                                          COURT OF APPEALS OF VIRGINIA


            Present: Judges McCullough, Huff and Senior Judge Haley
PUBLISHED


            Argued at Chesapeake, Virginia


            JOSEPH ALTIRO TURNER
                                                                                       OPINION BY
            v.       Record No. 0352-13-1                                           JUDGE GLEN A. HUFF
                                                                                       MAY 20, 2014
            COMMONWEALTH OF VIRGINIA


                              FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                                      John C. Morrison, Jr., Judge Designate

                            Caswell W. Richardson, Assistant Public Defender (Office of the
                            Public Defender, on brief), for appellant.

                            Robert H. Anderson, III, Senior Assistant Attorney General
                            (Mark R. Herring, Attorney General, on brief), for appellee.


                     Joseph A. Turner (“appellant”) appeals his convictions of three counts of aggravated

            sexual battery, in violation of Code § 18.2-67.3(A)(1). Following a bench trial in the Circuit

            Court of the City of Norfolk (“trial court”), appellant was sentenced to thirty years’

            imprisonment in the Department of Corrections with seventeen years suspended. Appellant

            presents two assignments of error on appeal. First, appellant contends the trial court erred in

            allowing C.M. (the child victim) to write certain portions of her testimony, rather than speaking

            it, as this violated appellant’s Sixth Amendment right to confront his accuser. Second, appellant

            contends the trial court lacked the authority to allow C.M. to write her testimony, as the General

            Assembly specifically provided that this situation be addressed in a different manner when it

            enacted Code § 18.2-67.9. For the following reasons, this Court affirms the judgment of the trial

            court.
                                        I. BACKGROUND

       On appeal, “‘we consider the evidence and all reasonable inferences flowing from that

evidence in the light most favorable to the Commonwealth, the prevailing party at trial.’”

Williams v. Commonwealth, 49 Va. App. 439, 442, 642 S.E.2d 295, 296 (2007) (en banc)

(quoting Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004)). So viewed,

the evidence is as follows.

       In February 2011, appellant began living with his girlfriend and her ten-year-old daughter,

(“C.M.”). In December 2011, C.M. informed her mother that appellant had sexually abused her,

causing the mother to end her relationship with appellant and tell appellant that he was no longer

welcome to live in her house.

       On July 18, 2012, appellant was indicted on three counts of forcible sodomy, in violation of

Code § 18.2-67.1, and three counts of aggravated sexual battery, in violation of Code

§ 18.2-67.3(A)(1). Prior to appellant’s trial, the Commonwealth filed a motion in limine seeking

to allow C.M. to write portions of her testimony. The motion alleged that on three separate

occasions during appellant’s preliminary hearing, C.M. had been unable to respond orally to

questions propounded by counsel and, consequently, was allowed to respond in writing.

       At the hearing on the motion in limine, the Commonwealth presented the testimony of

Erinn Portnoy (“Portnoy”), a licensed clinical social worker, whom the trial court received as an

expert witness in the field of child psychology, specializing in victims of child abuse, sexual

abuse, and physical abuse. Portnoy testified that she had conducted a forensic evaluation of

C.M. and found that C.M. “had a great deal of trouble verbalizing the allegations” against

appellant. Portnoy testified that C.M. could talk about the allegations in “general terms, but

when it came to specific [sic], she needed to write them down.” Specifically, Portnoy described

C.M. as “very avoidant when talking about the allegations. She would put her head down on the

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table. She was having a lot of difficulty. She just shut down almost completely. Very teary, she

didn’t want to talk about what happened.” Based on her evaluation, Portnoy diagnosed C.M.

with post-traumatic stress disorder, and concluded that, even if C.M. testified through

closed-circuit television, she would still need to “write down” parts of her testimony “due to her

trauma and her avoidance symptoms.”

       At the conclusion of the hearing, the trial court granted the Commonwealth’s motion, but

conditioned its order on the requirement that the Commonwealth attempt to elicit an oral

response from C.M. before she would be allowed to respond in writing. The trial court further

ruled that “[i]f and when [C.M.] elects to write an answer down, the Commonwealth can take the

answer and read it to her and say, ‘Is this your answer to the question?’” The trial court

concluded that this procedure would provide “sufficient opportunity for . . . appellant to observe

[C.M.’s] demeanor. If she’s making it up or lying, then there will be plenty of opportunity for

somebody to evaluate that, but I don’t find that [appellant’s Sixth Amendment] rights are going

to be compromised.”

       At trial, C.M. was initially questioned regarding her competency as a witness, and the

trial court ruled that she was competent to testify. C.M. then testified that appellant had touched

her six times in a way she did not like, including three times at her home in Norfolk. Regarding

the first incident in Norfolk, C.M. testified that it occurred when she was sleeping in her bed

“before Christmas.” The Commonwealth then asked C.M. to “tell the judge what happened,” but

C.M. was unable to do so. Consequently, the trial court allowed C.M. to respond to the

Commonwealth’s question in writing. The trial court then accepted C.M.’s written response into

evidence and read it aloud: “I was in my room asleep and [appellant] came into my room and he

pulled my pants down and got on top of me.”




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       C.M. then indicated she could not say aloud what happened after appellant got on top of

her, but she indicated that she could use anatomically correct pictures of a female and male to

describe it. C.M. first circled the penis of the anatomically correct male photo labeled “1,” and

the buttocks on the female photo labeled “4.” C.M. then wrote that “[appellant] put 1 into my 4.”

The trial court read C.M.’s written response aloud and accepted it into evidence. C.M. then

stated that during this first incident, she was lying on her stomach.

       C.M. subsequently testified that the second incident occurred one night in November

after she fell asleep watching television in her mother’s room. C.M. testified that on that night,

appellant was the only other person home with her. After again being unable to verbalize the

details of what happened, C.M. wrote: “He came into my room and pulled down my pants and

put his 1 in my 4.” The trial court then asked C.M. if she meant the same “1” and the same “4”

as she had previously circled in the pictures, and C.M. orally responded, “Yes.”

       C.M. then testified that the third incident happened in her bedroom after she fell asleep.

When asked to describe what happened on the third occasion, C.M. orally replied, “[t]he same

thing as always,” which she later clarified as being the same thing that happened in the first two

incidents. Subsequently, the Commonwealth referred to C.M.’s written note that appellant had

put his “1” in her “4” and asked how that felt. C.M. responded, in writing, that it “[h]urt” “[m]y

4.” C.M. then orally testified that the first person she told about any of the incidents was her

mother and that she had done so before Christmas in 2011.

       In an extensive cross-examination, C.M. testified about previous statements she had made

to both a Norfolk police detective and Portnoy, what she did as appellant was on top of her

during each of the three incidents, and what finally caused her to tell her mom about the

incidents. Further, during this cross-examination, C.M. orally expanded upon her written

testimony. Specifically, C.M. testified that she knew it was appellant’s “number one” because

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she had seen something about it in a movie and that she “know[s] more things that an

11-year-old shouldn’t.”

       At the close of the Commonwealth’s evidence, the trial court granted appellant’s motion

to strike the three forcible sodomy charges for lack of sufficient proof of penetration, but denied

appellant’s motion to strike the three aggravated sexual battery charges. In so ruling, the trial

court stated that “this young lady was under a lot of stress, obviously, and she did reasonably

well under all of those circumstances.” At the close of appellant’s evidence, the trial court

convicted appellant on three counts of aggravated sexual battery. This appeal followed.

                                          II. ANALYSIS

                                       A. Sixth Amendment

       On appeal, appellant first contends that the trial court’s decision to allow C.M. to write

portions of her testimony violated his rights under the Confrontation Clause of the Sixth

Amendment. Specifically, appellant argues he was denied his right to observe C.M.’s demeanor

as she was writing portions of her testimony, which were crucial to the Commonwealth’s case.

       “On appeal, constitutional arguments present questions of law that this Court reviews de

novo.” Crawford v. Commonwealth, 281 Va. 84, 97, 704 S.E.2d 107, 115 (2011) (citing Shivaee

v. Commonwealth, 270 Va. 112, 119, 613 S.E.2d 570, 574 (2005)).

       “The Confrontation Clause of the Sixth Amendment, made applicable to the States

through the Fourteenth Amendment, provides: ‘In all criminal prosecutions, the accused shall

enjoy the right . . . to be confronted with the witnesses against him.’” Maryland v. Craig, 497

U.S. 836, 844 (1990). Under the Confrontation Clause, a criminal defendant has several rights

regarding adverse witness testimony from a child, including that the “witness must be competent

to testify and must testify under oath; the defendant retains full opportunity for contemporaneous

cross-examination; and the judge, jury, and defendant are able to view . . . the demeanor (and

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body) of the witness as he or she testifies.” Id. at 851; see also Johnson v. Commonwealth, 40

Va. App. 605, 615, 580 S.E.2d 486, 491 (2003) (emphasis added). Additionally, “the

Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing

before the trier of fact.” Coy v. Iowa, 487 U.S. 1012, 1016 (1988).

       “‘[T]he Confrontation Clause . . . ensure[s] the reliability of the evidence against a

criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding

before the trier of fact.’” Dearing v. Commonwealth, 259 Va. 117, 123, 524 S.E.2d 121, 124

(2000) (quoting Craig, 497 U.S. at 845). Or, in other words, “[the Confrontation Clause] may be

said to cause trauma for the very purpose of eliciting truth.” Craig, 497 U.S. at 856.

       In the present case, appellant argues that he was afforded every right guaranteed by the

Confrontation Clause except for the right to view C.M.’s demeanor as she wrote portions of her

testimony. Appellant’s argument, however, presents none of the perils from which the

Confrontation Clause protects defendants in criminal proceedings. Rather,

               the primary objective of the [Confrontation Clause] . . . [is] to
               prevent depositions or ex parte affidavits . . . being used against [a
               defendant] in lieu of personal examination and cross-examination
               of the witness . . . compelling [the witness] to stand face to face
               with the jury in order that they may look upon him, and judge by
               his demeanor . . . and the manner in which he gives his testimony
               whether he is worthy of belief.

Mattox v. United States, 156 U.S. 237, 242-43 (1972) (emphasis added). The record in the

present case demonstrates that appellant, his counsel, and the trial judge retained an uninhibited

view of C.M. throughout her testimony, including the written portions, as required by the

Confrontation Clause. Moreover, appellant had a full opportunity to cross-examine C.M. and

bring attention to “the manner” of C.M.’s testimony, thereby allowing the trial court, sitting as

the trier of fact, to determine whether it was “worthy of belief.” See id.




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       While this is a case of first impression in Virginia, the Vermont Supreme Court addressed

a similar question in State v. Brink, 949 A.2d 1069, 1071-72 (Vt. 2008), and determined that the

defendant’s rights under the Confrontation Clause of the Sixth Amendment were not violated

when a child witness, who was the victim of sexual abuse, was allowed to write portions of her

testimony. In Brink, the child was allowed to provide a written response to the prosecutor’s

question “about which part of defendant’s body was touching her when she awoke to find

defendant on top of her.” Id. at 1071. When the child was unable to read to the jury what she

had written, “the [trial] court further permitted the state’s attorney to ask her: ‘Ryan’s penis was

in my vulva, is that what you wrote, yes or no?’” Id. The child responded, “‘Yes.’” Id.

       In holding that the child’s written testimony did not violate the defendant’s right to

observe the child’s demeanor, the Vermont Supreme Court emphasized that the defendant

retained an uninhibited view of the child throughout her oral and written testimony. Id. at

1072-73. The court also noted that the “defendant retained a full opportunity for

contemporaneous cross-examination of [the child],” which allowed the defendant an opportunity

to explore the child’s reluctance to provide an oral response. Id. at 1072.

       Similarly, in the present case, C.M. provided her testimony, including her written

allegations, in full view and awareness of appellant, his counsel, and the trial court. Further,

appellant had a full opportunity to explore C.M.’s written testimony on cross-examination.

Accordingly, appellant was afforded his right to observe C.M.’s demeanor while testifying. If

anything, “the manner” of C.M.’s testimony goes to its weight, not its admissibility under the

Confrontation Clause. See Mattox, 156 U.S. at 242-43. Nevertheless, appellant argues his Sixth

Amendment rights were infringed because he was unable to view C.M.’s demeanor when she

was writing as effectively as he would have been able to if she orally testified.




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       This argument presents a similar issue as was addressed by the United States Supreme

Court in Delaware v. Fensterer, 474 U.S. 15 (1985). In that case, the defendant argued he was

denied his right to cross-examination because an expert witness testified on direct examination

regarding his opinion of the case, but upon cross-examination, was unable to recall the basis for

his opinion. Id. at 16-17. In holding that the defendant’s rights under the Sixth Amendment had

not been infringed, the United States Supreme Court stated that the “Confrontation Clause

guarantees an opportunity for effective cross-examination, not cross-examination that is effective

in whatever way, and to whatever extent, the defense might wish.” Id. at 20. The Court further

noted that the

                 Confrontation Clause includes no guarantee that every witness
                 called by the prosecution will refrain from giving testimony that is
                 marred by forgetfulness, confusion, or evasion. To the contrary,
                 the Confrontation Clause is generally satisfied when the defense is
                 given a full and fair opportunity to probe and expose these
                 infirmities through cross-examination, thereby calling to the
                 attention of the factfinder the reasons for giving scant weight to the
                 witness’ testimony.

Id. at 21-22.

       Similarly, while the Confrontation Clause guarantees a right to observe an adverse

witness’ demeanor while she is testifying, it does not guarantee the right to observe an adverse

witness’ demeanor in whatever way, and to whatever extent, a defendant prefers. Rather, it is the

trial court, not appellant, that has discretion in determining “the mode . . . of interrogating

witnesses and presenting evidence . . . so as to . . . protect witnesses from harassment or undue

embarrassment.” Rule 2:611(a). It is enough that, in the present case, appellant retained an

uninhibited view of C.M. throughout her entire testimony, and was then afforded the opportunity

to cross-examine C.M., and thereby call attention to the manner of her testimony as a reason for

giving it “scant weight.” See Fensterer, 474 U.S. at 21-22.



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          Accordingly, this Court holds that the trial court’s decision to allow C.M. to write

portions of her testimony did not infringe upon appellant’s rights under the Confrontation

Clause.

                                          B. Code § 18.2-67.9

          Appellant next argues that the trial court erred by not following the procedure outlined in

Code § 18.2-67.9 when it allowed C.M. to write portions of her testimony. Code § 18.2-67.9

provides, in relevant part, as follows:

                 A. The provisions of this section shall apply to an alleged victim
                 who was fourteen years of age or under at the time of the alleged
                 offense and is sixteen or under at the time of the trial and to a
                 witness who is fourteen years of age or under at the time of the
                 trial.

                 In any criminal proceeding, including preliminary hearings,
                 involving an alleged offense against a child, . . . the attorney for
                 the Commonwealth or the defendant may apply for an order from
                 the court that the testimony of the alleged victim or a child witness
                 be taken in a room outside the courtroom and be televised by
                 two-way closed-circuit television . . . .

                 B. The court may order that the testimony of the child be taken by
                 closed-circuit television as provided in subsection A if it finds that
                 the child is unavailable to testify in open court . . . .

(Emphasis added). Citing to the interpretive principle of expression unius est exclusion alterius,

appellant argues that the General Assembly’s allowance for closed-circuit testimony through

Code § 18.2-67.9 suggests that written testimony by an alleged child victim was not intended to

be used, or at least that closed-circuit television was meant to be attempted first.

          This argument fails, however, because Code § 18.2-67.9 is inapplicable to the present

case. Pursuant to Code § 18.2-67.9, a court may order a child’s testimony be done through

closed-circuit television “if it finds that the child is unavailable to testify in open court.” In the

present case, the trial court made no such finding. In fact, C.M. was available and did testify in

open court. Moreover, even if C.M. was unavailable to testify, nothing in the plain language of

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the statute requires its application. Rather, Code § 18.2-67.9 provides that the trial court “may”

grant such an order if the statute’s requirements are met. See Small v. Fannie Mae, 286 Va. 119,

135, 747 S.E.2d 817, 826 (2013) (“where the General Assembly uses ‘may’ it grants

discretionary authority”).

       Appellant attempts to circumvent this plain language by invoking the construction

principle of expression unius est exclusion alterius. This interpretive principle, which is

nonbinding, applies when a group of listed terms implies that omitted terms were not meant to be

expressed; in other words, one can infer that an item not listed was intentionally omitted. See

Conkling v. Commonwealth, 45 Va. App. 518, 522-23, 612 S.E.2d 235, 237-38 (2005). This

interpretive principle does not apply in the present case, however, because the threshold

requirement of Code § 18.2-67.9’s applicability – that the witness be unable to testify in open

court – was not met. Furthermore, to accept appellant’s argument would mean that the General

Assembly intended every manner of child testimony to be explicitly delineated in a statute.

       Therefore, this Court rejects appellant’s argument that Code § 18.2-67.9 is applicable to

the present case. Instead, this Court holds that the trial court was within its discretion in

allowing C.M. to write certain portions of her testimony. See Rule 2:611(a) (The trial court has

discretion in determining “the mode . . . of interrogating witnesses and presenting evidence . . .

so as to . . . protect witnesses from harassment or undue embarrassment.”).

                                        III. CONCLUSION

       For the foregoing reasons, this Court holds that appellant’s Sixth Amendment rights were

not violated when C.M. was allowed to write portions of her testimony. Further, this Court holds

that the trial court did not err by failing to requiring C.M. to testify in accordance with the

procedure outlined in Code § 18.2-67.9 because, by its own terms, the statute is inapplicable.

                                                                                            Affirmed.

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