COURT OF APPEALS OF VIRGINIA

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

ROBERT RYAN GRASTY MEMORANDUM OPINION * BY v. Record No. 0423

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- 2 JUDGE GLEN A. HUFF MARCH 28, 2023 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF SURRY COUNTY

W. Allan Sharrett, Judge Ashby Leigh Pope (Riddick & Pope, on brief), for appellant. Timothy J. Huffstutter, Assistant Attorney General ( Jason S. Miyares, Attorney General, on brief), for appellee.

Robert Ryan Grasty (“appellant”) was convicted of aggravated sexual battery and object sexual penetration of a child under the age of 13 years by a person at least 18 years old

. T he trial court imposed life imprisonment on the object sexual penetration conviction and 15 years of suspended incarceratio n with a suspended fine of $50,000 on the aggravated sexual battery
conviction. On appeal, appellant first argues that the evidence failed to prove he was at least 18 years old at the time of the offenses. Next , he contends that the trial court should ha ve awarded him
a new trial because “the jury did not understand the punishments required for the crimes” because they failed “to comprehend the instructions given” and his trial counsel failed “to properly voir dire the jurors on the prospective range of p unishments

. ” Finally, he asserts that the trial court erroneously denied his motion for a new trial “based on the improper joinder of the offenses.” For the following reasons, the trial court’s judgment is affirmed.

* T his opinion is not designated for publication

. See Code § 17.1

- 413. UNPUBLISHED- 2

- BACKGROUND On appeal, this Court views the evidence “in the ‘light most favorable’ to the Commonwealth, the prevailing party in the trial court.” Hammer v. Commonwealth , 74 Va. App. 225, 231 (2022) (quoting Commonwealth v. Cady , 300 Va. 325, 329 (2021)). And in d oing so , this Court “dis card [s] the evidence of the accused in conflict with that of the Commonwealth, and regard [s] as true all the credible evidence favorable to the Commonwealth and all fair
inferences to be drawn therefrom.” Cady , 300 Va. at 329 (quoting Commonwealth v. Perk ins , 295 Va. 323, 324 (2018)). In April or May 2017, Johnnie Tynes worked as a commercial fisherman a nd was constructing a new house for his family, including his two daughters: seven
- year
- old L.T. and
nine

- year
- old A.T. One day , Tynes asked his coworker and close friend of 14 years , appellant , to “watch the girls” while he left to “ sign paperwork ” concerning the construction

. At trial, Tynes testified that he had considered appellant “an older brother” and previously “trusted this
man” to supervise his children.
While alone with A.T. and L.T. , appellant sat between them on a couch and offered them
alcohol. Appellant then reach ed underneath A.T.’s clothes and touch ed her breasts and the “inside” of her vagina

. At tria l, A.T. testified that she saw him do the same to L.T., although she
could not recall whether he had reached underneath L.T.’s clothing ; L.T. , who also testified , did
not remember the details of the incident. When Tynes returned home, he noticed that the lights
were off , and appellant departed hurriedly , which was unusual

. A.T. and L.T. later disclosed the
sexual abuse to their father , who reported it to police. During an ensuing investigation, A.T. and
L.T. described the incident again to a forensic int erviewer. Appellant was indicted for aggravated sexual battery of L.T. and aggravated sexual battery and object sexual penetration of A.T. while being at least 18 years of age. During voir- 3

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dire at appellant ’s jury trial, defense counsel did not advise or question the venire concerning the potential range of punishment for each offense , including that the object sexual penetration charge carried a mandatory minimum life sentence

. 1 At trial, appellant denied having committed any of the charged offenses. H e testified that Tynes had not asked him to supervise A.T. and
L.T. He claimed instead that he had accompanied Tynes to sign the paperwork and had not been
alone with the children or touched them “ inappropriately. ” At the conclusion of the evidence, the trial court instructed the jury, without objection,
that “[t]he physical appearance of [ appellant ] can be sufficient evidence alone to determine that he is over 18 years of age.” After receiving the jury instructions and considering argument by counsel, t he jury convicted appellant of aggravated sexual battery and object sexual penetration of A.T. by a person at least 18 years of age. 2 During sentencing deliberations, the jury asked whether it was required to impose life imprisonment for the object sexual penetration conviction. The trial court , without objection, instructed the jury to refer to the jury instructions regarding sentencing. 3 The jury subsequently
recommended a sentence of life imprisonment for the ob ject sexual penetration conviction and
15 years in prison with a $50,000 fine for the aggravated sexual battery conviction

. On the sentencing verdict form, the foreperson expressly noted that the jury recommended life imprisonment on the object sexual pen etration charge, “per the instruction.”

1 Before trial, the General Assembly enacted Code § 19.2

- 262.01, which permits examination of prospective jurors regarding the “ potential range of punishment to ascertain if the person or juror can sit impartially in the sentencing phase of the case. ” See 2020 Va. Acts c hs

. 157 , 588. During a hearing on appellant ’s subsequent motion for new trial, t he trial court found that it had allowed the parties to examine the venire about the applicable penalties for each offense during voir dire , but neither d id so.

2 The jury acquitted appellant of aggravated sexual battery of L.T.

3 The trial court had instructed the jury that “upon consideration of all the evidence you have h eard, you shall fix the defendant’s punishment at confinement in the penitentiary for life. ”- 4

-

Following the jury’s verdict, appellant moved the trial court to set aside his object sexual penetration conviction because the evidence failed to prove that he was at least 18 years old during the offenses

. Appellant also moved the trial court to grant him a new trial because (1) the jury had “fail[ed] to comprehend” the sentencing instructions , ( 2 ) he had not been “afforded [ his ] statutory right to inform the potential jury o f the mandatory life sentence , ” and ( 3 ) the offenses
invo lv ing L.T. and A.T. were improperly joined into a single trial. A t a hearing on the motions, appellant conceded that it may have been his trial counsel’s deliberate “strategy ” not to inform
the veni re of the potential penalties for each offense. After further argument, the trial court denied the motions for a new trial. I t found that the jury could rely on appellant ’s physical appearance to ascertain his age at the time of the offenses based on the uncontested jury instruction directing it to do so. Continuing , the trial court added
that appellant ’s “ gait ,” “tone of voice ,” hair

— “in both its color and its presence on his head”

— and “all manners of his appearance could only lead a reasona ble person to conclude that he was over the age of 18 years.” Regarding voir dire , the trial court found that it had permitted appellant to examine the prospective jurors about the applicable penalties for each offense, but
he had failed to exercise his s tatutory right to do so

. Finally, concerning the alleged misjoinder,
the trial court found that appellant had not move d to sever the charges before trial and the Commonwealth demonstrated a common scheme or plan justifying the joinder

. This appeal
follow ed.- 5

- ANALYSIS
I. Sufficiency Appellant first contends that the evidence failed to prove he was at least 18 years old at the
time of the offenses

. 4 He asserts that other than the jury instruction permitting the jury to judge his age by his appearance, “ there is no record of what the jury found or did not find regarding [ his ]
age .” Therefore, appellant “ posits that it is plainly wrong for his conviction to stand whe n the
record is silent as to how

. . . the jury [concluded] that he was over the age of 18 at the time of the
offense. ” This Court disagree s
. “When reviewing the sufficiency of the evidence, ‘[t]he judgment of the trial court is presumed correct and will not be disturbed unless it is plainly wrong or without evidence to support it.’” McGowan v. Commonwealth , 72 Va. App. 513, 521 (2020) (alteration in original) (quoting Smith v. Commonwealth , 296 Va. 450, 460 (2018)). “In such cases, ‘[t]he Court does

not ask itself whether it believes that the evidence at the trial established guilt beyond a
reasonable doubt.’” Id. (alteration in original) (quoting Secret v. Commonwealth , 296 Va. 204, 228 (2018)). “Rather, the relevant question is whether ‘ any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” Vasquez v.
Commonwealth , 291 Va. 232, 248 (2016) (quoting Williams v. Commonwealth , 278 Va. 190, 193 (2009)). “If there is evidentiary support for the convict ion, ‘the reviewing court is not permitted to substitute its own judgment, even if its opinion might differ from the conclusions reached by
the finder of fact at the trial.’” McGowan , 72 Va. App. at 521 (quoting Chavez v.
Commonwealth , 69 Va. App. 149, 16 1 (2018)).

4 In the indictments for both charges relating to A.T., the Commonwealth added the following descriptive language following appellant ’s name: “who [wa] s 18 years o f age or older.” However, o nly in the jury instruction for object sexual penetration of A.T. (No. 11) was th at same language included as a third element for the jury to determine before finding appellant guilty.- 6

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“It is well settled that instructions given without objection become the law of the case and thereby bind the parties in the trial court and this Court on review.” Spell v. Commonwealth , 72
Va. App. 629, 635 (2020) (quoting Bryant v. Commonwealth , 295 Va. 302, 307 (2018) )

. Here , t he trial court instructed the jury that “[t]he physical appearance of the Defendant can be
sufficient evidence alone to determine that he is over 18 years of a ge. ” This instruction is
consistent with this Court’s holdings that a defendant’s physical appearance alone is sufficient to prove age as an element of an offense if the “ defendant’s physical appearance indicates an age well above that required to be prov en and the trial court determines that the fact finder is able to conclude beyond a reasonable doubt from the defendant ’ s physical appearance that he exceeds ” the requisite age. Jewell v. Commonwealth , 8 Va. App. 353, 356 (1989) ; accord Stith v.
Commonwea lth , 65 Va. App. 27, 33 (2015) (observing that physical appearance alone is sufficient to prove age “ where it is obvious from the defendant ’ s appearance that he or she meets or exceeds the statutory age ” ). 5 At trial, Tynes testified that he had considered appellant “an older brother” and previously “trusted this man ” to supervise his children

. (Emphasis added). Appellant himself testified that he had been friends with Tynes for approximately 14 years. From that evi dence
combined with the opportunity to watch and listen to Tynes and appellant testify and compare their relative ages , the jury could infer that appellant was an adult when he committed the crimes. In fact, the trial court stated it did no t “believe a re asonable juror could conclude that [ appellant ] was under the age of 18.” To the contrary, it found that appellant ’s physical appearance

—

5 Moreover, “ [t] his jury instruction was uncontested and thus, at a minimum, is the law of the case.” Wagoner v. Commonwealth , 63 Va. App. 229, 248 (2014), aff ’ d , 289 Va. 476 (2015).- 7

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including his hair, gait, and tone of voice

— “could only lead a reasonable person to conclude that
he was over the age of 18 years.” 6
Given that the jury could judge appellant’s age by his appearance , the evidence suggesting that appellant was an adult, and the trial court’s finding that the “only” conclusion the jury could reach based on his appearance was that he wa s older than 18 , appellant has not
established that the evidence was insufficient to prove his age at the time of the offenses. See
Stith , 65 Va. App. at 34 ( holding evidence proved defendant’s age exceeded statutory age where the trial court expressly fo und that his weight, “above average stature,” and “mannerisms” suggested that he was an adult)

. 7 Accordingly, this Court cannot conclude that the trial court’s ruling was plainly wrong or without evidentiary support.
II. Voir Dire and Sentencing Appellant next contends that the trial court erred in denying his motion for a new trial because “the jury did not understand the punishments required for the crimes

. ” C iting the jury’s question during sentencing deliberations, appellant contends that the jury “fail [ ed ] to comprehend” the sentencing instructions

. This Court appl ies an abuse of discretion standard of

6 Although the jury did not receive direct evidence of appellant’s age, t his Court notes that multiple documents in the record show appellant was born in 1954 , which means he was over 60 years old at the time of the offenses.

7 At argument counsel conceded the sufficiency of the evidence to establish that appellant was at least 18 years of a ge at the time of the offense s . Additionally , counsel candidly acknowledged that no motion for severance had been made pre

- trial, nor had counsel attempted to inform the jury during voir dire of the mandatory life sentence as may have been appellant’s rig ht pursuant to Code § 19.2

- 262.01. This Court commends counsel for exercising the ethical duties of candor expected of advocates appearing in this Court. See, e.g. , Stephens v. Commonwealth , 274 Va. 157, 161 (2007); Va. R. of Prof’l Conduct 3.3 (“Candor T oward the Tribunal”).- 8

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review to the trial court ’ s denial of a motion for a new trial. Avent v. Commonwealth , 279 Va. 175, 204 (2010)

. 8
The record belies appellant ’s contention that the jury did not understand or failed to follow the sentencing instructions. During sentencing deliberations, the jury asked the trial court
to cl arify whether it was required to impose life imprisonment for the object sexual penetration
conviction. The trial court instructed the jury to refer to the applicable sentencing instruction, which required the jury to “ fix the defendant’s punishment at co nfinement in the penitentiary for
life.” Consistent with the trial court’s guidance , the jury returned a verdict recommending life imprisonment “per the instruction.” Thus, this Court find s no basis in the record for appellant ’s claim that the jury did not comprehend or adhere to its instructions. Rather, the record demonstrates that the jury understood the instructions and imposed the only sentence permissible
under the law. Accordingly, the trial court did not abuse its discretion in denying appe llant ’s
motion for a new trial.

8 Appellant also argues that his trial “counsel’s failure to properly voir dire the jurors on the prospective range of punishments” for each offense deprived him of his right to do so under Code § 19.2

- 262.01. To the extent that argument asserts that appellant received ineffective assistance of counsel, it is not cognizable on direc t appeal. Lenz v. Commonwealth , 261 Va. 451, 460 (2001) (citing Johnson v. Commonwealth , 259 Va. 654, 675 (2000)). Moreover, any argument that the trial court erred is waived. “ Under the ‘ invited error ’ doctrine [a defendant] may not benefit from his cou nsel ’ s voluntary, strategic choice to place [the defendant] at a potential disadvantage in the hope, unproductive though it was, of gaining some advantage. ” Powell v. Commonwealth , 267 Va. 107, 144 (2004) . The record demonstrates that although the trial court did not prohibit him from questioning prospective jurors regarding punishment during voir dire , appellant ’s trial counsel did not exercise his statutory right to do so. Furthermore, appellant conceded during argument on his motion for a new trial th at his trial counsel may have strategically chosen not to inform the venire of the potential penalties during voir dire . Thus, appellant cannot now attempt to benefit from “ the situation created by his own wrong.” Nelson v. Commonwealth , 71 Va. App. 397, 404 (2020) (quoting Cangiano v. LSH Bldg. Co. , 271 Va. 171, 18 1 (2006) ).- 9

- III. Joinder Finally , appellant argues that he was entitled to a new trial because the trial court had improperly joined the offenses involving L.T. and A.T. “ [A] motion for separate trials must be made before trial beg ins or it is deemed waived.” Colclasure v. Commonwealth , 10 Va. App. 200, 202 (1990)

. Appellant did not move to sever the charges before trial ; instead, he moved for a new trial after the jury’s verdict. Consequently, the issue is waived , and the trial court did not err by refusing to grant a new trial on that basis.
CONCLUSION For the foregoing reasons, this Court affirm s the trial court’s judgment. Affirmed

.