                                COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Benton and McClanahan
Argued at Alexandria, Virginia


CHARLES FRANKLIN HARLAND
                                                               MEMORANDUM OPINION* BY
v.      Record No. 0842-03-4                                   JUDGE JAMES W. BENTON, JR.
                                                                   SEPTEMBER 14, 2004
COMMONWEALTH OF VIRGINIA


                  FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
                                 Alfred D. Swersky, Judge

                  Heidi Meinzer, Assistant Public Defender, for appellant.

                  Michael T. Judge, Assistant Attorney General (Jerry W. Kilgore,
                  Attorney General, on brief), for appellee.


        The trial judge convicted Charles Franklin Harland of two counts of aggravated sexual

battery of a child and one count of forcible sodomy of a child. Harland contends the trial judge

erred (1) in denying his motion to suppress statements he made to the police, (2) in ruling that the

police officer’s failure to record the entire interrogation did not render inadmissible Harland’s

statements, and (3) in finding the evidence sufficient to support the convictions. For the reasons that

follow, we affirm the convictions.

                                                   I.

        The grand jury indicted Charles Franklin Harland on two counts of aggravated sexual

battery of a child under the age of thirteen in violation of Code § 18.2-67.3, two counts of forcible

sodomy of a child under the age of thirteen in violation of Code § 18.2-67.1, and one count of

taking indecent liberties with a child under the age of fourteen, in violation of Code § 18.2-370. On


        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
an appeal which challenges the denial of a motion to suppress evidence and also the sufficiency of

the evidence to support a conviction under the indictments, “‘we review the evidence in the light

most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible

therefrom.’” Archer v. Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation

omitted); Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). So

viewed, the evidence proved that Harland was a friend of Kathy Wyborski’s family for thirty-two

years. Wyborski accepted Harland’s offer to care for two of her children, a son who was eight years

old and another son who was ten years old, while she was incarcerated. Wyborski was incarcerated

from February of 2001 to March of 2002 and went to live with Harland in his apartment upon her

release. At that time, the younger boy was still living with Harland but the older boy was living

with his father and visiting occasionally.

        Wyborski described an incident, which occurred prior to Mother’s Day in 2002, where the

younger boy came running from Harland’s bedroom with Harland “right behind him.” The boy ran

behind her and said, “‘I won’t sleep with that fucking child molester.’” Five minutes later, the boy

told her that Harland had sexually assaulted him. Wyborski testified that she sought help and that a

complaint was reported to child protective services and a therapist within forty-eight hours of the

incident.

        Detective Tim Gleeson and a child protective services worker went to Harland’s apartment

and spoke with Wyborski about the complaint. Detective Gleeson then asked Harland if he would

“voluntarily respond to the police station” for an interview regarding the complaint. Detective

Gleeson testified that Harland said he would come to the police station, but “he had a couple of

things to take care of first.” Harland arrived at the station “within twenty minutes” after Detective

Gleeson returned to the police station. In an interview room, Detective Gleeson explained to

Harland that he was not under arrest, that he was free to go, and that he didn’t have to talk to him if

                                                  -2-
he didn’t want to. He testified that Harland responded that “it’s no problem” and said he would give

his side of the story.

        Detective Gleeson testified he first inquired about Harland’s relationship with Wyborski and

learned that Harland had a long standing relationship with Wyborski’s family. Detective Gleeson

then informed Harland of the boy’s allegations of sexual contact with Harland. He described

Harland’s response to his inquiry about specific sexual contact as follows:

                   He told me that there had been a couple of times where [the boy]
                had taken his hand and placed it on his penis, and he told me about
                one incident that happened a couple of weeks before . . . Wyborski
                was released from jail. He said that [the boy] had taken his hand and
                put it on his penis and that, that he had moved up in the bed to the
                point where his groin area was by . . . Harland’s head, and that he put
                his mouth on [the boy’s] penis.

                         *      *       *       *         *     *       *

                   He told me that [the boy’s] penis was erect, and he did not recall
                the child ejaculating. He told me that he didn’t think that he could
                ejaculate, but that his mouth was on [the boy’s] penis for
                approximately 20 seconds.

                         *      *       *       *         *     *       *

                He told me that he thought [the boy] wanted some stimulation. He
                also stated that a couple of times where he had actually put his hand
                on [the boy’s] penis, he thought the child wanted some stimulation,
                and that’s why [the boy] had done it.

        Detective Gleeson testified that he left the room briefly to speak with his supervisor after

Harland made these and other admissions. When he returned to the room, he arrested Harland.

Detective Gleeson informed Harland of his Miranda rights, and he had Harland initial the form from

which he read the Miranda rights. After reviewing the waiver form with Harland and ascertaining

that Harland understood what each right meant, Detective Gleeson began to tape record the

interview. He first asked Harland if he understood his rights, and Harland responded affirmatively.

Detective Gleeson then began questioning Harland, who repeated his earlier statements regarding

                                                    -3-
his sexual contact with the younger boy. Harland recalled one incident of oral sodomy, which

occurred a week before Wyborski was released from jail. The other incidents occurred when

Wyborski was incarcerated.

       Detective Gleeson also testified as to Harland’s response to questioning about any sexual

contact he had with the older boy:

               [Harland] started to talk about when the [older boy] was
               approximately three years old. He recalled touching his penis, but
               when the [older boy] . . . would be in the bathtub, and he said he may
               have said something silly as he touched the child’s penis.

                       *       *       *       *         *     *       *

                  And he also talked about how there were times when [the older
               boy] would lie down on top of him in his bed when he would come
               in his room to sleep in his bed.

                       *       *       *       *         *     *       *

                   He told me that --- I asked him if [the older boy’s] penis was
               erect, and he told me he didn’t think so. He did not think it was erect
               at that point.

                       *       *       *       *         *     *       *

                   I had asked him if there were any specific incidents similar to the
               one with [the younger boy] where he had put his hand on [the older
               boy’s] penis, and he told me that he does not recall. He didn’t think
               so.

When Detective Gleeson asked if Harland thought any of his actions were wrong, Harland

responded, “yes, the oral sex and the stimulation of the penis.”

       At trial, the younger boy testified about occasions when he slept in Harland’s bed with

Harland and the older boy while Wyborski was in jail. He testified Harland touched him “on [his]

penis . . . underneath [his] underwear sometimes” and Harland put his mouth on his penis “more

than once.” He testified that one of the incidents occurred a month after his mother was released

from incarceration and while she was in the apartment. He testified that he was always in Harland’s

                                                   -4-
bed when Harland touched him and that sometimes his penis was “just a little way in or . . . all the

way in” Harland’s mouth. He recalled that he was in third grade when Harland touched him.

       The older boy testified that Harland touched him on his penis and the touching always

occurred in Harland’s bedroom. He testified that Harland reached in through his underwear and that

Harland twice put the boy’s penis “all the way inside” Harland’s mouth. He recalled that this

occurred when he was in third or second grade and that he was in fourth grade when his mother

asked him if Harland had touched him. He testified he lied to his mother and told her that Harland

had not touched him “[b]ecause [he] was scared.” He said Harland stopped touching him when he

was eight or nine years old.

       The trial judge convicted Harland of two counts of aggravated sexual battery and of forcible

sodomy. He found the evidence insufficient to prove the charge of taking indecent liberties.

                                                  II.

       Harland contends he was in custody as soon as he arrived at the police station and, therefore,

the detective should have given him warnings as required by Miranda v. Arizona, 384 U.S. 436

(1966). Harland argues that he was in custody because he was the sole suspect and, therefore, the

focus of the investigation. Denying Harland’s motion to suppress, the trial judge made the

following ruling:

               The defendant was not in custody in the initial portion of the
               interview, and as soon as he was taken into custody, he was properly
               Mirandized, and he knowingly, voluntarily, and intelligently waived
               his rights after having been Mirandized, and the statement given by
               the defendant was voluntary, and should not be suppressed.

       In Oregon v. Mathiason, 429 U.S. 492 (1977), the Supreme Court described the

circumstances under which the administering of Miranda warnings applies:

               Any interview of one suspected of a crime by a police officer will
               have coercive aspects to it, simply by virtue of the fact that the police
               officer is part of a law enforcement system which may ultimately
               cause the suspect to be charged with a crime. But police officers are
                                                 -5-
                not required to administer Miranda warnings to everyone whom they
                question. Nor is the requirement of warnings to be imposed simply
                because the questioning takes place in the station house, or because
                the person questioned is one whom the police suspect. Miranda
                warnings are required only where there has been such a restriction on
                a person’s freedom as to render him “in custody.” It was that sort of
                coercive environment to which Miranda by its terms was made
                applicable, and to which it is limited.

Id. at 495.

        The record does not support Harland’s argument that he was “in custody” when he arrived

at the police station.

                   Among the circumstances to be considered when making the
                determination of whether a suspect was “in custody” are (1) the
                manner in which the individual is summoned by the police, (2) the
                familiarity or neutrality of the surroundings, (3) the number of
                officers present, (4) the degree of physical restraint, (5) the duration
                and character of the interrogation, and (6) the extent to which the
                officers’ beliefs concerning the potential culpability of the individual
                being questioned were manifested to the individual.

Harris v. Commonwealth, 27 Va. App. 554, 565-66, 500 S.E.2d 257, 262 (1998).

        The evidence proved that after the detective spoke with Wyborski in the apartment, he

explained to Harland that he was investigating a complaint made by the younger boy and he asked

Harland if he voluntarily would come to police headquarters to discuss the complaint. Harland

agreed to do so, saying “he would be down shortly” but needed to do “a few things first.” Although

Harland was not required to do so, he arrived twenty minutes later at the station. This was a

voluntary act. The record is undisputed that the detective told Harland that “he was not under arrest,

and that he was free to leave . . . [and] didn’t have to talk . . . if he didn’t want to.” The detective

said he “even opened the door and told him he could leave if he wanted to.” When the detective

asked Harland if he could hear Harland’s side of the story regarding the younger boy’s complaint

against him, Harland responded that he had “no problem” discussing the matter. This evidence

supports the trial judge’s finding that Harland initially was not in custody. “The fact that the

                                                   -6-
investigation had focused upon [Harland] and had become accusatory is not determinative of the

question of custody.” Smith v. Commonwealth, 219 Va. 455, 470, 248 S.E.2d 135, 144 (1978).

        Harland also contends that he did not knowingly, intelligently and voluntarily waive his

Miranda rights. He argues that because he had never before been arrested and did not remember

signing the rights waiver form, the trial court could not find a valid waiver.

                “A defendant’s waiver of his Miranda rights is valid only if the
                waiver is made knowingly, voluntarily and intelligently. Miranda,
                384 U.S. at 475. Whether a statement is voluntary is ultimately a
                legal rather than factual question. See Miller v. Fenton, 474 U.S.
                104, 110, 106 S. Ct. 445, 450, 88 L. Ed. 2d 405 (1985). Subsidiary
                factual questions, however, are entitled to a presumption of
                correctness. Id. at 112, 106 S. Ct. at 451. The test to be applied in
                determining voluntariness is whether the statement is the ‘product
                of an essentially free and unconstrained choice by its maker,’ or
                whether the maker’s will ‘has been overborne and his capacity for
                self-determination critically impaired.’ Schneckloth v.
                Bustamonte, 412 U.S. 218, 225[, 93 S. Ct. 2041, 36 L. Ed. 2d 854]
                (1973). In determining whether a defendant’s will has been
                overborne, courts look to ‘the totality of all the surrounding
                circumstances,’ id. at 226, including the defendant’s background
                and experience and the conduct of the police . . . .”

Burket v. Commonwealth, 248 Va. 596, 611, 450 S.E.2d 124, 132 (1994) (citations omitted).

        Detective Gleeson testified that he advised Harland of his Miranda rights. After advising

Harland of his Miranda rights, Detective Gleeson completed a waiver form, read the form to

Harland, and allowed Harland to read the form to himself. Harland marked the form indicating that

he understood each of his rights as Detective Gleeson advised him of them individually. Detective

Gleeson then completed a history sheet, recording Harland’s level of education, age, and

employment status. Harland said he was a college graduate, he was sixty-one years old, and he was

retired from a federal commission. Detective Gleeson testified that Harland agreed to speak with

him and answer questions without an attorney present. Indeed, Harland indicated so by signing the

waiver. This evidence establishes that Harland made a knowing, intelligent, and voluntary waiver.



                                                  -7-
       Harland further contends that the trial judge erred by admitting into evidence his statements

to Detective Gleeson because the entire interrogation was not recorded. He contends that the

constitutional due process guarantee requires the tape recording of custodial interrogations.

       Harland was in the interview room “about an hour” in the presence only of Detective

Gleeson. As we have indicated, Harland was not in custody when he first spoke to the detective.

After his arrest, the interrogation was tape recorded. Detective Gleeson testified that Harland

agreed to make a taped statement, which lasted about 20 to 25 minutes. Detective Gleeson said that

when he began recording the interview, he reviewed what had occurred prior to recording “as a

matter of record.”

               I said did you voluntarily respond down here to the police station,
               and I did advise you that you were not under arrest at first, and you
               did understand that, and that you are free to leave and you didn’t
               have to tell your side of the story, and [Harland] responded yes.

                 And then I told him did you understand that I advised you of
               your rights and that you understood them, and he said yes.

       Harland testified that he was “[p]retty stressed out” learning he was under arrest, since he

had never been arrested before, and he didn’t “remember going through [the rights waiver form].”

Although the record does not contain the actual recording, the record does establish that the

confession Harland made after receiving Miranda warnings was fully recorded on the tape. In short,

the factual predicate for Harland’s contention does not exist. Accordingly, we hold that the trial

judge committed no error.

                                                 III.

       Harland contends the trial judge erred in finding the evidence sufficient to support his

convictions. Specifically, he argues that the dates of the alleged offenses were overly broad in

counts two and three and that the Commonwealth failed to prove the act occurred as alleged in the

amended count four.

                                                 -8-
        Count two of the indictment alleged that the aggravated sexual battery occurred “[o]n or

between the 9th day of February, 2001, and the 17th day of May, 2002.” Count three alleged the

aggravated sexual battery occurred “[o]n or between the 28th of August, 1995, and the 28th day of

August, 2000.” Count four was amended to read that the sodomy occurred “[o]n or between the 1st

day of January, 1998 and the 28th day of August, 2000.” We have previously held that in child

sexual abuse prosecutions, “a case need not be dismissed where there is an impossibility of

ascertaining the date of the offense, or where the prosecutor proves the offense occurred at a time

different than that alleged in the indictment.” Clinebell v. Commonwealth, 3 Va. App. 362, 366,

349 S.E.2d 676, 678-79 (1986), rev’d on other grounds, Clinebell v. Commonwealth, 235 Va. 319,

368 S.E.2d 263 (1988). Although the Supreme Court vacated the conviction in Clinebell, the Court

“concluded that the indictments [in Clinebell were] legally sufficient, and on this issue, . . .

affirm[ed] the holding and rationale.” 235 Va. at 321, 368 S.E.2d at 264.

        The following language in Marlowe v. Commonwealth, 2 Va. App. 619, 347 S.E.2d 167

(1986), is also instructive.

                [T]he complaining witnesses were two young children, ages nine
                and ten. To require that a child or any witness be able to recall the
                exact date an event occurred in his or her life in order to obtain a
                conviction would too often preclude prosecutions in this type of
                case where the victims are children and the crimes are not
                discovered until some time after their commission. The
                Commonwealth’s case would too often fail because it could not
                specify a date of the offense against the child. It is this same
                reasoning which permits the Commonwealth to prove the
                commission of the crime charged on a date different than that
                alleged in the indictment.

Id. at 625-26, 347 S.E.2d at 171.

        The evidence proved that Wyborski was incarcerated from February of 2001 to March of

2002. Harland confessed that he touched the younger boy’s penis on at least one occasion during

the period of Wyborski’s incarceration. Although the younger boy could not indicate whether

                                                  -9-
Harland touched his penis while his mother was in jail, he did testify that Harland touched his penis

when he was in the third grade. The older boy was also able to articulate that the incidents of

touching and sodomy occurred when he was between second and third grade.

        Code § 18.2-67.1 provides, in pertinent part, that “[a]n accused shall be guilty of forcible

sodomy if he or she engages in . . . fellatio . . . and . . . [t]he complaining witness is less than thirteen

years of age.” Code § 18.2-67.3 provides, in pertinent part, that “[a]n accused shall be guilty of

aggravated sexual battery if he or she sexually abuses the complaining witness, and . . . [t]he

complaining witness is less than 13 years of age.” The evidence proved that at the time of these

incidents of sexual abuse and sodomy, both boys were under the age of thirteen. The age of the

complaining witnesses and the proof that the acts in themselves occurred are the essence of the

offenses charged. Cf. Waitt v. Commonwealth, 207 Va. 230, 235, 148 S.E.2d 805, 808 (1966)

(upholding the conviction for statutory rape where the age of the child was not in dispute and time

was not of the essence of the crime charged).

        We hold that the trial judge did not err in denying the motion to suppress and in finding the

evidence sufficient to support the convictions. Accordingly, we affirm the convictions.

                                                                                          Affirmed.




                                                   - 10 -
