Brown v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Bumgardner and Humphreys

Argued at Richmond, Virginia

DONALD GENE BROWN

OPINION BY

v. Record No. 2395-00-2 CHIEF JUDGE JOHANNA L. FITZPATRICK

NOVEMBER 20, 2001

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF POWHATAN COUNTY

Thomas V. Warren, Judge

Lucretia A. Carrico (Blandford, Carrico &

Newlon, P.C., on brief), for appellant.

Jennifer R. Franklin, Assistant Attorney

General (Randolph A. Beales, Attorney

General; Thomas M. McKenna, Assistant

Attorney General, on brief), for appellee.

Donald G. Brown (appellant) was convicted in a bench trial

of taking indecent liberties with a child in violation of

Code § 18.2-370. The sole issue on appeal is whether the trial

court abused its discretion in allowing the testimony of the

victim's stepmother under the "recent complaint" exception to

the hearsay rule. For the following reasons, we affirm

appellant's conviction.

I.

Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth,

the prevailing party below, granting to it all reasonable

inferences fairly deducible therefrom. See Juares v.

Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).

So viewed, the evidence established that during the summer

of 1995 when the eleven-year-old victim was with appellant, her

grandfather, he involved her in three separate sexual incidents.

Each of these events relates to appellant's speaking to or

observing his granddaughter in an inappropriate sexual manner.

The third incident, which is the subject of the instant

case, occurred in July or August of 1995 during a family

cookout. Appellant took the child with him to have his truck

washed. When her brother and cousin asked to go, appellant

replied, "No. Just [the child]." During the trip to the car

wash, appellant asked her if she liked boys and she said yes.

He asked if she knew how boys masturbated, and when she said no,

he said he would show her sometime. Appellant questioned her

about how girls masturbated and asked her to show him. The

child told her grandfather that she felt uncomfortable with the

conversation, but he continued. He described dildos his wife

had in a drawer and told the child he would show her how to use

them. He also recounted his first sexual experience, saying

that he "stuck his dick in" and did not know what to do after

that. Near the end of the trip, he told his granddaughter not

to tell anyone about their conversation because he would "get in

trouble."

- 2 -

Approximately twenty-one months later, the child told her

stepmother about the conversation she had with her grandfather.

At trial, over objection, the child's stepmother testified that

the child described in detail the events and sexual discussion

that occurred in her grandfather's truck. The child testified

that she did not report the incident sooner because her

grandfather told her not to report it and she "didn't think that

anybody was going to believe me." Additionally, during

cross-examination, she responded affirmatively to the question

of whether she felt "scared and threatened."

Appellant testified at trial and denied that these events

occurred.

In finding appellant guilty of taking indecent liberties

with a child, the trial court made a specific credibility

finding. "The most important testimony comes from you

[appellant] and comes from the granddaughter. As compared to

you and your testimony, I thought hers [sic] was clear. I

thought it was convincing. I thought it was precise, direct and

I find it believable, beyond a reasonable doubt." Appellant was

sentenced to five years in the penitentiary, all suspended

conditioned upon his serving sixty days in jail.

II.

Appellant argues that the trial court abused its discretion

in allowing the victim's stepmother to testify that the child

- 3 -

reported the incident to her. He contends that the complaint

was not timely and that the foundation existing in the record

was insufficient to explain the delay.

The admission of evidence concerning a rape victim's

complaint as an exception to the hearsay rule is codified in

Code § 19.2-268.2 as follows:

Notwithstanding any other provision of law,

in any prosecution for criminal sexual

assault under Article 7 (§ 18.2-61 et seq.)

of Chapter 4 of Title 18.2, a violation of

§§ 18.2-361, 18.2-366, 18.2-370 or

§ 18.2-370.1, the fact that the person

injured made complaint of the offense

recently after commission of the offense is

admissible, not as independent evidence of

the offense, but for the purpose of

corroborating the testimony of the

complaining witness.

"Under the modern rule, it is understood that the 'only time

requirement is that the complaint have been made without a delay

which is unexplained or is inconsistent with the occurrence of

the offense.'" Woodard v. Commonwealth, 19 Va. App. 24, 27, 448

S.E.2d 328, 330 (1994) (quoting Edward W. Cleary, McCormick on

Evidence § 297 (3d ed. 1984)). "The initial determination of

timeliness under the recent complaint rule is committed to the

sound discretion of the trial court, and thereafter, timeliness

is a matter for the trier of fact to consider in weighing the

evidence." Id. "[I]n determining whether the trial judge

abused his or her discretion, we must consider whether the

evidence in the record provided a sufficient foundation to allow

- 4 -

the trial judge to [determine that] the complaint [was made]

without a delay which is unexplained or is inconsistent with the

occurrence of the offense." Castelow v. Commonwealth, 29 Va.

App. 305, 311, 512 S.E.2d 137, 139 (1999) (emphasis removed).

To support his argument that the record in the instant case

is insufficient to provide an adequate foundation for the trial

court to admit the child's report to her stepmother, appellant

relies on our holding in Castelow. That reliance is misplaced.

In Castelow, we held that the trial court erred in allowing

testimony of a child's stepmother that Castelow sexually

molested the child. The statement was made sixteen months after

the alleged event and was inadmissible because "the evidence did

not provide a proper foundation for the admission of the child's

complaint to her stepmother." Id. at 310, 512 S.E.2d at 139.

The foundation was lacking because "[n]o evidence in the record

explains the delay of sixteen months." Id. at 312, 512 S.E.2d

at 140.

The record in the instant case explains the victim's delay

in reporting and is consistent with the occurrence of the

offense. The child testified that she did not tell anyone about

the incident because her grandfather told her not to tell and

she "didn't think anybody was going to believe me." Further, on

cross-examination, she answered affirmatively that she felt

- 5 -

scared and threatened by appellant. These facts distinguish

this case from Castelow.

In Lindsey v. Commonwealth, 22 Va. App. 11, 467 S.E.2d 824

(1996), we affirmed the trial court's admission of a child's

complaint made two years after the alleged incident. The

evidence established that "she had been too frightened to tell

her mother about the incident." Id. at 14, 467 S.E.2d at 825.

We held that "while the lapse of time between the alleged event

and the report is certainly an issue, it is a question of weight

rather than of admissibility." Id. at 16, 467 S.E.2d at 827.

Discussing Lindsey, we stated in Castelow that "[u]nder those

circumstances, the trial judge could have determined that

failure to meet the statutory requirement that the person

injured made complaint of the offense recently after commission

of the offense was explained on the record and was not

inconsistent with the occurrence of the event." Castelow, 29

Va. App. at 311-12, 512 S.E.2d at 140 (internal citations

omitted).

In the instant case, the delay of approximately two years

was sufficiently explained and provided an adequate foundation

for the admission of the child's complaint. Thus, we hold that

the trial court did not abuse its discretion when admitting the

testimony. For these reasons, we affirm appellant's conviction.

Affirmed.

- 6 -