                                         COURT OF APPEALS OF VIRGINIA


            Present: Chief Judge Decker, Judges Petty and Huff
            Argued at Richmond, Virginia
PUBLISHED




            CHARLES ERSKINE CHURCH
                                                                              OPINION BY
            v.     Record No. 0264-18-2                           CHIEF JUDGE MARLA GRAFF DECKER
                                                                           NOVEMBER 12, 2019
            COMMONWEALTH OF VIRGINIA


                            FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                                      Walter W. Stout, III, Judge Designate

                           Lauren Whitley, Deputy Public Defender, for appellant.

                           A. Anne Lloyd, Assistant Attorney General (Mark R. Herring,
                           Attorney General; David M. Uberman, Assistant Attorney General,
                           on brief), for appellee.


                   Charles Erskine Church appeals his convictions for object sexual penetration of a child

            and taking indecent liberties with a child, in violation of Code §§ 18.2-67.2(A)(1) and

            18.2-370(A)(1).1 He argues that the trial court erred by denying his motion to dismiss due to a

            failure to timely disclose exculpatory evidence. The appellant also contends that the trial court

            erroneously admitted a pair of girl’s underwear into evidence, along with related DNA evidence

            and testimony. For the reasons that follow, we affirm the convictions.




                   1
                     The record was sealed by the circuit court. Nevertheless, this appeal necessitates
            unsealing relevant portions of the record in order to resolve the issues raised by the appellant.
            Consequently, “[t]o the extent that we mention facts found only in the sealed record, we unseal
            only those specific facts, finding them relevant to our decision in this case. The remainder of the
            previously sealed record remains sealed.” Du v. Commonwealth, 292 Va. 555, 560 n.3 (2017).
                                        I. BACKGROUND2

       The appellant was tried by a jury and convicted for sexually abusing his daughter (the

victim).3

       On the evening of Sunday, November 1, 2015, the victim’s mother took her and her

younger sister to the appellant’s apartment. At the time, the victim was eleven years old, and her

sister was six. The children were scheduled to remain in the appellant’s custody until Tuesday,

November 3, 2015.

       On Tuesday evening, the mother picked up the victim from basketball practice. During

the drive home, the victim started crying. When her mother asked what was wrong, she said that

“he tried to stick it in her,” but she would not say more.

       After the victim told her mother about the abuse, the mother took her to a hospital. Two

pediatric nurse practitioners performed a sexual assault examination on her. During the exam,

the victim identified the appellant as the person who hurt her. There was redness to the area

around the victim’s vulva and anus and bruising around the anus. She was tearful and had pain

near her rectum.

       The next day, an employee of the Child Advocacy Center conducted a forensic interview

of the victim. She told the interviewer that the appellant “tried to stick his private in her front

private part” but “it didn’t work.” She also said that she did not know if anything “came out of”

the appellant’s “private.” Further, the victim revealed that she was forced to do “something”

with her mouth to the appellant’s body but she did not want to talk about it. During the



       2
         Under the applicable standard of review, we view the evidence in the light most
favorable to the Commonwealth, as the prevailing party below. See, e.g., Riner v.
Commonwealth, 268 Va. 296, 303 (2004).
       3
        This opinion refers to the appellant’s daughter as “the victim,” her mother as “the
mother,” and the appellant’s wife at the time of the offenses as “the stepmother.”
                                               -2-
interview, the victim made a colorful drawing of the tank top and shorts she had worn on the

night of the attack.

        The police searched the appellant’s apartment on November 4, 2015, the day after the

victim told her mother about the crimes. Detective Steven Jones, with the Richmond Police

Department, seized a pair of shorts with peace signs and stars printed on them, a pink tank top, a

pair of girl’s underwear, and a pair of men’s underwear. The items were found together in a pile

of clothing on the floor of the bathroom near the laundry hamper. The shorts and tank top

matched the description of the outfit that the victim said she wore on the night of the offenses. A

pair of girl’s underwear, a child’s size eight, was in the laundry pile directly beneath the shorts.4

At the time of the incident, the victim wore child’s size eight underwear, and her sister wore a

child’s size four.

        At the appellant’s jury trial, forensic experts testified regarding DNA evidence.

Biological matter was collected from the inside crotch area of the girl’s underwear. From that

material, a DNA mixture profile was developed. The Commonwealth’s forensic experts opined

that the genetic material was from two people. Neither the appellant nor the victim could be

eliminated as the contributors to the DNA mixture.5

        A defense expert in forensic DNA analysis and recovery characterized the genetic

material found on the girl’s underwear as trace DNA. He opined that the presence of an allele

that did not match the victim or the appellant made it likely that a third person contributed to the

mixture. He also stated that there was “a very good chance” that the girl’s underwear could have

“picked up” DNA as a result of being deposited with other dirty laundry.


        4
            The trial court admitted the underwear into evidence over the appellant’s objection.
        5
         One expert explained the likelihood of the appellant and the victim not being the
contributors and the DNA coincidentally matching a random person was between one in 140
million and one in 1.3 trillion.
                                              -3-
       The victim testified at trial. She explained that on the evening of Monday, November 2,

2015, she and her sister were alone in the apartment with the appellant. The two girls went to

bed, and the victim’s sister fell asleep. Around 7:00 p.m., the appellant entered the bedroom and

told the victim that “he was going to fuck” her.

       According to the victim, after she and the appellant moved to his bedroom, he removed

her shorts and underwear and then his jeans and underwear. After he put the victim down on the

bed, he put his “front private part” in her “front private part.” The victim testified that the

appellant’s “private part” was on both the outside and the inside of her “front private part” and

that it hurt. She also said that she felt pain when the appellant touched the inside and outside of

her “butt” with his penis. She described the pressure as feeling like she needed to “poop.”

According to the victim, at some point the appellant touched his tongue and fingers to her “front

private part” and put his mouth on her breasts. He also put her mouth on his penis and

“something came out” into her mouth.

       The victim explained that after these assaults she went back to her bedroom. A short

while later, the appellant returned and said he was going to “fuck” her sister. To protect her

sister, the victim went back to the appellant’s bedroom with him, and he “did everything again.”

He threatened the victim not to tell anyone what had happened or “one of [them] would wind up

dead.” She knew that the appellant always kept his gun in his room.

       The victim was asked about what she wore on the night of the attack. She testified that

on that night, she wore shorts with peace signs and stars printed on them, a pink tank top, and

underwear. She could not describe her underwear.

       During cross-examination of the victim, defense counsel raised an objection concerning

discovery. Out of the presence of the jury, counsel asserted that the Commonwealth had not

disclosed that the victim claimed the appellant had threatened to abuse her sister and that this

                                                 -4-
testimony was inconsistent with the victim’s statements during her medical examination and

forensic interview. The trial court instructed the prosecutor to investigate whether the victim had

made prior inconsistent statements that had not been revealed to the defense. The court indicated

that it would address any such matters the following day. After the discussion, the appellant

finished cross-examining the victim, but the court did not release her as a witness.

       On the morning of the second day of trial, the prosecutor reported that during trial

preparation the victim mentioned that on the morning after the sexual abuse, the appellant had

asked her if he “could do it again.” The prosecutor also explained that before trial, the victim

had not positively identified the girl’s underwear as her own. In response, the trial court offered

to have the victim retake the witness stand so that the appellant could question her further, but

the appellant declined. Instead, he made a motion to dismiss the charges based on the late

disclosure of exculpatory evidence. In the alternative, the appellant asked for a new trial. The

court denied the motions.

       The stepmother, who was a defense witness, testified that when she returned home from

work at about midnight on November 2, 2015, she checked on the victim and her sister. At that

time, the victim did not appear to be crying, and the stepmother did not notice anything out of the

ordinary.

       The jury found the appellant guilty of object sexual penetration of a child in violation of

Code § 18.2-67.2(A)(1) and taking indecent liberties with a child in violation of Code

§ 18.2-370(A)(1).6 The trial court imposed the jury’s sentence of a life term of imprisonment for

object sexual penetration of a child and one year for the indecent liberties offense, with the court

suspending that year.



       6
         The jury found the appellant not guilty of sodomy with a child and a second count of
object sexual penetration of a child.
                                               -5-
                                         II. ANALYSIS

       The appellant argues that the trial court erred in refusing to dismiss the charges or grant

him a new trial because the Commonwealth failed to meet its obligation under Brady v.

Maryland, 373 U.S. 83 (1963), to disclose material exculpatory evidence. He also contends that

the trial court erred in admitting the girl’s underwear and the related DNA analysis and

testimony into evidence.

                                         A. Brady Claims

       In reviewing the denial of a Brady motion, the trial court’s factual findings will not be

disturbed absent clear error. See Walker v. Kelly, 589 F.3d 127, 140 (4th Cir. 2009). In

contrast, we review the trial court’s legal conclusions de novo. See id.

       Under Brady, due process requires that the prosecution disclose evidence favorable to the

accused that is material to guilt or punishment. Commonwealth v. Tuma, 285 Va. 629, 634

(2013); see Robinson v. Commonwealth, 231 Va. 142, 150 (1986). However, Brady does not

provide a general right to discovery in criminal cases. Tuma, 285 Va. at 635.

       A Brady violation has three components. First, the prosecution must have suppressed the

evidence, either purposefully or inadvertently. Id. at 634. Second, the evidence at issue “must

be ‘favorable to the accused, either because it is exculpatory, or because it is impeaching.’” Id.

(quoting Skinner v. Switzer, 562 U.S. 521, 536 (2011)). Third, the evidence must be “material”

under Brady, meaning “there is a reasonable probability that, had the evidence been disclosed,

the result of the proceeding would have been different.” Id. at 634-35 (quoting Smith v. Cain,

565 U.S. 73, 75 (2012)); see also Massey v. Commonwealth, 67 Va. App. 108, 125 (2016)

(describing the third prong as whether the accused was prejudiced). “The accused has the burden

of establishing each of these three components to prevail on a Brady claim.” Mercer v.

Commonwealth, 66 Va. App. 139, 146 (2016) (quoting Tuma, 285 Va. at 635).

                                                -6-
       The appellant argues that the Commonwealth belatedly disclosed three types of evidence

in violation of Brady. First, he alleges that the Commonwealth failed to disclose before trial that

the victim could not identify the girl’s underwear as the pair she wore on the night of the

offenses or as hers. Second, he contends that the Commonwealth suppressed the victim’s “prior

inconsistent statements.” Third, he argues that the Commonwealth did not timely disclose that

the stepmother reported that the victim exhibited no “red flags” of sexual abuse on the night of

the incident. For the reasons that follow, we conclude that the appellant has failed to

demonstrate that his due process rights as set forth in Brady were violated.

                                1. Inability to Identify Underwear

       The appellant suggests that the victim’s inability to specifically identify the underwear

was exculpatory because it “related to the credibility and value of the DNA evidence.” He also

contends that it was exculpatory because it “undermined the admissibility of the underwear and

the DNA evidence.” Further, the appellant contends that this evidence was exculpatory because

it “challenged the credibility” of the investigation and if he had known about this problem, he

“would have conducted his own investigation into the lack of identification of the underwear.”

       We are unpersuaded that the facts that the victim could not remember wearing the

underwear in question on the night of the offenses or whether it belonged to her were somehow

favorable to the appellant. Other evidence in the record sufficiently established that she wore

them on the night of the offenses. The police detective found the underwear directly underneath

the shorts that the victim wore that night and described in detail. Viewing the record in the light

most favorable to the Commonwealth, the victim’s DNA was on the inside crotch of the

underwear. In addition, evidence established that the victim wore size eight underwear, the same

size as the underwear at issue. Although the appellant suggests on brief that he might have been

able to prove that the underwear belonged to the victim’s sister, she wore size four underwear.

                                               -7-
For these reasons, we hold that the victim’s inability to identify the underwear was not

exculpatory. See, e.g., United States v. Bartko, 728 F.3d 327, 338 (4th Cir. 2013) (“Evidence is

‘exculpatory’ and ‘favorable’ if it ‘may make the difference between conviction and acquittal’

had it been ‘disclosed and used effectively.’” (quoting United States v. Wilson, 624 F.3d 640,

661 (4th Cir. 2010))).

       Finally, the appellant suggests that the evidence was exculpatory because if known, he

would have changed his pre-trial and trial strategies. However, “the mere possibility that an

alternate trial strategy might [have] produce[d] a more beneficial result is not the proper test for a

Brady violation.”7 Mercer, 66 Va. App. at 149. Here, as in Mercer, the appellant’s theory that

the evidence would have provided the basis for different legal strategies before and during trial

does not provide a basis for a valid Brady claim. Id.

       For these reasons, the facts that the victim could not specifically identify the underwear

as hers or as the pair that she wore on the night of the offenses were not exculpatory.

Consequently, this evidence does not provide the basis for a valid challenge under Brady.8




       7
           The appellant also contends that the Commonwealth affirmatively represented before
trial that the victim had positively identified the underwear. To the extent that this argument
relates to the Brady prong that the evidence must be “favorable” to the accused, we briefly
address it. The appellant submits that the certificate of analysis contains the affirmative
representation that the victim identified the underwear as hers. This factual interpretation,
however, is undercut by the record. The certificate of analysis describes the underwear as
belonging to the victim. It does not provide how the underwear was identified as such and falls
far short of an affirmative representation that the victim identified it.
       8
         Because we find that the appellant failed to meet his burden to prove that the evidence
was favorable to him, we do not address the other two prongs of the Brady analysis. See, e.g.,
Tuma, 285 Va. at 635 (holding that the defendant’s Brady claim failed on one prong and
declining to conduct any further Brady analysis). For this reason, we also do not address the
Commonwealth’s discussion of the verdict being “worthy of confidence,” as this term relates to
the Brady component of materiality or prejudice. See Hicks v. Dir., Dep’t of Corr., 289 Va. 288,
299 (2015); Tuma, 285 Va. at 640 (Lemons, J., concurring).
                                               -8-
                           2. Inconsistencies in the Victim’s Statements

       The appellant maintains that the Commonwealth did not timely reveal the victim’s claims

that (1) the incidents included oral sex, (2) the appellant had threatened to sexually abuse her

sister, and (3) the appellant asked her for sex again the morning after the incident.

       “Brady is not violated, as a matter of law, when impeachment evidence is made

‘“available to [a] defendant[] during trial”’ if the defendant has ‘sufficient time to make use of

[it] at trial.’” Tuma, 285 Va. at 635 (alterations in original) (quoting Read v. Va. State Bar, 233

Va. 560, 564-65 (1987)). Further, “[t]he point in the trial when a disclosure is made . . . is not in

itself determinative of timeliness,” even if the witness in question has completed her testimony,

as “the trial itself [i]s far from over.” Id. at 636 (quoting United States v. Darwin, 757 F.2d

1193, 1201 (11th Cir. 1985)).

       The victim’s statements that the appellant characterizes as prior inconsistent statements

were disclosed to him either before or during trial.9 On the first day of trial, the victim testified

that the appellant had made her put her mouth on his penis and threatened her sister. The

appellant objected based on Brady. After discussion between counsel and the trial judge

regarding the Brady challenge, the appellant cross-examined the victim. He asked her about the

threats to her sister and highlighted that she had not reported that information earlier. In

addition, the appellant asked the victim why she had told the forensic interviewer that the

appellant had not done “something to any other part” of her body.

       On the second day of trial, the prosecutor reported that the victim had also mentioned that

the appellant asked her for sex on the morning after the sexual abuse. In light of the Brady


       9
          The Commonwealth disclosed some statements related to oral sex to the appellant
before trial. During pre-trial discovery, the Commonwealth provided the appellant with the
recorded statement of the victim that he had forced her to do “something” with her mouth to his
body. Similarly, the Commonwealth informed the appellant by email that the victim alleged that
he had touched her breasts and “butt” with his tongue.
                                                -9-
challenge, the court provided the appellant with the opportunity to cross-examine the victim

further regarding the purportedly inconsistent statements. The appellant did not exercise the

option to recall the victim. Nor did he request a recess or continuance to review his strategy in

light of that information. Thus, the appellant had the opportunity to make effective use of the

evidence of the statements at trial and chose not to do so. He also failed to request a recess or

continuance in order to consider whether his trial strategy should be altered in light of the

complete information. Consequently, no Brady violation occurred.10 See id. at 635-37.

                                 3. The Stepmother’s Observations

        The appellant’s last contention is that the Commonwealth committed a Brady violation

by its late disclosure of the stepmother’s report of the victim’s demeanor on the night of the

incident.

        Evidence is not suppressed for Brady purposes when the Commonwealth discloses it in

time for effective use by the defense at trial. See Tuma, 285 Va. at 637. The Commonwealth

disclosed the stepmother’s statement by email shortly before trial. In fact, the appellant called

the stepmother as a defense witness. She testified that she noticed nothing amiss when she

checked on the victim upon returning home from work at around midnight on November 2,

2015.

        The record shows that the Commonwealth disclosed this information before trial and that

the appellant made use of it. Thus, the Commonwealth did not suppress this evidence pursuant

to Brady.11 See, e.g., Lovitt v. True, 403 F.3d. 171, 184 (4th Cir. 2005); Tuma, 285 Va. at 637.

        In conclusion, the appellant has failed to establish a violation of his due process

protections set forth in Brady. The victim’s inability to identify the underwear was not favorable


        10
             See supra note 8.
        11
             See supra note 8.
                                                - 10 -
to the appellant. Further, the record does not demonstrate, for purposes of a Brady analysis, that

the Commonwealth suppressed the purportedly inconsistent statements made by the victim or the

stepmother’s report that she noticed nothing wrong on the night of the offenses. Accordingly,

the trial court did not err in denying the appellant’s motions to dismiss or for a new trial.12

                                   B. Admissibility of Evidence

       On appeal, this Court “reviews a trial court’s ruling admitting or excluding evidence for

abuse of discretion.” Payne v. Commonwealth, 292 Va. 855, 866 (2016). “This bell-shaped

curve of reasonability governing our appellate review rests on the venerable belief that the judge

closest to the contest is the judge best able to discern where the equities lie.” Du v.

Commonwealth, 292 Va. 555, 564 (2016) (quoting Sauder v. Ferguson, 289 Va. 449, 459

(2015)). A reviewing court can conclude that “an abuse of discretion has occurred” only in cases

in which “reasonable jurists could not differ” about the correct result. Commonwealth v. Swann,

290 Va. 194, 197 (2015) (quoting Grattan v. Commonwealth, 278 Va. 602, 620 (2009)). “[B]y

definition,” however, a trial court “abuses its discretion when it makes an error of law.”

Robinson v. Commonwealth, 68 Va. App. 602, 606 (2018) (quoting Dean v. Commonwealth, 61

Va. App. 209, 213 (2012)).

       “The proponent of the evidence bears the burden of establishing . . . the facts necessary to

support its admissibility.” Perry v. Commonwealth, 61 Va. App. 502, 509 (2013) (quoting Bell

v. Commonwealth, 49 Va. App. 570, 576 (2007)). “The measure of the burden of proof with

respect to factual questions underlying the admissibility of evidence is proof by a preponderance



       12
           In light of the conclusion that no Brady violation occurred, we do not address the
appellant’s contention that dismissal or a new trial were the only appropriate avenues for relief.
See generally Novak v. Commonwealth, 20 Va. App. 373, 389 (1995) (“The remedial relief to be
granted by the trial court following a discovery violation or upon the late disclosure of evidence
is within the trial court’s discretion and will not be disturbed on appeal unless plainly wrong.”
(quoting Moreno v. Commonwealth, 10 Va. App. 408, 420 (1990))).
                                                 - 11 -
of the evidence.” Atkins v. Commonwealth, 68 Va. App. 1, 9 (2017) (quoting Bloom v.

Commonwealth, 262 Va. 814, 821 (2001)). Once this threshold for proving admissibility has

been met, any gaps in the evidence are relevant to the trier of fact’s assessment of its weight

rather than its admissibility. See Kettler & Scott, Inc. v. Earth Tech. Cos., 248 Va. 450, 459

(1994).

          The appellant suggests that the pair of girl’s underwear and related DNA evidence were

irrelevant because the circumstances did not connect the underwear to the offenses charged. He

also argues that the Commonwealth provided “no foundation” that the victim wore that pair of

underwear “on the night of the alleged assault.” On these bases he argues that the evidence

should not have been admitted. We disagree.

                                              1. Relevance

          Evidence relating to a point properly at issue in a case is relevant and, therefore,

admissible if it has “any logical tendency, however slight,” to establish that point. Ragland v.

Commonwealth, 16 Va. App. 913, 918 (1993). ‘“Relevant evidence’ means evidence having any

tendency to make the existence of any fact in issue more probable or less probable than it would

be without the evidence.” Va. R. Evid. 2:401. “The scope of relevant evidence in Virginia is

quite broad, as ‘[e]very fact, however remote or insignificant, that tends to establish the

probability or improbability of a fact in issue is relevant.’” Commonwealth v. Proffitt, 292 Va.

626, 634 (2016) (alteration in original) (quoting Va. Elec. & Power Co. v. Dungee, 258 Va. 235,

260 (1999)). In order to be admissible as relevant, evidence must “tend[] to prove a matter that

is properly at issue in the case.” Id. at 635 (alteration in original) (quoting Brugh v. Jones, 265

Va. 136, 139 (2003)).

          The pair of girl’s underwear was found in the appellant’s home less than two days after

the occurrence of the sex offenses for which the appellant was charged. The underwear was the

                                                  - 12 -
victim’s size and directly beneath shorts that matched the victim’s description of those that she

wore on the night of the crimes. A mixture of genetic material to which both the appellant and

the victim contributed was found on the crotch of the underwear. These facts and circumstances

tended to prove that the victim wore the underwear on the night of the offenses and the

appellant’s DNA was transferred to her body. Thus, the underwear, and the related DNA

analysis, constituted relevant evidence to corroborate the victim’s testimony that the appellant

sexually assaulted her, and they were admissible for that purpose.

                                           2. Foundation

       “A proper foundation must be laid for the introduction of all evidence.” Sabo v.

Commonwealth, 38 Va. App. 63, 79 (2002) (quoting Horsley v. Commonwealth, 2 Va. App.

335, 338 (1986)). The burden is on the party offering the evidence, in this case the

Commonwealth, “to show with reasonable certainty that there has been no alteration or

substitution of it.” Id. (quoting Horsley, 2 Va. App. at 338).

       Viewing the entire record, the Commonwealth presented evidence sufficient to establish

an adequate foundation for this evidence to be admitted. Detective Jones collected the

underwear less than two days after the offenses occurred. He found it in the laundry pile with

the victim’s other clothing that she wore on the night of the assaults. In addition, the pair of

underwear was the victim’s size, and the only other child in the house was the victim’s sister,

who wore underwear four sizes smaller. Further, viewing the evidence in the light most

favorable to the Commonwealth, the victim’s DNA was found on the inside crotch of the

underwear. The appellant challenges the factual inference that the underwear in fact belonged to

the victim or that she wore it on the night of the assaults based on the possibility that the DNA

was transferred to the underwear from other clothing in the laundry pile. However, the

Commonwealth met its burden of proving by a preponderance of the evidence that the underwear

                                                - 13 -
belonged to the victim and was worn by her on the night of the assaults. See Bloom, 262 Va. at

821. Since “this threshold for proving admissibility” was met, the appellant’s challenges to the

probative value of the underwear and related DNA evidence goes to the trier of fact’s assessment

of weight rather than admissibility. See Kettler, 248 Va. at 459.

       For these reasons, the trial court acted properly within its discretion by admitting the

underwear and the DNA test results of the genetic material collected from the underwear into

evidence.

                                          III. CONCLUSION

       We hold that the alleged late disclosures of evidence did not violate the requirements of

Brady. Further, the trial court did not err in admitting the underwear and related DNA evidence.

Accordingly, we affirm the appellant’s convictions for object sexual penetration of a child and

taking indecent liberties with a child.

                                                                                          Affirmed.




                                               - 14 -
