COURT OF APPEALS OF VIRGINIA Present: Judges O’Brien, Lorish and Senior Judge Annunziata PUBLISHED Argued at Alexandria, Virginia DILLIRAJ BISTA OPINION BY v. Record No. 0904-21-4 JUDGE ROSEMARIE ANNUNZIATA DECEMBER 6, 2022 COMMONWEALTH OF VIRGINIA FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Stephen C. Shannon, Judge Dawn M. Butorac, Public Defender, for appellant. Katherine Quinlan Adelfio, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee. A jury convicted Dilliraj Bista of sodomy of a child under the age of thirteen years by a person eighteen years of age or older and aggravated sexual battery, in violation of Code §§ 18.2-67.1 and 18.2-67.3, respectively.1 Consistent with the jury’s verdict, the trial court sentenced Bista to life plus twenty years’ incarceration. Bista challenges his convictions on several grounds. First, Bista argues that the trial court erroneously admitted the child’s out-of-court statements under Code § 19.2-268.3. As a matter of first impression, we must decide whether that statute conditions admissibility on the declarant’s competency to testify. We hold that it does not. Bista also argues that the trial court’s admission of a video depicting the child’s forensic interview violated his right to confrontation under the Sixth Amendment of the United States Constitution. Next, Bista contends that the trial court erroneously rejected two 1 The jury acquitted Bista of a related charge of rape of a child under the age of thirteen years by a person eighteen years of age or older. proffered jury instructions. Finally, he argues that the trial court improperly limited the scope of his closing argument. For the following reasons, we affirm the trial court’s judgment. BACKGROUND On appeal, we review 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)). Doing so requires us to “discard the evidence of the accused in conflict with that of the Commonwealth, and regard 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. Perkins, 295 Va. 323, 324 (2018)). In August 2018, R.P. was eleven years old and living with her younger brother and parents, Hem and Rita. R.P. suffers from autism spectrum disorder, which impairs her socialization, memory, and ability to learn and communicate. Hem and Rita had immigrated from Nepal and formed a close relationship with Bista and his family, who were also Nepali. R.P. referred to Bista as “grandpa” and communicated with him through gestures and basic English and Nepali phrases. On August 17, 2018, Bista had been staying at R.P.’s home for several days while his wife visited Nepal. That evening, Hem prepared dinner in the kitchen with his parents while Bista smoked a cigarette outside on the “back deck.” R.P. and her brother were alone in a living room on the opposite side of the house. Around 8:30 p.m., Rita went upstairs to …
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