COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Senior Judge Overton
Argued at Norfolk, Virginia
WAYNE COLLINS CASTELOW
OPINION BY
v. Record No. 1177-98-1 JUDGE JAMES W. BENTON, JR.
MARCH 16, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Verbena M. Askew, Judge
Charles E. Haden for appellant.
Ruth Morken McKeaney, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Wayne Collins Castelow appeals from a conviction for
aggravated sexual battery against a thirteen-year-old child. See
Code § 18.2-67.3. He contends the trial judge erred (1) in
admitting testimony that the child made a complaint sixteen
months after the alleged offense, (2) in quashing his subpoena
for the child's diary, and (3) in finding the evidence sufficient
to prove the offense. For the reasons that follow, we reverse
the conviction and remand for a new trial.
I.
On October 27, 1995, the thirteen-year-old child lived with
her father and was scheduled to visit her mother, who was married
to Wayne Castelow's brother. The child's mother testified that
the child arrived after school on October 27 and stayed the
weekend in the mother's home. She testified that Castelow was in
her home on the night of October 27. The child's mother also
testified that when she and her husband went to their bedroom at
10:30 p.m., Castelow was downstairs with the child and the
mother's twelve-year-old son. She further testified that
Castelow left her home around 8:00 a.m. on October 28 when her
husband went to work. The child's mother recalled that day
because another child she was babysitting fell out a window.
The child testified that she and Castelow were watching
television alone in the living room of her mother's home after
11:00 p.m. on October 27. Around midnight, Castelow gave her
beer to drink as they watched television. She testified that she
had consumed six beers by 2:00 a.m. and was "drunk." When the
movie ended at approximately 2:00 a.m., the child rose from her
chair to go to bed and walked past Castelow. Castelow grabbed
her arm, causing her to fall to the floor, and then got on top of
her. He unbuttoned her blouse, touched her bare breasts, touched
the clothing over her vaginal area, and tried to kiss her. She
was able to get away between 2:00 and 2:30 a.m. and went to her
bedroom and locked her door. She testified that she saw Castelow
and her mother's husband drive away the next day between noon and
2:00 p.m. The child testified that she recalled the date of the
incident because it was the same weekend that her half-sister
fell out of a window at the house.
Sixteen months later, in February 1997, the child ran away
from home. When she returned, her stepmother spoke with her
privately and questioned her. The child's stepmother testified
that she had read something in the child's diary that caused her
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to question the child. Over objection, the child's stepmother
testified that when she questioned the child about the matter in
the child's diary, the child told her about the incident with
Castelow.
After a complaint was filed with the police, a detective
questioned Castelow. Castelow told the detective he could not
remember the date but he recalled an incident with the child at
his brother's home. According to Castelow, he was drinking beer
and smoking marijuana when the child asked him for a beer. As he
gave the beer to her, it spilled onto her chest. Castelow said
the child unbuttoned her shirt and placed Castelow's hand on her
chest. He then fondled and kissed her breast. According to
Castelow's statement, he also bit her breast at her request.
Castelow presented evidence at trial to establish that
neither he nor his brother were present at the child's mother's
home during the weekend in question. Castelow's brother
testified he was living apart from his wife during that time. He
recalled that he was living with his parents the weekend the
other child fell from his wife's window.
Castelow's father testified that Castelow's brother was
living in his parents' home the weekend in question. He recalled
being at home when Castelow's brother received a telephone call
regarding a child falling from the window. Castelow's mother
confirmed that fact and testified that Castelow's brother was
living with them when he received the telephone call. She also
testified that Castelow told her after he was arrested that the
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child had placed his hand in her blouse and he had touched her
breast.
Castelow's employer testified that his employment records
indicate Castelow was at work distributing newspapers in North
Carolina on October 27, 28, and 29 of 1995. He also testified
that the distance from Newport News to his place of business can
be travelled in two and one-half hours and that Castelow's work
day routinely began at 6:00 a.m., ending two to two and one-half
hours later.
The trial judge found "that [the child] was credible," that
her story [was] believable," "that the outcry, by telling another
individual, was corroboration for that testimony," and "that the
explanation . . . provided by . . . Castelow, to the detective in
some way corroborates" the child's testimony. The trial judge
convicted Castelow of aggravated sexual battery.
II.
Castelow first contends the trial judge erred in admitting
the testimony of the child's stepmother concerning the child's
statement that Castelow sexually molested her. He argues that
the statement, coming sixteen months after the alleged event, was
not a recent complaint. The Commonwealth responds that the trial
judge did not abuse her discretion in admitting the testimony as
corroboration, pursuant to Code § 19.2-268.2. We hold that the
evidence did not provide a proper foundation for the admission of
the child's complaint to her stepmother.
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The rule has been long established by case decisions that a
complaint recently made by the victim of a rape is admissible.
See Haynes v. Commonwealth, 69 Va. (28 Gratt.) 942, 947-48
(1877). See also Pepoon v. Commonwealth, 192 Va. 804, 810-11, 66
S.E.2d 854, 858 (1951). In 1993, the legislature statutorily
enacted the rule to apply to rape and other specifically
designated sexual offenses. In pertinent part, Code § 19.2-268.2
provides 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 . . . , 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.
The issue presented in this appeal is whether the child's
complaint to her stepmother was made "recently after commission
of the offense" as required by Code § 19.2-268.2.
In Pepoon, the Supreme Court noted that "a statement made a
week or ten days after the alleged attack . . . [was not] a
recent complaint." 192 Va. at 811, 66 S.E.2d at 858. In Herron
v. Commonwealth, 208 Va. 326, 157 S.E.2d 195 (1967), where the
complaint was made "the second day after it happened," id. at
330, 157 S.E.2d at 198, the Court ruled that the complaint was
recent and that the "delay in making a report . . . should bear
upon the weight to be given the evidence, not its admissibility."
Id.
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Despite the Supreme Court's observation in Pepoon, we have
upheld admission of a complaint "made more than two months after
the crime." Woodard v. Commonwealth, 19 Va. App. 24, 25, 448
S.E.2d 328, 329 (1994). In so doing, we held that "[t]he initial
determination of timeliness under the recent complaint rule is
committed to the sound discretion of the trial [judge]." Id. at
27, 448 S.E.2d at 330. We noted, however, that in 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 the trial judge to be guided by the
"'requirement . . . that the complaint [shall] have been made
without a delay which is unexplained or is inconsistent with the
occurrence of the offense.'" Id. (citation omitted).
In Lindsey v. Commonwealth, 22 Va. App. 11, 467 S.E.2d 824
(1996), we affirmed a trial judge's admission of a complaint made
by a child "approximately two years after the alleged incident."
Id. at 13, 467 S.E.2d at 825. The child's testimony, in Lindsey,
that "she had been too frightened to tell her mother about the
incident," id. at 14, 467 S.E.2d at 825, provided the foundation
to guide the trial judge's exercise of discretion. Under 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," Code § 19.2-268.2, was explained on the record and was
not inconsistent with the occurrence of the event. Indeed, after
the Lindsey decision, we noted the following:
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We do not read Lindsey as adopting a rule
inconsistent with Woodard and the Virginia
common law. Under both Woodard and Lindsey,
timeliness is a factor in determining the
admissibility of the complaint, the weight of
the evidence, and the credibility of the
prosecutrix. Thus, under Code § 19.2-268.2,
timeliness, in relation to the reasons for
the delay, must initially be decided by the
trial judge in order to determine whether
evidence of the complaint can be admitted.
Terry v. Commonwealth, 24 Va. App. 627, 635, 484 S.E.2d 614, 618
(1997) (footnote omitted, emphasis added).
The evidence in this record proved that the child ran away
from her home in 1997, sixteen months after she alleges the
molestation occurred. When she returned home, her stepmother
inquired of her concerning some matter the mother had read in the
child's diary. During that discussion, the child made statements
about the alleged incident. See Herron, 208 Va. at 330, 157
S.E.2d at 198 (noting that "the answer of a fifteen-year-old girl
to questions put by the police [was] a complaint within the
meaning of the [common law] rule"). On direct examination, the
child testified that she had not previously "said anything to
anyone about it." No evidence in the record explains the delay
of sixteen months.
In the absence of evidence in the record explaining the
extraordinary delay, we hold that the evidence fails to provide a
foundation from which the trial judge could have found that the
complaint met the statutory requirement that it was made
"recently after commission of the offense." Code § 19.2-268.2.
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III.
The Commonwealth contends that any error was harmless. We
disagree. "[U]nder Code § 8.01-678, a criminal conviction must
be reversed unless 'it plainly appears from the record and the
evidence given at the trial that' the error did not affect the
verdict." Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407
S.E.2d 910, 911 (1991) (en banc).
To convict Castelow of aggravated sexual battery, the
Commonwealth bore the burden of proving beyond a reasonable doubt
the statutory elements. Specifically, where, as here, the child
"is at least thirteen but less than fifteen years of age," the
Commonwealth had to prove "[t]he act is accomplished against the
will of the complaining witness, by force, threat or
intimidation, or through the use of the complaining witness's
mental incapacity or physical helplessness." Code § 18.2-67.3.
The trial judge found that the child's testimony was
"believable." However, the trial judge also "[found] that the
outcry . . . was corroboration for that testimony." Clearly, the
trial judge gave weight to the corroborative effect of the
disputed testimony. Thus, we cannot say that the error did not
affect the verdict. Certainly, if the child's testimony had not
been fully credited by the trier of fact, the evidence was
sufficient to raise an arguable issue whether Castelow was guilty
of the felony or the lesser offense of assault and battery. See
e.g. Johnson v. Commonwealth, 5 Va. App. 529, 365 S.E.2d 237
(1988).
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IV.
Castelow also contends the trial judge erred in quashing his
subpoena for the child's diary. Citing Rule 3A:11(b), the
Commonwealth argues that Castelow was not entitled to the diary
because it was not in the possession of the Commonwealth. The
Commonwealth also argues that the diary was not proved to be
relevant. Because this issue may arise on remand, we address it.
The record establishes that the child and the child's
stepmother testified in the Commonwealth's case-in-chief that the
child made her disclosure sixteen months after October 1995. The
stepmother testified that she questioned the child about Castelow
because of something she read in the child's diary. The child
testified that she responded to that inquiry.
During a lengthy recess of the trial after the Commonwealth
rested its case, Castelow sought the diary from the child
pursuant to a subpoena duces tecum. The Commonwealth filed a
motion to quash the subpoena on the grounds that the diary was
not discoverable because the child and her stepmother "are
parties to the action" and because "it is not within the
possession, custody, or control of the Commonwealth." 1 The trial
judge examined the diary in camera, ruled that it contained no
"exculpatory evidence," and quashed the subpoena.
1
No issue was raised concerning the Commonwealth's right to
object to a subpoena issued to a third party. Accordingly, we
expressly do not decide that issue.
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The Constitution of Virginia provides "[t]hat in criminal
prosecutions [the accused] hath a right . . . to call for
evidence in his favor." Va. Const. art. I, § 8. "When sought by
an accused, a subpoena duces tecum furthers the accused's right
'to call for evidence in his favor.'" Gibbs v. Commonwealth, 16
Va. App. 697, 699, 432 S.E.2d 514, 515 (1993) (citation omitted).
This unqualified right includes "the right to
prepare for trial which, in turn, includes
the right to interview material witnesses and
to ascertain the truth." This right applies
with equal force to the procurement of
documentary evidence.
When a defendant seeks disclosure of
evidence, the standard to be applied in
determining its materiality is whether "a
substantial basis for claiming materiality
exists." If materials in the hands of third
parties "could be used at the trial," they
are the proper subject of a subpoena duces
tecum.
Cox v. Commonwealth, 227 Va. 324, 328, 315 S.E.2d 228, 230 (1984)
(citations omitted).
"In a criminal proceeding, either the defendant or the
Commonwealth may apply for a subpoena [under Rule 3A:12(b)] to
obtain writings and objects that are material to the proceeding
and in the possession of a third party." Gibbs, 16 Va. App. at
699, 432 S.E.2d at 515. Thus, under the rule governing the
issuance of a subpoena, "if objects or documents are material to
the offenses with which an accused is charged, the accused has
the right in preparing for trial to examine them." Id.
Furthermore, under Rule 3A:12(b), "the scope of a subpoena duces
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tecum is not limited to those objects or documents that may be
used at trial." Id.
In quashing the subpoena upon the finding that the material
was "not exculpatory," the trial judge used the wrong standard.
The proper inquiry was whether, in view of the testimony of the
child and the child's stepmother, a substantial basis existed for
claiming the diary was material to the offense charged. Because
we must remand for a new trial, we will not now undertake to
analyze from the record the issue of materiality. Furthermore,
we note that the diary was not proffered in the record by
Castelow or by the trial judge "after examining [it] in camera."
Id. at 701, 432 S.E.2d at 516. If this matter recurs on remand,
the trial judge must consider the issue of materiality.
For these reasons, we reverse the conviction and remand for
a new trial.
Reversed and remanded.
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