subject: Virginia Sexual Molestation Juvenile Fairfax Prince William [print this page] Virginia Sexual Molestation Juvenile Fairfax Prince William
Katz v. Commonwealth, 2010 Va. App. LEXIS 100 (Va. Ct. App. Mar. 16, 2010)
Fatual Background:
Defendant was convicted for three counts of sexual molestation of his grandson, a juvenile. At Defendant's trail, Smith, a licensed professional counselor, who was the therapist of the grandson, who implicated the defendant to the present charges, testified that the victim has also indicated while in therapy that "there had been sexual interactions between grandson and his older brother [An. K.]," consisting of anal and oral sodomy. Some of those interactions between him and An. K, Smith further explained, coincided with the time frame during which defendant was sexually molesting his grandson.
Defendant argued that substance of this testimony constituted exculpatory information that the Commonwealth failed to provide to him prior to trial, in violation of Brady.
Court of Appeals View:
The court agreed with the trial court that evidence that grandson was allegedly the victim of more than one known sexual molester during the same general time frame was not exculpatory as to defendant. Significantly, defendant did not present a defense of mistaken identity. Instead, defendant was one of two identified molesters acting independently in separate instances. Thus, evidence about victim's brother, the second identified molester, has no bearing on the guilt or innocence of defendant--any more than evidence that a victim had been robbed by one known assailant would have any bearing on the guilt or innocence of a different assailant whom the victim identified in a separate robbery. In short, the fact victim may have been molested by his brother did nothing to exculpate defendant from charges of similar conduct.
Nor did victim's allegations of sexual molestation by his brother present defendant with impeaching evidence. For purposes of demonstrating the impeachment value of the subject evidence, defendant does not point to any place in the record where victim asserted that only defendant molested him, or where defendant denied that his brother had also molested him. Indeed, when asked about his brother on cross-examination at defendant's trial, victim stated unequivocally that both his brother and defendant had sexually molested him.
For the above stated reasons, the court affirmed the defendant's convictions, stating he failed to demonstrate Brady violation.
