VIRGINIA:
In the Supreme Court of Virginia held at the Supreme Court
Building in the City of Richmond, on Friday, the 8th day of June,
2007.
Michael Terry Clifford, Appellant,
against Record No. 061936
Court of Appeals No. 1310-05-1
Commonwealth of Virginia, Appellee.
From the Court of Appeals of Virginia
At a jury trial in the Circuit Court of the City of Portsmouth,
Michael Terry Clifford was convicted of four counts of aggravated
sexual battery upon four female children under the age of 13
identified as “A,” “H,” “J,” and “C.” He was sentenced, in
accordance with the jury’s verdict, to one year's incarceration on
each count. He appealed to the Court of Appeals, which affirmed the
convictions. Clifford v. Commonwealth, 48 Va. App. 499, 633 S.E.2d
178 (2006).
We awarded Clifford an appeal. He presents a single assignment
of error: “The Court of Appeals erred in holding that the denial of
Mr. Clifford’s right to cross-examine his accuser was harmless
[error] beyond a reasonable doubt.” The Commonwealth assigns as
cross-error the Court of Appeals’ failure to find that the trial
court’s alleged error was abandoned and waived by Clifford. We find
the Commonwealth’s assignments of cross-error to be well-taken and
dispositive of this appeal. We therefore do not reach Clifford’s
assignment of error.
At trial, Clifford moved for leave to cross-examine “J,” who
was 10 years old at the time of trial, to obtain her admission that
she and her mother had reported to the local law-enforcement
authorities that “J” had been sexually molested in 1998 by another
man, a male baby-sitter, resulting in a trial in 2004 that ended in
a hung jury and a retrial later that year that ended in the
acquittal of that defendant. These events took place during the
time that the present case against Clifford was pending. The trial
court permitted Clifford to cross-examine the children’s mother
about the pendency of the baby-sitter’s case (without naming the
specific child involved) during a three-month delay between April,
2004, when the children first reported Clifford’s conduct to her,
and June, 2004, when the mother first reported Clifford’s offenses
to law-enforcement authorities. The mother testified that she
delayed reporting Clifford’s offenses because Clifford was a close
friend of the family and that she first sought help from the church
both families attended, hoping Clifford would repent and “talk it
out with the pastor.”
Clifford explained to the court that he desired to cross-
examine “J” about the same matters, not to ask about any prior
sexual conduct on her part, but rather to impeach her credibility by
showing that because of the baby-sitter’s case, she had access to
the local law-enforcement authorities and knew how to contact them,
yet failed to do so from April until June, 2004. The commonwealth’s
attorney objected on the ground that such cross-examination would
necessarily elicit prior sexual conduct by “J” in violation of the
rape shield law, Code § 18.2-67.7(A). The trial court sustained the
objection.
Later, the trial court revisited the question and advised
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counsel that its ruling excluding the cross-examination of “J”
rested upon a second ground, in addition to the rape shield law.
The trial court referred to this Court’s reasoning in Clinebell v.
Commonwealth, 235 Va. 319, 325, 368 S.E.2d 263, 266 (1988), where we
held that notwithstanding the rape shield law, a defendant in a sex-
crime case had a constitutional right to cross-examine his accuser
about prior false accusations the accuser had made, but only where
the court could make a threshold determination that there was a
reasonable probability that the prior accusations were false. Here,
the trial court reasoned, the mere fact that the baby-sitter had
been acquitted did not establish a “reasonable probability of
falsity” as required by Clinebell; it showed only that the
Commonwealth had failed to prove the baby-sitter’s guilt beyond a
reasonable doubt. Therefore, Clinebell was inapplicable and
Clifford’s motion for leave to cross-examine “J” about the baby-
sitter’s case would be denied because of the lack of proof that her
accusation of the baby-sitter had been false.
Having explained this “false accusation” basis for its ruling,
the trial court asked counsel if there was “anything that you all
would like to say on the record.” Clifford’s counsel responded:
“No, sir, just continuing to note our objection based upon the
theory of admissibility that we had advanced before.” Thus,
Clifford relied, in the trial court, only on the “access to justice”
argument he had originally advanced, and made no objection to the
“false accusation” rationale adopted by the trial court as the basis
of its ruling.
Nevertheless, both Clifford’s petition for appeal to the Court
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of Appeals and his opening brief in that court challenge only the
“false accusation” rationale adopted by the trial court and abandon
the “access to justice” argument Clifford had relied on in the trial
court. The Commonwealth’s brief in the Court of Appeals pointed out
the discrepancy, and argued that Clifford had waived the “access to
justice” argument by failing to assert it in his petition or brief,
and that consideration of the “false accusation” argument he was
relying on in the Court of Appeals was barred, never having been
made the subject of any objection in the trial court.
The Court of Appeals, however, relied entirely on the “access
to justice” rationale, which Clifford had not asserted on appeal, to
find that the trial court had erred in denying Clifford the right to
cross-examine “J” about the baby-sitter’s case. The Court of
Appeals went on to find that the error was harmless in light of the
other evidence in the case, Clifford, 48 Va. App. at 510-11, 633
S.E.2d at 183, particularly the cross-examination of the mother, id.
at 512-13, 633 S.E.2d at 184, and affirmed the conviction. Id. at
520, 633 S.E.2d at 188.
In support of its assignments of cross-error in this Court, the
Commonwealth contends that “arguments not made in the petition for
appeal” are not to be considered on appeal, citing West v.
Commonwealth, 249 Va. 241, 243 n.1, 455 S.E.2d 1, 2 n.1 (1995)
(applying provisions of Rule 5:17 analogous to those of Rule
5A:12(c)) and that the basis upon which the Court of Appeals found
the trial court’s ruling to be error was therefore not before the
Court of Appeals. The Court of Appeals has so construed its own
Rule 5A:12(c). "Only those arguments presented in the petition for
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appeal and granted by this Court will be considered on appeal."
McLean v. Commonwealth, 30 Va. App. 322, 329, 516 S.E.2d 717, 720
(1999) (en banc). Further, the Commonwealth argues, an issue
abandoned at trial may not be resurrected on appeal, and an
appellate court may not “recast” an argument made in a lower court
into a different argument upon which to base its decision, citing
Commonwealth v. Shifflett, 257 Va. 34, 44, 510 S.E.2d 232, 237
(1999). We agree, and sustain the Commonwealth’s assignments of
cross-error.
Accordingly, the judgment of the Court of Appeals is reversed.
The case is remanded to the Court of Appeals with direction to enter
an order affirming the judgment of the circuit court.
This order shall be published in the Virginia Reports and shall
be certified to the Court of Appeals of Virginia and to the said
circuit court.
A Copy,
Teste:
Patricia L. Harrington, Clerk
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