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."
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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
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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
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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
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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.
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