Report From Counsel - December 2, 2013
UPDATED - January 23, 2015
SALEM, VA LOCKSMITH ACQUITTED OF ALL CHILD SEXUAL ABUSE CHARGES
Read news coverage from the Roanoke Times on the original charges and the final case results.
Read coverage of the case from Virginia Lawyers Weekly.
Background
In July 2012, a 41 year old Salem locksmith, Robert Marshall Hickson, Sr., was charged by indictment with one count of Animate (Digital) Anal Penetration involving one of two nieces and five counts of Aggravated Sexual Battery involving one of his daughters and two nieces. All accusers were under 18 years of age. The Virginia Department of Criminal Justice Services immediately revoked his locksmith’s license. Based on the alleged ages of the accusers, he faced a maximum possible punishment of life plus 100 years. Sixteen months later, after a three day jury trial and seven and a half hours of jury deliberation, at approximately 9:00 p.m. on Friday, November 15, 2013, a jury of seven men and five women found him Not Guilty on all counts. There were several notable features about this case.
Four of the indictments broadly alleged the crimes were committed over approximately four year periods, while the two involving his daughter alleged specific dates in July 2012. Two indictments charged Aggravated Sexual Abuse of a Child Less Than 13 Years of Age. One charged Sexual Abuse of a Child of At Least 13 Years of Age But Less Than 15 Years of Age. Due to the chronologically vague nature of the crimes broadly alleged to have occurred over four years, the defense sought to pin down the alleged crimes described by the accusers to specific events and time frames in the lives of the defendant, accusers and witnesses. The defense sought to isolate the events with specificity from the vague indictments as a foundation for a specific defenses and then to prove that Hickson could not have perpetrated the crimes alleged to have occurred at the time of these specific life events. The defense hoped to argue that if one could not believe abuse had occurred at the time of a specific event as identified by an accuser during her testimony, then how could one believe any accusations from the accusers that any abuse occurred at all?
Broad Allegations Narrowed Down To Specific Events
The defense benefitted from the fact that it not only had the initial statements of the accusers given to the police, but also that the cases had originated on warrants and that a preliminary hearing held in the Juvenile and Domestic Relations District Court. The defense, of course, had a court reporter present during that hearing, it had the court reporter sworn by the Judge, and had that transcript prepared for use at trial. During trial, there were a number of inconsistent statements made by the accusers when compared to both the preliminary hearing transcript and their initial statements to the police. During the preliminary hearing, the defense was able to pin down the specific allegations of sexual abuse as having occurred during specific events with specific details of those events, with the accusers asserting the vents were precisely why they could remember the abuse incident.
One such event was a day when the defendant supposedly abused a niece while she was in a bunk bed with two other younger children of the Defendant’s girlfriend in his basement apartment in his parents’ home and at a time when the defendant’s girlfriend had supposedly left the premises with the defendant’s daughter. However, the defense was able to prove that on that particular day, which was the morning after the only night ever when that niece spent the night downstairs, he actually was on a weekend camping trip with friends (who all testified) approximately 45 miles away. Furthermore, although his girlfriend had left the premises that morning with all of her children and the defendant’s daughter to go clean an apartment she had recently rented under a lease, which cleaning was part of a free first month’s rental payment, she had sent the niece upstairs to the defendant’s parents because she did not have room in her vehicle to transport all of the children. The grandparents testified they specifically recalled these details and the child coming upstairs that morning, and they affirmed that had been the only night ever that said niece spent the night downstairs.
Another occasion of alleged abuse (the animate penetration charge) supposedly occurred on a Friday in 2009 in the defendant’s basement apartment. However, at this time the defendant’s girlfriend was with his children downstairs in the apartment and was making a t-shirt that contained the hand prints of all of his children, which was to be a surprise for the defendant the following Father’s Day (Sunday). The defense produced work records in the form of invoices and payments showing that the defendant had been on “lock calls” all that day, which was supported by his girlfriend testifying that he was not present during the making of the t-shirt because, after all, it was a surprise. The girlfriend remembered the niece coming downstairs, staying only a few minutes, and returning upstairs. The defendant’s mother remembered the niece coming back upstairs and asking the niece why she did not stay down there any longer than she did, to which the niece replied that there was not enough room for her down there due to everyone else being down there. The defense was fortunate in that the defendant’s girlfriend had found the t-shirt in storage and so she and the defendant were able to display the shirt to the jury with all of the children’s hand prints, including those of the accusing daughter, and with “09” centered on the front.
One more occasion of note when abuse allegedly occurred on that same niece in her upstairs bedroom, where she often stayed with the defendant’s parents, was in 2011. Here, the defense showed that the defendant did not have a key to any of the doors leading to that part of the house, which were consistently locked, and that although he was a locksmith, he could not have gained access to keys for that part of the house because they had Medco locks and so would not have been able to get keys made due to Medco technologies, policies, and procedures. The defendant’s father testified that he had put Medco locks on all of his doors years ago when a State Trooper was killed nearby on Interstate 81 and the killers broke into the home behind his, killing the husband of that family and abducting and later killing the wife. He testified that, as was his custom, he checked all the door locks before he left for a doctor’s appointment that morning at the VA in Salem (he had his appointment schedule and VA records at trial) and he further testified that his son had not had a key to the upstairs portion of the house since approximately 2005, when the locks were re-keyed, because the defendant’s daughter (who was an accuser in this case) would steal things and lie about it and they did not want her to have access to a key through her father when she visited him in his basement apartment. Supposedly, according to the niece, when she woke up in her bed Hickson was in bed with her and abuse her and after Hickson had molested this niece on this occasion, she then rode with him to a shopping mall in Christiansburg for a “lock call”, rode with him to visit an uncle in Christiansburg (she gave conflicting testimony about even being at that visit, but the uncle’s girlfriend testified she recalled the visit and noted the niece acted normal), and then rode with him to a store near her friend’s home in Floyd County to go on a pre-planned trip with the friend, which she also denied was pre-planned. It was shown at trial by the defense that she could have driven her own car, which she owned, used, and which was present at the Hickson home on that very date. When asked on cross at trial why she would ride with Hickson on this trip immediately after he abused her she stated: “I just wanted to get out of there”, to which defense counsel retorted, “Why didn’t you just drive your own car when something so terrible had just happened to you?”
There were numerous other discrepancies as to the defendant’s opportunity to have done specific acts alleged for specific time periods and specific events. The defense produced evidence and testimony with specificity to combat each allegation as was done in the preceding three example instances. If other evidence was not available, the defense produced “lock call” records to cast doubt on the various stories given.
Accuser Motivation
The defense also put on evidence for possible motivation on the parts of the accusers, one of which was the elder niece consistently wanting the defendant to move out of his basement apartment so she and her friend could move into it, and another being the hatred of the daughter for her father after he confronted her boyfriend and her lying about her sneaking over to the boyfriend’s house whenever she visited her father, which resulted in the defendant barring the boyfriend from his home. The father and the daughter had an intense argument on July 5, 2012 after defendant got home from work because he forbade the boyfriend from picking his daughter up, the very day that the accusers first reported allegations of abuse to the defendant’s parents upstairs. Testimony revealed that she had stated to him “I hate you, this isn’t fair”. Both of the defendant’s parents testified at trial that when the girls were making their reports to them, they were laughing, smiling, and texting, causing both grandparents to think the reports must have been some sort of joke. Seven days later when one of the niece’s sister learned of the allegations, all of the accusers’ mothers were informed, and the police were called, thus beginning the legal momentum against the defendant that was not stopped until trial and the ultimate verdict.
The defense was able to get this accusing daughter of the defendant to admit on cross examination that she was “a liar and a thief”, that she “hated” her father, and that the issues with the boyfriend was part of what lead her to report the allegations to her grandparents. When this witness testified on rebuttal, the defense had a Facebook posting made made the first day of trial which stated: “Two more days until I put him in jail”, which posting was put into evidence and used on cross. The jury became wide-eyed on that evidence being presented.
Sexual Abuse Prevalence and Jury Selection
An interesting aspect of the case was a pre-trial motion filed by the defense asking the Court for individual voire dire or at least three person voire dire. The defense produced a scholarly article analyzing a Los Angeles Times national survey which found that 26% of women and 19% of men had been sexually abused or had been the victim of some sort of sexual misconduct. The Court granted 3 person voire dire. During voire dire, 20% of the women in the first 30 jurors called expressed an inability to dispassionately serve because of their own personal history with sexual abuse or misconduct.
The defense was consistently concerned about tainting jurors against the defense during voire dire by asking “personal questions” about their, their families, and their friends’ histories as to sexual abuse and misconduct. The defense attempted to resolve this issue by advising each set of three jurors that personal questions had to be asked of them by defense counsel to gauge their fairness and fitness to hear the case because the prosecution had asked that a jury be impaneled to hear the case. Defense counsel believes this took the edge off the defense having to ask such questions and put the onus on the prosecution.
Jury Deliberation
During their deliberations, the jury sent out questions on three different occasions, approximately two hours apart each. The first set of questions asked for the specific dates of birth of each accuser. Defense counsel suspected throughout the case that the ages of the alleged victims at the times of the alleged specific crimes did not fit the age ranges specified in the indictments, which events the defense was able to pin down to specific dates. With the alleged victims’ testimony as to their birth dates presented at trial confirming the defense’s previous suspicions, the defense agreed that the jury should be given the dates of birth by the Judge as requested because it was apparent the jury was concerned about the specificity of the ages in the charges and the date ranges of the alleged crimes. The Commonwealth had argued during closing that the girls had testified that the abuse was ongoing over the date ranges specified in the indictments and that the jury did not have to find the defendant guilty of one specific crime for each indictment, but the defense had argued if the jury did not believe the abuse had occurred at the time of a specific event by the child during her testimony, then how could they believe any abuse occurred at all even during the date ranges. The stated reason the defense used in agreeing that the Court could give the jury the birth dates was because the defense was certain that the birth dates had already been testified to anyway and it did no harm in giving them evidence already presented. The Judge gave the dates of birth to the jury.
The second set of questions asked specifically about two of the instructions and whether the ages of the girls fit the charge for each instruction, which affirmed the defense’s conclusion as to why the jury wanted the birth dates in the first set of questions. The defense agreed with the Judge that the jury should be instructed that the burden was on the Commonwealth to prove all of the elements of the crimes charged and if all the elements of the chrimes are not proven, then the defendant should be found Not Guilty.
The third set of jury questions came an hour and a half before the verdict. These questions were: “What is the definition of circumstantial evidence?” and “Is witness testimony circumstantial evidence?” The defense agreed that the Judge should tell the jury that they had all of the evidence and all of the instructions before them and they should decide the case based on what they have, The defense felt that it would be even more confusing to the jury to give them additional definitions or responses.
Postscript
Defense counsel assisted the defendant in getting his state locksmith license reinstated with the Criminal Justice Services Department.
In addition, an appeal was filed with the Social Services Department for Roanoke County which had made an investigation into the girls’ complaints and made a “founded” Child Protective Services decision that would have labeled him a sex offender in their records for between 12 and 18 years. The initial appeal was denied by the local department head and that decision was appealed to a hearing officer for the Commonwealth of Virginia. After a nearly full day hearing by video conference, the founded complaints were reversed and he was totally cleared of all allegations within that Department.
