Jeffrey Dean Bondi v. Commonwealth of Virginia
70 Va. App. 79, 824 S.E.2d 512 (2019)
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Rule of Law:
In object sexual penetration cases, 'force' and 'intimidation' can be established not only by overt physical violence but also by demonstrating psychological pressure, emotional dominance, and the victim's resulting fear or inability to resist, considering the totality of circumstances and relationship dynamics. A motion for a new trial based on after-discovered evidence requires strict proof of materiality, meaning the new evidence must be significant enough to likely produce an opposite result at a new trial.
Facts:
- M.V., who was thirty-four at the time of trial, met Jeffrey Dean Bondi, a youth minister at her church, in high school and considered him a mentor and "fatherly figure."
- In October 2001, during M.V.'s first semester of college, Bondi asked her to return to Virginia Beach to babysit his children for a weekend.
- When Bondi returned home while M.V. was babysitting, he lay down next to her on the sofa, put his hand under her shirt, then pulled her down so she was lying in front of him.
- Bondi subsequently put his hand under M.V.'s bra, touched her breasts, unzipped her pants, touched her underwear, and digitally penetrated her vagina once, causing pain and leaving M.V. "completely frozen and in shock."
- After about an hour, M.V. attempted to leave by sliding out from under Bondi's arm, but he grabbed her arm, pulled her back, and, in an aggressive and insistent tone, told her to stay.
- Bondi continued to touch M.V.'s breasts and digitally penetrated her vagina again, then rolled on top of her and kissed her neck and mouth while M.V. lay "completely paralyzed."
- M.V. expressed discomfort, and Bondi told her she needed to leave, walking her to her car while apologizing, but M.V. felt "shaken" and "scared" afterward.
- In 2010, after seeing a photo of Bondi accompanying youth on a church trip, M.V. disclosed the complete details of the October 2001 incident, including digital penetration, to friends and church supervisors.
Procedural Posture:
- A grand jury indicted Jeffrey Dean Bondi for object sexual penetration, in violation of Code § 18.2-67.2(A)(2).
- The Commonwealth tried Bondi for the offense in June 2017 in the Circuit Court of the City of Virginia Beach in a bench trial.
- The Circuit Court found Bondi guilty of object sexual penetration.
- Following the verdict, the Circuit Court ordered a pre-sentence report and conducted a sentencing hearing on October 10, 2017.
- Following sentencing, Bondi filed a motion in the Circuit Court to set aside the verdict and grant a new trial based on after-discovered evidence.
- The Circuit Court denied Bondi's motion to set aside the verdict.
- Bondi (appellant) appealed his conviction and the denial of his motion to the Court of Appeals of Virginia.
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Issue:
1. Does evidence of a significant power imbalance, emotional dominance, and a victim's frozen state and pain, combined with the defendant physically preventing the victim from leaving, constitute 'force' or 'intimidation' for object sexual penetration under Code § 18.2-67.2(A)(2)? 2. Did the trial court err in denying a motion for a new trial based on after-discovered evidence when the evidence, which related to the complaining witness's therapy, was deemed immaterial because her memory of the critical events predated the therapy?
Opinions:
Majority - Judge Mary Grace O’Brien
Yes, the evidence was sufficient to prove that Jeffrey Dean Bondi committed object sexual penetration by force and intimidation, and no, the trial court did not err in denying the motion for a new trial based on after-discovered evidence. The court affirmed that 'force' in object sexual penetration requires proof that the defendant's actions were sufficient to accomplish the act and overcome the victim's will, considering the specific circumstances, relative physical condition, and degree of force manifested. Here, Bondi grabbed M.V.'s arm to prevent her from leaving and pulled her back onto the sofa, which was more force than merely that inherent in the act itself. M.V.'s testimony that she was 'completely paralyzed' and 'frozen in shock' during the assault, experienced considerable pain, and remained fearful after the incident further supported the finding of force. The court also found sufficient evidence of 'intimidation,' which involves putting a victim in fear of bodily harm by exercising such domination and control as to overcome their mind and overbear their will, potentially through psychological pressure on a vulnerable individual. M.V.'s relationship with Bondi as a mentor and 'father figure,' her modesty and sexual inexperience as a teenager, her 'completely frozen and in shock' state, Bondi's aggressive and insistent tone when he prevented her from leaving, and her subsequent fear and pain demonstrated that Bondi exercised emotional dominance over her. The court concluded that Bondi's actions overcame M.V.'s mind and will by placing her in fear of bodily harm, as supported by precedents like Sutton v. Commonwealth and Bower v. Commonwealth. Regarding the motion for a new trial based on after-discovered evidence concerning M.V.'s EMDR therapy, the court found Bondi failed to meet the materiality requirement. While Bondi argued that M.V.'s testimony of penetration was a 'recovered memory' from therapy that he couldn't challenge at trial, the record showed M.V. had disclosed the specific detail of digital penetration to a friend in 2010, six years before her EMDR therapy in 2016. Therefore, the EMDR therapy was not material to M.V.'s recollection of the specific events of the crime and would not have produced a different result at a new trial, consistent with Odum v. Commonwealth.
Analysis:
This case significantly clarifies the interpretation of 'force' and 'intimidation' in sexual assault cases, moving beyond overt physical violence to include psychological pressure, power imbalances, and a victim's subjective experience of paralysis or fear. It establishes that the contextual factors, such as the victim-perpetrator relationship and the victim's vulnerability, are crucial in determining if a sexual act was committed against the victim's will. Furthermore, the case reinforces the stringent requirements for granting new trials based on after-discovered evidence, emphasizing the high burden on the movant to prove that the new evidence is truly material and would likely alter the outcome of the trial, particularly when challenging the credibility of a key witness through memory-related claims.
