15 We also note that the dissent purports to engage in a “harmless error” analysis of Bista’s sodomy conviction, but fails to consider the evidence “in the light most favorable to the Commonwealth,” as it is bound to do. Sullivan v. Commonwealth, 280 Va. 672, 674 (2010). In finding the evidence insufficient to prove anal penetration, the dissent ignores the fact that during R.P.’s preliminary hearing, she testified four separate times in response to questions on both direct and cross-examination that Bista penetrated her “butt” with his penis. In one answer, she specified that he was “in my butt for longer [than her vagina].” A child’s testimony alone is sufficient for the jury to find the elements of the crime proven, and Bista never challenged R.P.’s competency to testify at the preliminary hearing. See Poole v. Commonwealth, 73 Va. App. 357, 368 (2021) (holding that a conviction for sexual assault “may be sustained solely upon the uncorroborated testimony of the victim” (quoting Wilson v. Commonwealth, 46 Va. App. 73, 87 (2005))). Further, much of the evidence that Bista concedes is sufficient to establish aggravated sexual battery (R.P.’s mother finding R.P. on her knees with her shorts down and Bista kneeling behind her, Bista’s admission that he was “just loving her,” and Bista’s DNA on the inside of R.P.’s underwear) is likewise evidence that supports the anal sodomy conviction. - 29 - Humphreys, J., with whom AtLee, J., joins, concurring. I join entirely in Part I of the majority’s well-reasoned analysis and judgment with respect to the application of Code § 19.2 268.3 to the facts of this case and the admission at trial of R.P.’s statements with respect to the Rules of Evidence.16 Furthermore, while I find no fault with the analysis of the majority in Part II of its opinion regarding the satisfaction of the Confrontation Clause of the Sixth Amendment, in my view, it is an analysis that we need not engage in given the facts of this case. As the majority acknowledges, the doctrine of judicial restraint dictates that we decide cases “on the best and narrowest grounds available.” Commonwealth v. Swann, 290 Va. 194, 196 (2015) (quoting McGhee v. Commonwealth, 280 Va. 620, 626 n.4 (2010)). However, a related principle is that of avoiding unnecessarily deciding constitutional issues. Id. at 197 (citing Christopher v. Harbury, 536 U.S. 403, 417 (2002) (noting the “obligation of the Judicial
16 I also join with the majority in its criticism of our dissenting colleagues for ignoring the required standard of appellate review to view the facts in the light most favorable to the prevailing party below and their use of speculative hindsight to advance arguments and assert facts not in the record. Moreover, as to the dissent’s implication that cross-examination at a preliminary hearing can never satisfy the Confrontation Clause because a preliminary hearing is inherently more limited in its purpose than a trial, I would supplement the majority’s response by making a couple of additional points. Here in the Commonwealth, a preliminary hearing is held for the broad purpose of determining the existence of probable cause that a defendant has committed one or more crimes. It seems to me that where the Rules of Evidence apply in a preliminary hearing as they do here in the Commonwealth, the difference between establishing probable cause and guilt beyond a reasonable doubt regarding the scope of relevant evidence is not so significant as to impair the ability to cross-examine a defendant’s accuser(s). I respectfully suggest to my colleagues in the dissent that they would be hard pressed to point to a rule of evidence that would allow an objection to be sustained to a cross-examination question on the basis that it could only be properly asked at trial and not at a preliminary hearing. While I can conceive of situations where a preliminary hearing has not provided a meaningful opportunity for cross-examination regarding charges that are the subject of the preliminary hearing, such as where prior statements of the witness were not provided in discovery to defense counsel prior to the preliminary hearing, that was not the case here. - 30 - Branch to avoid deciding constitutional issues needlessly”)). Thus, “[g]iven our dual obligations to decide cases on the ‘narrowest and best grounds’ coupled with that to avoid deciding constitutional issues if possible, . . . the first step in any Confrontation Clause analysis involves determining whether the statements in question are subject to constitutional protection under the Sixth Amendment.” Logan v. Commonwealth, 72 Va. App. 309, 317 (2020) (en banc) (second alteration in original) (quoting Cody v. Commonwealth, 68 Va. App. 638, 657-58 (2018)), aff’d, 299 Va. 741 (2021). In this case, I conclude that the Confrontation Clause of the Sixth Amendment was inapplicable to R.P.’s statements made in the forensic interview and therefore see no need to engage in a further constitutional analysis as the majority does. In 2015, the Supreme Court of the United States decided Ohio v. Clark, 576 U.S. 237 (2015), a case which has been largely overlooked here in the Commonwealth. Although summarily dismissed by the dissent, Clark represents a significant change in the application of the Sixth Amendment’s Confrontation Clause to the out of court statements of children. In Clark, the Supreme Court held that “[s]tatements by very young children will rarely, if ever, implicate the Confrontation Clause.” Id. at 247-48.17 In reaching that judgment, the Court noted that “young children ‘have little understanding of prosecution’” and concluded that “it is extremely unlikely that a 3-year-old child . . . would intend his statements to be a substitute for trial testimony. On the contrary, a young child in these circumstances would simply want the abuse to end, would want to protect other victims, or would have no discernible purpose at all.” Id. at 248. The Court also noted that statements made to someone who is not principally charged
17 The dissent’s analysis of Clark would invert this broad holding by suggesting that the phrase “rarely, if ever” actually means that unless statements by very young children are made only to a teacher in the course of an ongoing emergency, they are testimonial. - 31 - with uncovering and prosecuting criminal behavior are significantly less likely to be testimonial than statements given to law enforcement officers. Id. at 249. In this case, R.P. was a special needs child with the maturity level of approximately a four year old. Her statements were made to a social worker, not a police officer. In short, as in Clark, the record is clear that R.P.’s statements to the social worker were not testimonial as a matter of law and the Confrontation Clause has no application to them. Therefore, we need not take the extra step, as the majority does, to address whether the Sixth Amendment was satisfied. For these reasons I join in the judgment affirming the circuit court’s admission of R.P.’s statements. - 32 - Lorish, J., with whom Ortiz, Causey, Friedman, Chaney, Raphael, and Callins, JJ., join dissenting. Bista had no opportunity to confront his accuser at trial. Instead, he, and the jury, watched a video of the victim speaking to a forensic examiner about the assault for 45 minutes, without cross-examination. The majority finds no constitutional error because the victim testified about the same assault at the preliminary hearing, where Bista was present and had the opportunity to cross-examine her on those later statements that the majority deems “substantially similar.” But at a preliminary hearing in Virginia, Bista could have used the victim’s statements in the forensic interview only to impeach the victim’s credibility regarding the testimony she gave at the hearing. In any event, not all of the topics from the forensic interview were discussed at the preliminary hearing and so they were not “substantially similar.” For these reasons, I respectfully dissent. First, I explain the interplay between the state evidentiary rules (relevant here, Code § 19.2-268.3) and the Confrontation Clause.18 Then, I set out why this Court should accept the trial court’s determination that the forensic interview was testimonial. Because the victim was not present at trial and the interview was testimonial, it could be constitutionally admitted at trial only if Bista had a prior opportunity to cross-examine the victim about her statements in the interview. The Confrontation Clause requires such cross-examination to take place at the time the statement was made, or at a later hearing where the prior testimonial statement was introduced as substantive evidence. Because neither happened here, I conclude that Bista did not have the opportunity to cross-examine the victim on her statements in the interview. 18 U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”). Bista argues only that his confrontation rights under the federal Constitution were violated, so I do not examine the Virginia Constitution’s Confrontation Clause. See Va. Const. art. I, § 8. - 33 - Finally, I explain why, even adopting the majority’s framework, the victim’s testimony at the preliminary hearing was not “substantially similar” to the testimonial statements in the forensic interview. Said another way, even assuming the Confrontation Clause is “topic- specific” and not “statement-specific,” there were significant “topics” addressed in the forensic interview that did not come up during the preliminary hearing. I. Most prior child statements are non-testimonial, and therefore may be admissible under Virginia’s evidentiary rules without any constitutional bar. There are two overlapping issues here: admissibility of an out-of-court statement under Virginia’s evidentiary rules and admissibility of an out-of-court statement under the federal Constitution’s Confrontation Clause. In general, hearsay is inadmissible at trial. Va. R. Evid. 2:802. Code § 19.2-268.3 creates an exception to the hearsay rules for an out-of-court statement of a child under the age of 13, in certain cases and subject to certain requirements. I join in the majority opinion’s analysis of Code § 19.2-268.3 and revisit the statute here only to highlight its interaction with the Confrontation Clause. When a child testifies at trial and the criteria in Code § 19.2-268.3 are met, the prior out- of-court statement “shall not be excluded as hearsay” and is admissible at that trial. Code § 19.2-268.3(B)(2)(a). Both the child’s testimony at trial and the prior statement are evidence that the fact-finder may consider. And in this scenario, there is no Confrontation Clause problem because the child is available to testify at trial and can be cross-examined about any prior statement the prosecution introduces as evidence. Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004) (when the declarant testifies at trial “the Confrontation Clause places no constraints at all on the use of his prior testimonial statements”). When the child is unavailable to testify at trial, Code § 19.2-268.3 requires more before the prior statement can be admitted. If the trial court concludes there is “corroborative evidence - 34 - of the act,” then the statement satisfies the statute. Code § 19.2-268.3(B)(2)(b). But whether the statement may be admitted without running afoul of the Confrontation Clause turns on whether the statement is testimonial.19 It is only the narrow category of testimonial statements where the protections of the Confrontation Clause require something beyond the admissibility rules of Code § 19.2-268.3 before a statement may be admitted. If the statement is testimonial, and the declarant does not testify at trial, the defendant must have had a prior opportunity to cross-examine the testimony or the Confrontation Clause bars its admission at trial. In Crawford, the Supreme Court consciously reoriented Confrontation Clause caselaw away from court-assessed “reliability” of out-of-court statements and towards “reliability” as guaranteed by cross-examination. If the witness is not present at trial, “[a]dmitting statements [merely because they are] deemed reliable by a judge is fundamentally at odds with the right of confrontation.” Walker v. Commonwealth, ___ Va. ___, ___ (June 1, 2023) (second alteration in original) (quoting Crawford, 541 U.S. at 61). “To be sure, the Clause’s ultimate goal is to ensure reliability of evidence . . . . [But] [i]t commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” Crawford, 541 U.S. at 61. The Confrontation Clause “thus reflects a judgment, not only about the desirability of reliable evidence (a point on which there could be little dissent), but about how reliability can best be determined.” Id.20
19 The Confrontation Clause does not apply to non-testimonial statements. See Davis v. Washington, 547 U.S. 813, 823-28 (2006).
20 This distinction explains why I can join in the majority’s analysis affirming the trial court’s determination that the victim’s statements were inherently trustworthy under the statutory criteria for a hearsay exception, but conclude that the Confrontation Clause requires more. As the majority correctly holds, “[c]orroborative evidence need not ‘be sufficient to support a verdict’ or ‘remove[] all doubt,’ but only provide ‘more strength than was had before.’” Ante p. 20 (quoting Penn v. Manns, 221 Va. 88, 93 (1980)). But constitutional harmless error review requires more, as I detail below. - 35 - Only a few categories of statements qualify as “testimonial.” “A statement qualifies as testimonial if the ‘primary purpose’ of the statement was to ‘create[e] an out-of-court substitute for trial testimony.’” Logan v. Commonwealth, 72 Va. App. 309, 318 (2020) (en banc) (quoting Michigan v. Bryant, 562 U.S. 344, 369 (2011)), aff’d, 299 Va. 741 (2021). “Essentially, testimonial statements are those that ‘are functionally identical to live, in-court testimony, doing “precisely what a witness does on direct examination.”’” Id. (quoting Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310-11 (2009)). Prior testimony in a courtroom under oath for any proceeding will always qualify, as will sworn depositions. Crawford, 541 U.S. at 51-52. In both circumstances, the defendant plainly had an opportunity to cross-examine the witness and the only question for a reviewing court is whether the opportunity was “adequate.” All our prior cases considering the admissibility of a prior testimonial statement considered these types of testimonial statements—where the defendant had the opportunity to cross-examine the witness about a statement at the time it was made. See, e.g., Longshore v. Commonwealth, 260 Va. 3, 4 (2000) (requiring “that the party against whom the prior testimony is offered was present, and represented by counsel, at the preliminary hearing and was afforded the opportunity of cross-examination when the witness testified at the preliminary hearing” (emphases added)); Massey v. Commonwealth, 67 Va. App. 108, 136 (2016) (affirming admission of preliminary hearing transcript at trial when the witness was unavailable because “at the preliminary hearing . . .appellant could and did conduct a thorough cross-examination of [the victim]” (emphasis added)). The same is true in other jurisdictions. Courts have regularly confronted the admissibility of a deposition, or a preliminary hearing transcript, or prior trial testimony at a later proceeding where the witness was unavailable—and examined whether the - 36 - defendant had an adequate (if imperfect) opportunity to contemporaneously cross-examine the statement.21 But what about a testimonial statement that was not made in the defendant’s presence and subject to contemporaneous cross-examination? Before taking up this question, I address why this Court cannot (on this record) override the trial court’s determination that the forensic interview was testimonial. II. The trial court’s determination that the forensic interview was testimonial was not an abuse of discretion. The trial court made a specific finding below that “[t]he statements made to the social worker [during the forensic interview] are testimonial and they are hearsay.” And the Commonwealth conceded the same before trial: “The Commonwealth does concede that the statements made during the forensic interview [are] testimonial.” Later, in response to a post- trial motion, the Commonwealth suggested for the first time that the court could alternatively find the statements were not testimonial—a suggestion the court did not take up. The
21 For example, the Supreme Court affirmed the introduction of preliminary hearing testimony at a trial where the declarant was unavailable because the declarant had faced cross-examination at the preliminary hearing. California v. Green, 399 U.S. 149 (1970). See also, e.g., Howard v. State, 853 N.E.2d 461, 470 (Ind. 2006) (pretrial deposition admissible when child witness declared unavailable at trial because defendant “had a full, fair, and adequate opportunity to confront and cross-examine [the witness] . . . when her pretrial deposition was taken”); State v. Oscar H., 252 A.3d 842, 862 (Conn. App. Ct. 2021) (pretrial deposition of unavailable witness admissible because the deposition “was taken under agreed upon parameters, in court, under oath, subject to penalty of perjury, and with the direct supervision of a judge” and the trial court “did nothing to restrict the defendant’s cross-examination of [the witness]”); State v. Day, 925 A.2d 962, 981 (R.I. 2007) (when accomplice was unavailable as a witness at state trial, defendant’s confrontation rights were not violated when accomplice’s testimony from federal trial was admitted in state trial because the federal and state charges arose from the “same sequence of events” and the defendant “not only had ample opportunity to cross-examine [the accomplice during the federal trial], but also . . . had in fact seized that opportunity”); Commonwealth v. Hurley, 913 N.E.2d 850, 859 (Mass. 2009) (“Although the cross-examination of [the unavailable witness] at trial (were she alive) may have been different from and better than her cross-examination at the pretrial detention hearing, we conclude the defendant had an adequate opportunity to cross-examine [her] at the prior hearing.”). - 37 - Commonwealth continues this reversal of course on appeal, asking us to find the trial court was correct to admit the forensic interview but for this different reason. We can affirm on a different theory than the one the trial court used below only when “the record demonstrates that all evidence necessary to the alternative ground for affirmance was before the circuit court and, if that evidence was conflicting, how [the court] resolved the dispute, or weighed or credited contradicting testimony.” Banks v. Commonwealth, 280 Va. 612, 618 (2010). Here, the trial court already resolved this dispute and held that the statement was testimonial. This Court has recognized that under Supreme Court precedent, a trial court determines the “primary purpose of a statement” by considering “whether, in light of all the circumstances, viewed objectively, the ‘primary purpose’ of the [statement] was to ‘creat[e] an out-of-court substitute for trial testimony.’” Logan, 72 Va. App. at 318-19 (alterations in original) (emphasis added) (quoting Ohio v. Clark, 576 U.S. 237, 245 (2015)). My concurring colleagues today reduce the same multi-factor analysis in Clark to a single consideration—“[s]tatements by very young children will rarely, if ever, implicate the Confrontation Clause,” ante p. 22 (quoting Clark, 576 U.S. at 247-48)—from which they then create a new per se rule. And they wrap this gratuitous extension of constitutional law in the sheep’s clothing of “constitutional avoidance.” Far from looking exclusively to the child’s age, the Supreme Court considered many factors in Clark to assess whether the primary purpose of a statement was evidentiary, and thus testimonial. First, the statement was made to “preschool teachers, not the police.” Clark, 576 U.S. at 246. The Supreme Court, while “declin[ing] to adopt a categorical rule,” noted that “such statements are much less likely to be testimonial than statements to law enforcement officers.” Id. - 38 - Next, the statements “occurred in the context of an ongoing emergency” during which “the teachers needed to know whether it was safe to release [the victim] to his guardian at the end of the day.” Id. “[T]he immediate concern was to protect a vulnerable child who needed help.” Id. at 247. Thus, the conversation with the preschool teacher resembled the 911 call held non-testimonial in Davis, 547 U.S. at 827-28; the purpose of both was to “identify the abuser in order to protect the victim from future attacks.” Clark, 576 U.S. at 247. And the conversation was “unlike the interrogation in Hammon [v. Indiana, 547 U.S. 813 (2006)] [the companion case to Davis], where the police knew the identity of the assailant and questioned the victim after shielding her from potential harm,” so the statements made during the interrogation were testimonial. Id. (emphasis added); see Davis, 547 U.S. at 831-32 (finding the Hammon victim’s statements were testimonial because she was “telling a story about the past” while being “protected” by police, and her statements were “neither a cry for help nor the provision of information enabling officers immediately to end a threatening situation”). Finally, the Court’s inquiry into the purpose of the conversation was not limited to whether the child had the purpose of providing evidence at trial, but included whether the teachers who interviewed the child “had the primary purpose of assisting” in the defendant’s prosecution. Clark, 576 U.S. at 240. The Court found that there was “no indication that the primary purpose of the conversation was to gather evidence for Clark’s prosecution,” but was instead “to protect” the victim. Id. at 247. The Court pointed to evidence that the conversation was “informal and spontaneous” and occurred “immediately” after the teachers discovered the injuries “in the informal setting of a preschool lunchroom and classroom.” Id. Only after detailing all these considerations did the Supreme Court explain that the victim’s age “fortifies” the conclusion that the particular “statements in question” were not - 39 - testimonial, observing that “[s]tatements by very young children will rarely, if ever, implicate the Confrontation Clause.” Id. at 247-48. In Clark, the victim was three years old. Id. at 240. In concluding, the Court again emphasized that “[c]ourts must evaluate challenged statements in context, and part of that context is the questioner’s identity,” and “[i]t is common sense that the relationship between a student and his teacher is very different from that between a citizen and the police.” Id. at 249. See also Logan, 72 Va. App. at 318 (affirming that “courts must consider ‘all of the relevant circumstances,’ and determine the objective purpose of the statement at the time it was made” (quoting Bryant, 562 U.S. at 358, 369)). Lacking the teacher-child context in Clark, the trial court here could have reasonably concluded that the primary purpose of the conversation between the forensic interviewer and the victim was to assist the government in the prosecution. Law enforcement set up the interview.22 A detective reviewed information contained in the victim’s Child Protective Services referral with the interviewer before the interview. During the interview, a detective was watching from another room on a live feed. At one point the interviewer paused the interview and left the room to consult the detective waiting outside, then returned to ask the victim more questions. When the interview occurred, there was no ongoing emergency. The reported abuse had happened six months earlier, Bista did not live with the victim, and law enforcement was already involved and investigating the report. These were all factors for the trial court to weigh in determining the primary purpose of the statements made in the forensic interview. Even brushing aside these considerations and assuming for a moment that the child’s age alone could rule the day, it was for the trial court to weigh the competing evidence and decide
22 In the Commonwealth’s own words below: “The forensic interview occurred as a result of law enforcement investigating the matter at hand. Law enforcement was present during the interview . . . in real-time at the interview location.” - 40 - whether she was like the “very young” child in Clark. Here, the victim’s actual age at the time of the forensic interview was 11 (not 3). She was in seventh grade, with an autism spectrum disorder diagnosis. Her father testified that her “maturity” level was that of a four or five year old. He explained she had “social skills problems,” was “distracted easily for anything,” and “self-talk[ed] a lot,” which he explained meant “talking random stuff.” This made her present as “immature for her age.” Her learning was at a “second grade level.” Balancing this testimony against the other circumstances of the interview is, again, a task for the trial court.23 The record simply lacks “all evidence necessary” to the concurrence’s suggestion that the victim’s statements were non-testimonial as an “alternative ground for affirmance.” Banks, 280 Va. at 618. III. An out-of-court testimonial statement cannot be cross-examined unless it was introduced as evidence in a hearing or proceeding where the same declarant was subject to cross-examination about the contents of that statement. This case is the first (anywhere) to resolve “the tricky question that seems not to have [previously] been asked: Does prior cross-examination, or a prior opportunity to cross-examine, justify admitting not only the prior testimony of the witness, but also prior statements by the witness, given at other times?” 4 Christopher Mueller & Laird Kirkpatrick, Federal Evidence § 8:28 (4th ed. 2022). It is undisputed that Bista did not cross-examine the victim during the forensic interview when she made the testimonial statements. And it is undisputed that the victim testified at the
23 The circumstances of the interview would include the trial court’s own assessment of the victim’s maturity and understanding as expressed in the victim’s answers in the interview. Meade v. Commonwealth, 74 Va. App. 796, 806 (2022) (“As factfinder, a trial court views video and other evidence to determine what it believes happened; we, on appellate review, view video evidence not to determine what we think happened, but for the limited purpose of determining whether any rational factfinder could have viewed it as the trial court did.”). The trial court did consider the “age, maturity, and mental state” of the victim in its determination that her statements were inherently trustworthy and therefore admissible under Code § 19.2-268.3(B). - 41 - preliminary hearing, which occurred after the forensic interview, and that her testimony at that hearing was subject to cross-examination. Finally, everyone agrees that the statements from the forensic interview were not affirmed by the victim—let alone introduced as evidence—at the preliminary hearing. The majority concludes the Confrontation Clause was satisfied when the forensic interview was introduced at trial because (1) Bista had the opportunity to impeach the victim at the preliminary hearing with statements from her earlier forensic interview and that this satisfied Bista’s right to cross-examine, and (2) the topics discussed at the preliminary hearing were “substantially similar” to the topics in the forensic interview. I disagree on both counts. A. Bista could only have used the forensic interview to impeach the credibility of the victim’s preliminary hearing testimony, and that is different than cross-examining the victim about the contents of the prior forensic interview. The rules of evidence apply to preliminary hearings in Virginia. Code § 19.2-183(B).24 Those rules allow a party to call into question the credibility of the witness’s preliminary hearing testimony through impeachment with a prior statement. Hall v. Commonwealth, 233 Va. 369, 374 (1987) (“It is fundamental to the right of cross-examination that a witness who is not a party to the case on trial may be impeached by prior statements made by the witness which are inconsistent with his present testimony . . . .”). However, “[i]mpeaching evidence developed on cross-examination is not offered to prove the substantive elements of the case, but is offered solely to attack the credibility of the witness.” Ronald J. Bacigal & Corinna Barrett Lain, Witnesses—Impeachment and Credibility, Va. Prac. Crim. Pro. § 17:14 (2022-2023 ed.). Because impeachment is relevant only to credibility, “[p]rior inconsistent statements . . . are inadmissible hearsay if they are offered to prove the truth of their content because they suffer
24 While Virginia applies the rules of evidence to a preliminary hearing, not every jurisdiction does. In federal court, for example, the federal rules of evidence do not apply to preliminary hearings and hearsay can be introduced as substantive evidence. Fed. R. Evid. 1101(d). - 42 - from all of the usual disabilities of hearsay.” Hall, 233 Va. at 374; see Va. R. Evid. 2:801(d)(1), 2:802. So the witness’s in-court testimony could be impeached by a prior inconsistent statement, diminishing the witness’s credibility. Or, having been impeached, a prior consistent statement could bolster the credibility of the witness’s in-court testimony.25 But in neither circumstance would that prior out-of-court statement be admissible for the truth of the content of that statement. Thus, absent admission of the out-of-court statement as evidence in a court proceeding, a testifying witness cannot be “cross-examined” on that statement at that proceeding. By definition, cross-examination is the act of questioning a witness about the testimony elicited on direct. 1 The Law of Evidence in Virginia § 11-9 (2022) (“Virginia follows the majority of states in limiting the scope of cross-examination to matters elicited during the examination in chief.”). A defendant cannot “cross-examine” a witness about testimony that was never introduced.26 Our Supreme Court has long held that “‘the repetition of a story does not render it any 25 more trustworthy[,]’ [and] [f]or that reason, there is a general rule excluding the prior consistent statements of a witness that are offered for the purpose of buttressing his testimony at trial.” Anderson v. Commonwealth, 282 Va. 457, 463-64 (2011) (quoting Scott v. Moon, 143 Va. 425, 434 (1925)). But “prior consistent statements made by the witness are admissible to support the witness” after “the opposing party has attempted to impeach the witness.” Id. at 464. Like a prior inconsistent statement, a prior consistent statement “may be considered by the fact-finder only for the fact of its utterance, not for the truth of its content.” Id. at 465 (emphasis added); see Va. R. Evid. 2:801(d)(2).
26 Other jurisdictions and jurists have affirmed that the Confrontation Clause requires more than the general opportunity to cross-examine and that the prosecution must elicit the statements sought to be admitted at trial so that the defendant has the opportunity to cross- examine the witness about those statements. See State v. Blue, 717 N.W.2d 558, 566 (N.D. 2006) (“A witness’s mere appearance at a preliminary hearing is not an adequate opportunity for cross-examination for purposes under the Confrontation Clause.”); In re Personal Restraint of Grasso, 84 P.3d 859, 868 (Wash. 2004) (en banc) (finding that the admission of a child victim’s hearsay statements did not violate the Confrontation Clause because the defendant “enjoyed the opportunity for full cross-examination about the alleged events and about [the] statements” (emphasis added)); State v. Noah, 162 P.3d 799, 807 (Kan. 2007) (Davis, J., concurring) - 43 - Sometimes an out-of-court statement may be admitted as substantive evidence at trial. When that occurs, and the witness is present at trial to be cross-examined about the statement, the Confrontation Clause is satisfied. California v. Green, 399 U.S. 149, 154, 159 (1970) (upholding constitutionality of California statute that allowed a past statement to “be introduced at trial without violating hearsay rules of evidence”). This form of deferred cross-examination passes constitutional muster because the witness “must now affirm, deny, or qualify” his prior statement under penalty of perjury. Id. at 159. Therefore, cross-examination at trial about a prior out-of-court statement introduced as evidence can be “full and effective.”27 Id. Not so for a preliminary hearing in Virginia. What is more, a preliminary hearing, as we have repeatedly held, is not a vehicle for discovery but is for the sole purpose of finding probable cause. “Probable cause is assessed in preliminary hearings in Virginia criminal cases ‘essentially [as] a screening process.’” Commonwealth v. Jackson, 276 Va. 184, 191 (2008) (alteration in original) (quoting Moore v. (“Because I find that the requirements of unavailability and opportunity for cross-examination discussed in Crawford and Davis relate to the statement sought to be admitted at trial, not generally to the declarant who made that statement, I would hold that even a full cross-examination at some point previously in the proceedings would not allow a court to admit the victim’s statements by way of other witness’ testimony if the State did not first establish that such statements had been subjected to cross-examination by offering into evidence the previous transcript.” (second emphasis added)); State v. Rohrich, 939 P.2d 697, 700-01 (Wash. 1997) (en banc) (“The opportunity to cross examine means more than affording the defendant the opportunity to hail the witness to court for examination. It requires the State to elicit the damaging testimony from the witness so the defendant may cross examine if he so chooses.” (emphasis added)).
27 Other jurisdictions have affirmed that a forensic interview may be introduced at trial when the witness testifies at trial and can be cross-examined about the interview. See, e.g., Marquis v. State, 242 So. 3d 86, 90 (Miss. 2018) (“[T]he admission of the recording did not violate the Confrontation Clause of the Sixth Amendment, because Marquis had the opportunity to, and did, cross-examine J.D. at trial.”); State v. Poulor, 932 N.W.2d 534, 538 (N.D. 2019) (affirming that introduction of complainant’s video-recorded statement did not violate the Confrontation Clause because the complainant was available and testified at trial). - 44 - Commonwealth, 218 Va. 388, 391 (1977)); Code § 19.2-183. “[A]s soon as may be practical,” Code § 19.2-183(A), the circuit court must determine “whether there is reasonable ground to believe that the crime has been committed and whether the accused is the person who committed it,” Moore, 218 Va. at 391. Criminal defendants cannot expand the limited scope of a preliminary hearing and turn it into a vehicle for discovery. See, e.g., Williams v. Commonwealth, 208 Va. 724, 729 (1968) (a defendant has no “right to call witnesses at the preliminary hearing for the purpose of discovery”); Davis v. Commonwealth, 215 Va. 816, 821 (1975) (“Manifestly, no statute or Rule of Court affords the accused a Right to use the preliminary hearing as a discovery vehicle.”). There is “no reason for the judge to hear further evidence against the accused” after the Commonwealth has established reasonable grounds to believe a felony has been committed. Williams, 208 Va. at 728. Because the rules of evidence apply to preliminary hearings in Virginia, Bista could have (and did) cross-examine the victim on her preliminary hearing testimony, and he could have (but did not) try to undermine the victim’s credibility by impeaching her with statements from her prior forensic interview. That Bista’s counsel asked a few questions informed by reviewing that interview does not override the rules of evidence. The issue is not (as the majority suggests) whether Bista was prohibited from conducting a “more thorough cross-examination” of the victim’s preliminary hearing testimony, or whether any failure to engage in more thorough cross- examination was “strategic.” Bista simply could not cross-examine the victim about the contents of a prior statement that was never introduced as substantive evidence.28
28 Under the rules of evidence, Bista could not have admitted the statement as substantive evidence at the preliminary hearing. That aside, the burden would have been on the Commonwealth (not Bista) to try to introduce the statement and establish why it was admissible as evidence. See Jackson, 276 Va. at 193 (recognizing the Commonwealth bears the burden to present evidence to prove probable cause in preliminary hearing in a criminal case); Melendez-Diaz, 557 U.S. at 324 (the State bears the burden of presenting its witnesses). - 45 - The majority’s contrary decision will not only erode defendants’ confrontation rights, but it will also result in more—and longer—preliminary hearings. By suggesting the opportunity to cross-examine is satisfied because Bista could have asked more questions at the preliminary hearing but made a “strategic choice” not to, a defendant who waives a preliminary hearing may do so at his peril. After all, that defendant also had the “opportunity” to have a preliminary hearing where he “could” have cross-examined the victim about, impeached the victim with, or asked questions informed by, a prior statement. Assuming a court allows a defendant to exceed the limited purpose of a preliminary hearing, in contravention of our caselaw, a defendant will now need to address every potential out-of-court testimonial statement the Commonwealth might introduce to mitigate the risk that a witness is later found unavailable to testify at trial—turning preliminary hearings into mini-trials. Moreover, prosecutors who harbor doubts about a witness’s competence may now be motivated to have the witness testify at a preliminary hearing and strategically not ask about any prior out-of-court statements. Ultimately, the analysis undertaken by my colleagues in the majority—concluding that the general opportunity to cross-examine a later-unavailable witness at some point is enough, so long as the testimony was substantially similar—ends up as no more than a judicial determination that the prior out-of-court statement was reliable enough. In other words, the very process of “[a]dmitting statements deemed reliable by a judge” that Crawford rejected as “fundamentally at odds with the right of confrontation,” before enshrining a superior procedural protection—the cross-examination of the actual statement. 541 U.S. at 61. B. Even if the opportunity to cross-examine should be understood as “topic specific” and not “statement specific,” significant testimony from the forensic interview was not introduced during the preliminary hearing. Because this is an issue of first impression, other courts have not yet decided whether prior testimonial statements that the defendant could not contemporaneously cross-examine - 46 - should be per se inadmissible or evaluated case-by-case. Even assuming a case-by-case approach is appropriate, the forensic interview here should have been excluded because it covered a number of incriminating subjects not raised by the prosecution at the preliminary hearing, thus denying Bista’s confrontation rights. To apply the majority’s test and determine whether the testimony from the preliminary hearing was “substantially similar” to the testimony from the forensic interview, such that cross-examination of one can stand in for cross- examination of the other, I cannot gloss over the horrific details of the assault as the victim described it. See Breeden v. Commonwealth, 43 Va. App. 169, 187 (2004) (“[T]he fact of the complaint of rape lay in the details of [the victim’s] statement.”); Mitchell v. Commonwealth, 25 Va. App. 81, 86 (1997) (“The details of the victim’s complaint were elements of the offense. Without those details, the complaint would have been incomplete.”). Thus, I will point out three significant aspects of the forensic interview that were absent from the preliminary hearing. First, during the forensic interview, the victim testified that the assault started when “my grandpa forced me to kiss him.” She demonstrated what the kiss looked like, showing the interviewer that Bista put his hand behind her “neck, then shoved” her head in and kissed her. She said Bista told her to “pucker her lips,” and she explained that the kiss was “gross” and the grossest part was that “he made me do it deeper, which is so disgusting” and she could “taste his breath.” She told the examiner that “[h]is tongue” went in her mouth and “after that I was very . . . so dizzy I was really mad.” The victim told him to stop kissing her but “he kept on doing” and “[h]is tongue started to make me start to make me tingle my head” and “I couldn’t stop tingling.” She said this whole time “[h]is hands were in my neck . . . so tight that I’m looks like I’m dying.” While this was going on, she tried to run away but he pulled her shirt and she “fell down” and he “keep dragging my shirt like 20 times . . . like 9-10 times and then I keep bumping my head” and “landed on my back.” - 47 - The Commonwealth specifically highlighted this part of the video in its closing argument, arguing to the jury that the victim’s account was credible and not something she would make up: You hear it on minute 28, 58 seconds where she’s describing, “He told me to pucker up, kiss. I told him, ‘What are you doing?’ He wouldn’t listen.” Again go to minute 31, three seconds where she’s describing how gross this kissing is. “He made me do it deeper. It was disgusting. I could taste his breath. I was really mad. I told him to stop, ‘What’s wrong with you?’ His tongue, it started to make me tingle in my head.” In closing, the Commonwealth also referred the jury to “Minute 33, 51, ‘I couldn’t stand. I tried to stand away from him, he kept dragging me, my shirt like ten--20 times, like nine to ten times bumping my head and landing it back.” At the preliminary hearing, in contrast, the victim never mentioned kissing at all. Nor did she testify that she had been dragged repeatedly, bumping her head. Instead, she said the assault began when Bista came into the room she was in and “just touched my private parts without taking my shorts off.” On cross-examination of her preliminary hearing testimony, she said Bista was “holding on to my shoulder” and “dragging” her and “wanted me to stay in the living room for like two hours, but I have to go to bed.” Second, the victim told the forensic interviewer an elaborate story about Bista trying “to take a video of the private parts” with a “flip phone that could record videos” and that she saw the “phone on his hand” and “checked that he was recording.” She explained she had “looked at his phone and figured out that he was recording” and saw “private parts” and “her butt” and “in that recording, her pants were down.” The victim recounted that the “flip phone” was a “black” “Nokia” with a screen. During her testimony on direct at the preliminary hearing, however, the victim did not mention any phone. On cross-examination, Bista’s counsel asked whether Bista had a phone or - 48 - took any videos of her, and the victim simply said no.29 Any other questions about the specifics of the victim’s prior testimony and why she provided such a detailed description of seeing a video on a phone that never existed would have plainly been outside the scope of direct examination. Third, the victim’s testimony during the forensic interview evolved over the course of that interview. There was no discussion of this at the preliminary hearing (nor could there have been without the ability for either party to introduce the interview statements for the truth they asserted). Bista was never able to cross-examine the victim about the possibility that the forensic interviewer may have (unintentionally) led her into changing her testimony.30 The initial story the victim told the forensic interviewer was that Bista started kissing her and ultimately “tried” to touch her private parts and then licked her private parts. The victim also described Bista touching her under her clothing. Then her mom walked in on them, ending the assault. The victim was clear that Bista had all of his clothing on during the assault—“the pants, the shirt, the hats, everything.” After this first description, the forensic interviewer prompted the victim with, “Did something happen with his private parts?” and the victim said yes, he was “trying” and “wanting” to put his parts inside her front and back. The interviewer then said, “I know you said that he put his private part in your butt. And where were his clothes when he did that?” And the victim responded, “His pants were a bit down.”
29 While this question was no doubt informed by the forensic interview, an informed question does not transform cross-examination of one testimonial statement into cross- examination of another prior testimonial statement.
30 Neither the majority nor the concurrence contest that the victim’s story changed during the interview, yet they dismiss this point as “speculative.” If Bista had the actual opportunity to cross-examine the victim on the forensic interview statements, there would be no need to “speculate” as to what he may have cross-examined the victim about. - 49 - There is an art to a forensic interview of a child and drawing out information that a child may be reluctant to share or too traumatized to initially remember. See Chris Newlin et al., Child Forensic Interviewing: Best Practices, U.S. Dep’t of Just. Off. of Juv. Just. & Delinq. Prevention, at 3-10 (Sept. 2015).31 Children often do not tell stories in linear ways. Id. at 4-5. But the victim was simply never “test[ed] in the crucible of cross-examination,” Crawford, 541 U.S. at 61, about whether the first version of her story was correct, or why she left out certain details the first time.32 These three examples highlight how the 45-minute excerpt of the interview the jury watched is not reducible to a single “topic” or a few overlapping areas of testimony. This is shown most obviously by the way the Commonwealth urged the jury to “absolutely judge this victim’s disposition by that forensic interview and her testimony . . . . This 11 year old with her disposition as shown in that interview did not make this up. She doesn’t know how to make this up. She doesn’t and she didn’t.” The simplest explanation is likely the best: if the victim’s forensic interview was truly “substantially similar” to her testimony at the preliminary hearing, the Commonwealth would not have needed to introduce it in the first place, or repeatedly reference it during closing (more than ten times). Explaining why it would be problematic for a court to reach the very conclusion the majority endorses today, Professors Mueller and Kirkpatrick observe that even if “the defense did have a chance to cross-examine the victim on what actually happened [at a preliminary hearing], and to test her memory, perception, and candor in describing the acts, events, and conditions in issue,” the out-of-court prior statement offered at trial “is certain to differ in some
31 Available at https://ojjdp.ojp.gov/sites/g/files/xyckuh176/files/pubs/248749.pdf.
32 As discussed below, while the first version of her story supports the aggravated sexual battery charge, only the second version supports the sodomy count. - 50 - significant ways from the preliminary hearing testimony—otherwise why would a prosecutor offer it?” See Mueller & Kirkpatrick, supra § 8:28.33 IV. The Confrontation Clause error was not harmless as to the sodomy charge. Because I find constitutional error, I must briefly address whether the error is harmless. Bista was convicted of two charges: one for aggravated sexual battery, and one for sodomy by anal penetration.34 To assess whether a constitutional error was harmless, we ask whether “absent the [constitutional error], is it clear beyond a reasonable doubt that the [factfinder] would have returned a verdict of guilty?” Commonwealth v. White, 293 Va. 411, 421 (2017) (alterations in original) (quoting United States v. Hasting, 461 U.S. 499, 510-11 (1983)). In other words, we ask “whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.” Id. at 420-21 (quoting Chapman v. California, 386
33 The treatise also suggests that the majority’s framing of the Confrontation Clause as topic-specific, rather than statement-specific, is wrong. “If the statement also was not offered at the preliminary hearing, the defense had no chance to test the statement itself, to probe the details that it relates, or to challenge the speaker about the statement in any way.” Mueller & Kirkpatrick, supra § 8:28. Indeed, “[w]hatever headway the defense might make in attacking the witness on her memory or accuracy in describing the events is a pale substitute for cross- examination that challenges the witness on the particular statement being offered in evidence.” Id.; see also 2 Barbara E. Bergman et al., Wharton’s Criminal Evidence § 6:10.30 (15th ed. 2021) (explaining that “[e]ven if the prosecution puts a witness on the stand, it may not introduce his prior testimonial statements if it does not at least first ask the witness to relay the substance of the statements in court” because “[t]he Confrontation Clause ‘requires the State to elicit damaging testimony from the witness so the defendant may cross examine if he so chooses’” (quoting Rohrich, 939 P.2d at 701)).
34 While forcible sodomy under Code § 18.2-67.1 could include other acts, such as cunnilingus, the indictment here specified only “anal intercourse,” and the jury was instructed that anal intercourse was an element of the crime of forcible sodomy. - 51 - U.S. 18, 23 (1967)). “This standard is not the same thing as simply asking ‘whether the legally admitted evidence was sufficient’ to support the conviction.” Id. at 422.35 Considering the evidence of aggravated sexual battery in the light most favorable to the Commonwealth, there was significant evidence of this offense besides the forensic interview— Bista’s confession to the victim’s mother that he had “licked” the victim’s “private part” would have been sufficient on its own.36 Other evidence supports this particular offense: the victim’s testimony at the preliminary hearing, trial testimony from the victim’s mother who walked into a room where she saw her daughter’s shorts drawn below her knees and Bista kneeling behind her, and forensic testing which could not eliminate Bista as a contributor to non-semen DNA found in the interior crotch of the victim’s underwear. Therefore, I would find the error harmless as to the count of aggravated sexual battery. The specific evidence of anal penetration necessary to support the sodomy conviction, however, was comparatively sparse. In its briefing on appeal, the Commonwealth points only to the victim’s testimony at the preliminary hearing and her forensic interview as evidence of the
35 The majority characterizes the dissent as finding the evidence “insufficient to prove anal penetration.” But, as required for constitutional error, I do not address whether “a rational jury could have found the defendant guilty,” but rather whether it is clear “‘beyond a reasonable doubt that a rational [factfinder] would have found the defendant guilty’” absent the inadmissible evidence. White, 293 Va. at 422 (alteration in original) (quoting Neder v. United States, 527 U.S. 1, 18 (1999)).
36 Under Code § 18.2-67.3, aggravated sexual battery requires that the defendant sexually abuse the victim and, as relevant here, that the victim is under 13. “Sexual abuse” includes an “act committed with the intent to sexually molest, arouse, or gratify any person, where . . . [t]he accused intentionally touches the complaining witness’s intimate parts or material directly covering such intimate parts.” Code § 18.2-67.10(6)(a). - 52 - sodomy. The first time the victim alleged anal penetration was during the forensic interview.37 She then testified to the same during the preliminary hearing. And her parents testified at trial that the victim told them at some point that Bista “put it on the front and tried to put it on the back.” (Emphasis added). While I view this evidence in the light most favorable to the Commonwealth, I cannot ignore the trial court’s finding that the victim’s mother “had some influence” on the victim’s memory of “whether she was sodomized.” I also cannot ignore the Commonwealth’s heavy reliance on the forensic interview during closing argument to corroborate the victim’s preliminary hearing testimony.38 Thus, I cannot say it is clear beyond a reasonable doubt that
37 During the hearing on whether to permit the victim’s statements under Code § 19.2-268.3, the victim’s mother initially testified that the victim immediately disclosed to her “that he took his private part in my front and back both sides. He entered it.” But the mother later clarified that the daughter immediately alleged only vaginal penetration. When both parents were interviewed by law enforcement, neither said, at that time, that the victim had disclosed anal penetration.
38 While forcible sodomy under Code § 18.2-67.1 could include other acts, such as cunnilungus, the indictment here specified only “anal intercourse.”
39 Under Code § 18.2-67.3, aggravated sexual battery requires that the defendant sexually abuse the victim and, as relevant here, that the victim is under thirteen. - 47 - The specific evidence of anal penetration necessary to support the sodomy conviction, however, was comparatively sparse. In its briefing on appeal, the Commonwealth points only to the victim’s testimony at the preliminary hearing and her forensic interview as evidence of the sodomy. The first time the victim alleged anal penetration was during the forensic interview.40 She then testified to the same during the preliminary hearing. And her parents testified at trial that the victim told them at some point that Bista “put it on the front and tried to put it on the back.” I cannot say it is clear beyond a reasonable doubt that the jury would have still returned a verdict of guilty without watching the 75-minute video of the victim speaking to the forensic interviewer.41 And so I dissent from this conclusion in Part I.C of the majority opinion. CONCLUSION That a child would be sexually assaulted is every parent’s worst nightmare. That it was a family friend—known to the child as “grandpa”—who committed the assault, is unimaginable. But in the face of bad facts, we should resist the temptation to make bad law. For the reasons set forth above, I would affirm Bista’s conviction for aggravated sexual battery, for which he is sentenced to serve 20 years of incarceration. But I would reverse Bista’s conviction for forcible
40 During the hearing on whether to permit the victim’s statements under Code § 19.2-268.3, the victim’s mother initially testified that the victim immediately disclosed to her “that he took his private part in my front and back both sides. He entered it.” But the mother later clarified that the daughter only immediately alleged vaginal penetration. When both parents were interviewed by law enforcement, neither said, at that time, that the victim had disclosed anal penetration.
41 The Supreme Court of Montana recently held that the admission of a forensic interview at trial violated the defendant’s Confrontation Clause rights because the defendant had no opportunity to cross-examine the witness about the statements in the interview and concluded that introduction of the video was not harmless. State v. Tome, 495 P.3d 54 (Mont. 2021). “The jury heard from [the victim’s] own lips how Tome had abused her, they saw her gestures, they observed her demeanor, and the video was a powerful presentation of the State’s complaining witness—a witness who was out-of-reach and unavailable for cross-examination,” and therefore, the introduction of this out-of-court statement was not harmless. Id. at 67. - 48 - sodomy, for which he received the mandatory minimum sentence of life imprisonment, and remand for a new trial, because the Confrontation Clause requires more. - 49 -