COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Frank and Clements
Argued at Alexandria, Virginia
SAMUEL MARCELLUS ESSER
OPINION BY
v. Record No. 2327-00-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
JULY 30, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FREDERICK COUNTY
Arthur W. Sinclair, Judge Designate
E. Eugene Gunter for appellant.
Donald E. Jeffrey, III, Assistant Attorney
General (Randolph A. Beales, Attorney
General, on brief), for appellee.
Samuel Marcellus Esser (appellant) was convicted in a jury
trial of rape in violation of Code § 18.2-61, one count each of
cunnilingus, fellatio, and forcible sodomy in violation of
Code § 18.2-67.1, one count of penetration of the labia majora,
and one count of penetration of the anus in violation of
Code § 18.2-67.2. The sole issue on appeal is whether the trial
court erred in allowing, under the excited utterance exception
to the hearsay rule, the mother of the victim to testify about
the details of the rape and sexual assaults as related to her by
the victim. For the following reasons, we affirm appellant's
convictions.
I. BACKGROUND
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 at the time of the
sexual assaults, A.M., the victim, was nineteen years old, 4' 6"
tall, and weighed approximately sixty-five pounds. She suffered
from atactic cerebral palsy, retinal dystrophy, speech
impediments, a learning disability and was unable to walk
without assistance.
On March 22, 1999, the victim was at the trailer home of
her aunt, Bonnie Miller (Miller). Miller and her daughter left
the trailer for approximately thirty minutes while A.M. remained
with appellant, Miller's live-in boyfriend. When they were
alone in the trailer, appellant grabbed the victim's legs and
laid her on a couch. Appellant removed his underwear, undressed
A.M., then raped and sexually assaulted her. Appellant
redressed A.M. when he heard Miller's car in the driveway. A.M.
said nothing to her aunt because "[she] was scared
. . . [appellant] said don't tell your mom or Bonnie or you'll
regret it." She remained at the trailer for an hour and
one-half until her mother arrived to take her home.
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A.M. said nothing about the events at her aunt's trailer
until the morning of March 24, 1999, two days after the sexual
assaults occurred. When A.M.'s mother told her that she was
going to work, A.M. began to "cry hysterically because she was
afraid [her mother] was going to put her back in the same
environment." A.M. told her mother that she might be pregnant
and her mother said, "Honey, I thought you told me that you have
never done anything, you know, with any guys." A.M. said
"Mommy, my uncle Sam raped me." She then described the details
of the rape and sexual assaults.
At trial, appellant objected to the admissibility of the
mother's testimony, which included details of the assaults as
described by her daughter, as both hearsay and repetitive
testimony. The Commonwealth argued that the statements were
admissible under the excited utterance exception to the hearsay
rule. 1 The trial court overruled the objection and stated that,
1
The Commonwealth argues that appellant failed to preserve
this issue pursuant to Rule 5A:18. However, the record
establishes that appellant objected to the mother's testimony as
both hearsay and repetitive. In response, the Commonwealth's
attorney argued that "it would be hearsay evidence, but it is a
clear exception to the hearsay [sic] excited utterance exception
to the hearsay rule." Thus, the trial judge had the opportunity
to consider the specific argument made and rule on that basis.
"The purpose of the rule is to ensure that the trial court and
opposing party are given the opportunity to intelligently
address, examine, and resolve issues in the trial court, thus
avoiding unnecessary appeals." Andrews v. Commonwealth, 37 Va.
App. 479, 493, 559 S.E.2d 401, 408 (2002) (citing Lee v. Lee, 12
Va. App. 512, 514, 404 S.E.2d 736, 737 (1991) (en banc)).
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"[u]nder all the circumstances so far as they exist at this
point, it would be admissible." Appellant renewed his objection
during the mother's testimony on the ground that "[A.M.] has
already testified in that regard, directly." The trial court
overruled the objection.
II. EXCITED UTTERANCE ANALYSIS
There is no fixed rule by which the
question whether the statement is admissible
as an excited utterance can be decided.
Resolution of the issue depends on the
circumstances of each case and "rests within
the sound judicial discretion and judgment
of the trial court." That discretion and
judgment, of course, is subject to review.
Nonetheless, in a doubtful case there "is a
presumption in favor of the action" of the
trial court.
Clark v. Commonwealth, 235 Va. 287, 292, 367 S.E.2d 483, 486
(1988) (quoting Huffman v. Commonwealth, 168 Va. 668, 681, 190
S.E. 265, 271 (1937)).
Appellant contends that A.M.'s statements to her mother
were inadmissible hearsay and were improperly admitted under the
excited utterance exception. He argues that the "startling
event" necessary to give rise to the exception was the sexual
assault which occurred two days earlier and, thus, this time
lapse negated the existence of spontaneity required for
application of the exception. We disagree with this contention.
The startling event which precipitated the excited utterance
occurred when A.M. was told by her mother that she was required
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to return to work and A.M. was to be returned to the place where
the assaults occurred and the possible control of her attacker.
A.M.'s statements were made immediately thereafter.
As a general rule, hearsay evidence is incompetent and
inadmissible, and "[t]he party seeking to rely upon an exception
to the hearsay rule has the burden of establishing
admissibility." Neal v. Commonwealth, 15 Va. App. 416, 420-21,
425 S.E.2d 521, 524 (1992) (citing Doe v. Thomas, 227 Va. 466,
472, 318 S.E.2d 382, 386 (1984)).
A statement comes within the excited
utterance exception to the hearsay rule and
is admissible to prove the truth of the
matter stated, when the statement is
spontaneous and impulsive, thus guaranteeing
its reliability. "There is no fixed rule by
which the question whether the statement is
admissible as an excited utterance can be
decided. Resolution of the issue depends
upon the circumstances of each case." The
statement must be prompted by a startling
event and be made at such time and under
such circumstances as to preclude the
presumption that it was made as the result
of deliberation. In addition, the declarant
must have firsthand knowledge of the
startling event. The decision whether the
statement qualifies as an excited utterance
lies within the discretion of the trial
court.
Braxton v. Commonwealth, 26 Va. App. 176, 184, 493 S.E.2d 688,
691 (1997) (quoting Goins v. Commonwealth, 251 Va. 442, 460, 470
S.E.2d 114, 126 (1996)). "Whether a hearsay statement is an
excited utterance is not determined solely by the lapse of time
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between the 'startling event' and the declaration." Id. (citing
Doe, 227 Va. at 471-72, 318 S.E.2d at 385).
Appellant's contention that the startling event had to be
the crime, itself, is without merit. The basis of the excited
utterance exception rests with the spontaneity and impulsiveness
of the statement; thus, the startling event does not have to be
the actual crime itself, but rather may be a related occurrence
that causes such a reaction.
Analyzing an excited utterance generated by a startling
event that occurred later than the actual crime, the Maryland
Court of Special Appeals stated:
The relationship between the subsequent
startling event, the excited utterance
generated by it, the prior event about which
the statement comments, and the time between
both startling events and the statement are
all relevant, especially in regard to
whether the utterance is made without
reflection. We see no reason, however,
given the rationale for the excited
utterance exception in the first instance,
why a subsequent related startling event
cannot be the startling event that produces
an excited utterance about a prior event or
why that excited utterance cannot be
considered for admission under the excited
utterance exception to the hearsay rule.
The trial court, of course, would still have
to consider all elements, including the
passage of time and opportunity for
fabrication or excuse, in resolving the
issue of spontaneity in order ultimately to
rule on admissibility.
Bayne v. State, 632 A.2d 476, 489 (Md. Ct. Spec. App. 1993).
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We agree with this analysis. See Pugh v. Commonwealth, 223
Va. 663, 669, 292 S.E.2d 339, 342 (1982) (holding that the
father's statement, "Oh, no, not again," when told about the
death of his child, was admissible under the excited utterance
exception to the hearsay rule because the statement was prompted
by the announcement of the unexpected death of his child); see
also Tennessee v. Gordon, 952 S.W.2d 817, 821 (Tenn. 1997)
(holding that the startling event was not the rape itself, but
pain suffered while urinating following the rape, even though
the victim identified the defendant two minutes after the
startling event; her statement qualified as an excited utterance
because the stress of the event had not diminished and the time
was short); United States v. Napier, 518 F.2d 316, 318 (9th Cir.
1975) (holding that when an assault victim who had been
hospitalized for seven weeks after the assault returned home and
saw a picture of the defendant, her statement "he killed me" was
an excited utterance because the display of the photograph was a
sufficiently startling event); and In re Troy P., 842 P.2d 742,
747 (N.M. Ct. App. 1992) (holding that a four-year-old victim's
mother properly testified to statements made by her daughter
upon learning she was to be returned to her father's custody
where she had been assaulted by a babysitter's son several weeks
earlier; "spontaneous utterances made well after the event [may
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be admissible] when the declarant was suddenly subjected to
rekindled excitement").
We hold that the facts of the instant case support the
trial court's finding that A.M.'s statement describing the
events to her mother was an excited utterance and sufficiently
trustworthy to justify its admission into evidence. The
statement was made the first time she believed she was to be
returned to the place where she was assaulted and to the control
of appellant, the man who had raped and sexually assaulted her.
Her physical condition made her unable to protect herself from
any future assaults. We cannot say, upon this record, that the
trial court abused its discretion by ruling that the victim's
statement, as related by her mother, was admissible as an
excited utterance.
Affirmed.
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