Blaylock v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, * Judges Baker and Annunziata
Argued at Alexandria, Virginia

ERIC BLAYLOCK
OPINION BY
v. Record No. 1579-96-4 JUDGE ROSEMARIE ANNUNZIATA
FEBRUARY 17, 1998
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Benjamin N. A. Kendrick, Judge
Albert J. Ahern, Jr. (Louis Koutoulakos, on
briefs), for appellant.

Richard B. Smith, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.

Following a jury trial, appellant, Eric Blaylock, was

convicted of aggravated sexual battery upon a child less than

thirteen years of age in violation of Code § 18.2-67.3. On

appeal, he contends that the trial court erred in making numerous

evidentiary rulings and when instructing the jury. For the

reasons which follow, we reverse the decision of the trial court.

The facts related here are limited to those pertinent to the

issues raised on appeal and they are set forth in the light most

favorable to the Commonwealth, the party prevailing below.
McBride v. Commonwealth, 24 Va. App. 603, 605-06, 484 S.E.2d 165,

167 (1997) (citing Martin v. Commonwealth, 4 Va. App. 438, 443,

358 S.E.2d 415, 418 (1987)). After the Commonwealth brought

*
On November 19, 1997, Judge Fitzpatrick succeeded Judge
Moon as chief judge.
child pornography charges against appellant relating to materials

transmitted through the Internet and found on a computer in

appellant's home, Jana Starr brought charges against appellant

for sexually molesting her several years earlier. The

Commonwealth chose not to pursue the pornography charges, but

indicted appellant for aggravated sexual battery on a child under

thirteen.

Starr testified she was eleven years of age when she was

sexually molested in 1985 by appellant, the half-brother of one

of Starr's close friends at the time. Appellant was then

twenty-four years old. He lived directly across the street from

Starr and was described by her as a "big brother" figure.
Starr testified that appellant entered her home one evening

when she was alone and offered her a backrub. Starr stated that

after moving her bra and shirt aside, appellant pushed down her

shorts and underpants and began to lick her back and then

proceeded to rub her genitals. Penetration occurred when

appellant partially inserted one of his fingers into her vagina.

At the time, Starr never told anyone of the incident because she

was embarrassed and because of the close relationship which

existed between her and the appellant's church community. At

trial, appellant denied the incident had occurred and presented

an alibi defense.

The jury convicted appellant of the charge of aggravated

sexual battery of a child under thirteen years of age. In

2
accordance with the jury recommendation, the court sentenced

appellant to eight years imprisonment.

3
 I.

Evidence Regarding Starr's Reputation for Truth

Appellant proffered the testimony of Starr's two former

Arlington neighbors who would have testified that Starr's

reputation in Arlington for truthfulness was bad. Starr last

lived in Arlington in 1993. The trial court sustained the

Commonwealth's objection to the evidence and restricted

reputation evidence to the community in which Starr lived at the

time of trial. We find the exclusion of the evidence to be

reversible error.
In support of the trial court's exclusion of the evidence,

the Commonwealth relies in part on Mohler v. Commonwealth, 132

Va. 713, 735, 111 S.E. 454, 461 (1922), which states that the

"question to be investigated is the reputation of the witness for

truth and veracity as of the time at which he testifies." The

Commonwealth acknowledges that the fact the witness sought to be

impeached no longer resides in a particular community does not
per se bar reputation testimony from that community. See Clark

v. Commonwealth, 202 Va. 787, 790-91, 120 S.E.2d 270, 273 (1961).

Nevertheless, relying on Cantrell v. Superior Loan Corp., 603

S.W.2d 627, 639 (Mo. Ct. App. 1980), and State v. Thomas, 113

P.2d 73, 77 (Wash. 1941), the Commonwealth contends that

"reputation evidence from a former community is admissible only

upon a showing of a present connection with the community." The

Commonwealth argues that, because Starr had no present connection

4
with the Arlington community, the evidence was properly excluded.

The question before us was settled in Brown v. Commonwealth,

147 Va. 660, 662, 137 S.E. 492, 492 (1927). Citing Wigmore on

Evidence 1 and reasoning from the premise that "a status once

established is generally presumed to continue unchanged until the

contrary is shown," the Virginia Supreme Court held that the

remoteness of a witness' knowledge of reputation goes to its

weight and not to its admissibility. Id. To be sure, the

evidence "must not be so distant in time as to be void of real

probative value in showing present character." Id.

The determination of whether evidence is so remote as to be

without probative value rests in the discretion of the trial

court. Id. at 662, 137 S.E. at 493. While some authority in a

minority of jurisdictions supports the exclusion of evidence of

character established at a time other than the time of trial,

Wigmore on Evidence notes that the minority position is "wholly

incorrect on principle, because it is founded on a fallacious

analysis of the problem [and it is further] objectionable in

policy, because it excludes a class of evidence often meritorious

in itself and sometimes the sole kind that is available."

2 Wigmore on Evidence § 928 (Chadbourne rev. 1970).
1
"'On principle, the correct solution seems to be that prior
character at any time may be admitted, as being relevant to show
present character, . . . [t]he only limitation [being] . . . that
the character must not be so distant in time as to be void of
real probative value in showing present character . . . .'"
Brown, 147 Va. at 662, 137 S.E. at 493 (quoting 2 Wigmore on
Evidence § 928 (2d ed. 1923)).

5
 The trial court's error in this case is one of law. In

excluding the character evidence on the basis that it must

concern the place "where she lives or where she works," the trial

court applied the wrong standard to the evidence before it.

Our determination of whether the error is harmless is guided

by familiar principles. Non-constitutional error "is harmless

'[w]hen it plainly appears from the record and the evidence given

at the trial that the parties have had a fair trial on the merits

and substantial justice has been reached.'" Lavinder v.

Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991)

(en banc) (quoting Code § 8.01-678) (emphasis added in Lavinder).

Applying the standard articulated in Lavinder, we cannot say

that it plainly appears that appellant received a fair trial and

that substantial justice was achieved. First, the Commonwealth's

case rested in large measure on Starr's credibility. Second, the

defense specifically stated in its opening statement that they

intended to produce witnesses to establish the victim's bad

reputation for truth and veracity, evidence which they should

have been permitted to present. Finally, in her closing

argument, the attorney for the Commonwealth stated, over defense

objection, that the defense had promised to prove that the victim

had a bad reputation for truth and veracity and that the defense

had failed to do so. Accordingly, we find the error was not

harmless and, on that basis, we reverse appellant's conviction

and remand for a new trial, if the Commonwealth be so advised.

6
Although we reverse the conviction on this ground, we address the

remaining issues raised on appeal as they may arise upon retrial.

II.

Admissibility of Pornographic Material

Prior to trial, the trial court ruled admissible several

exhibits offered by the Commonwealth: three exhibits were

pornographic pictures involving children and two proposed

exhibits consisted of stories taken from the defendant's computer

portraying a fictional adult engaging in criminal and perverted

sex with a child. The Commonwealth ultimately sought the

admission of only one of the stories into evidence. The court

reasoned that the exhibits were probative of appellant's

lascivious intent in sexually assaulting Starr.
The Commonwealth also sought to have admitted a videotape

taken from appellant's computer containing twenty-four

pornographic pictures involving children. Three of the videotape

pictures duplicated the three already admitted in Exhibits 3, 4,

and 5. The court denied the motion, ruling that the prejudicial

effect of presenting the video to the jury in the Commonwealth's

case-in-chief outweighed its probative value. However, when

appellant denied during cross-examination that he had ever seen

the pornographic pictures taken from his computer, the court, on

its own motion and reasoning that appellant's response during

cross-examination put his credibility with respect to his

7
knowledge of the pictures in issue, allowed the Commonwealth to

play the videotape for the jury.

Appellant contends that the pornographic images and the

sexually explicit story were improperly admitted. Citing Brown

v. Commonwealth, 3 Va. App. 182, 348 S.E.2d 849 (1986), and

Bunting v. Commonwealth, 208 Va. 309, 157 S.E.2d 204 (1967),

appellant argues the pornographic materials were not relevant to

the determination of the intent at issue in the charged assault

and that they were more prejudicial than probative. He also

argues that the videotape, composed of similar material, was

improperly used for impeachment purposes. We agree with both
2
contentions.
As a general rule, "other crimes" evidence has no probative

value and is inadmissible. See Guill v. Commonwealth, __ Va. __,

__, __ S.E.2d __, __ (1998) (citing, inter alia, Kirkpatrick v.

Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802, 805 (1970));

Bottoms v. Commonwealth, 22 Va. App. 378, 383, 470 S.E.2d 153,

156 (1996) (citing Kirkpatrick, 211 Va. at 272, 176 S.E.2d at
805). However, "where the motive, intent, or knowledge of the

accused is at issue, evidence of other offenses is admissible if

it shows the conduct or attitude of the accused toward his

2
Appellant also contends that the acquisition of the
pornographic materials in question was too remote from the
alleged offense to be probative of the issue of intent. In light
of our holding that the pornographic materials were erroneously
admitted on the issue of appellant's intent, we do not address
this argument.

8
victim, establishes the relationship between the parties, or

negates the possibility of accident or mistake." Moore v.

Commonwealth, 222 Va. 72, 76, 278 S.E.2d 822, 824 (1981) (citing,

inter alia, Kirkpatrick, 211 Va. at 272, 176 S.E.2d at 805).

In order to prove the charge of aggravated sexual battery in

violation of Code § 18.2-67.3, the Commonwealth had to prove

beyond a reasonable doubt that appellant had "sexually abuse[d]

the complaining witness" and that "[t]he complaining witness is

less than thirteen years of age." "Sexual abuse" is "an act

committed with the intent to sexually molest, arouse, or gratify

any person, where . . . [t]he accused intentionally touches the

complaining witness' intimate parts." Code § 18.2-67.10(6).

"Intent is the purpose formed in a person's mind that may, and

often must, be inferred from the facts and circumstances in a

particular case." Ridley v. Commonwealth, 219 Va. 834, 836, 252

S.E.2d 313, 314 (1979); Jennings v. Commonwealth, 20 Va. App. 9,

17, 454 S.E.2d 752, 755 (citing Ridley, 219 Va. at 836, 252

S.E.2d at 314), aff'd, 21 Va. App. 328, 464 S.E.2d 179 (1995) (en
banc) (mem.).

The Commonwealth must prove each element of a charged

offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 315-16 (1979); Satterfield v. Commonwealth, 14 Va. App. 630,

636, 420 S.E.2d 228, 232 (1992) (en banc). That principle of

law, however, does not mean that the Commonwealth may always

offer other bad acts to prove the intent of defendants accused of

9
specific intent crimes. If the Commonwealth's burden to prove

intent were dispositive, "the general rule prohibiting

introduction of prior bad acts to show character would never

apply to specific intent crimes because intent would always be at

issue." State v. Ives, 927 P.2d 762, 770 (Ariz. 1996).

Appellant maintained at trial that the incident reported by

Starr never occurred. He introduced no evidence suggesting that

the alleged sexual abuse took place without the requisite intent,

or that the touching was the result of mistake or accident;

instead, he denied the incident altogether and presented an alibi

defense. The defense theory of the case did not relieve the

Commonwealth of its burden to prove the element of intent.
Estelle v. McGuire, 502 U.S. 62, 69 (1991); Essex v.

Commonwealth, 18 Va. App. 168, 172, 442 S.E.2d 707, 710 (1994)

(citing Pittman v. Commonwealth, 17 Va. App. 33, 35, 434 S.E.2d

694, 696 (1993)). However, the question before us is whether

"other crimes" evidence is admissible on the issue of intent when

intent is not genuinely in dispute. We hold that it is not

admissible.

In Hill v. Commonwealth, 17 Va. App. 480, 486, 438 S.E.2d
296, 300 (1993), this Court set forth the principle which

underlies our decision here:
The Commonwealth . . . argu[es] that when
intent is an element of the offense, prior
offenses should be admissible. Intent was at
issue here, as it is in most crimes.
Kirkpatrick, Boyd, Eccles, and Donahue, all
clearly indicate, however, that a significant
nexus must exist between intent and the

10
 charge at hand. That nexus must be greater
than a basic recitation of the fact that
intent is an element of the crime. To
conclude otherwise is to allow the exception
in Kirkpatrick to swallow the general rule.

In Hill, we held that admission of prior bad acts evidence was

reversible error because neither the Commonwealth's evidence nor

the evidence presented by the defense put the matter of intent in

controversy. 3 Id. at 487, 438 S.E.2d at 300; see also Reynolds

v. Commonwealth, 24 Va. App. 220, 225, 481 S.E.2d 479, 482 (1997)

(citing Foster v. Commonwealth, 5 Va. App. 316, 323, 362 S.E.2d
745, 749 (1987)); Tucker v. Commonwealth, 17 Va. App. 520,

523-24, 438 S.E.2d 492, 494 (1993); Foster, 5 Va. App. at 323,

362 S.E.2d at 749 (citing Henderson v. Commonwealth, 5 Va. App.

125, 129, 360 S.E.2d 876, 878 (1987)); Henderson, 5 Va. App. at

129, 360 S.E.2d at 878.

The position articulated by this Court in Hill represents

the decisional law of the majority of courts which have addressed
3
Jennings v. Commonwealth, 20 Va. App. 9, 454 S.E.2d 752,
aff'd, 21 Va. App. 328, 464 S.E.2d 179 (1995) (en banc) (mem.),
relied upon by the Commonwealth, is not to the contrary. In
Jennings, 20 Va. App. at 12, 454 S.E.2d at 753, the defendant was
accused of abduction with the intent to defile. The
Commonwealth's evidence showed that the defendant had tied a
child to a bed with the intent to anally rape him. It also
showed, through the testimony of the child who had been
victimized, that the defendant explained that his purpose in
tying the child to the bed was to punish him. Id. at 17, 454
S.E.2d at 756. Thus, the issue of intent was in genuine
controversy, and this Court found admissible the evidence of the
defendant's prior acts of sodomy. Consistent with the rule
explained in Hill, 17 Va. App. at 487, 438 S.E.2d at 300, the
evidence of "the prior offense was . . . necessary to show intent
in the context of the Commonwealth's other evidence."

11
the issue. See United States v. Jemal, 26 F.3d 1267, 1274 (3d

Cir. 1994); United States v. Jenkins, 7 F.3d 803, 807 (8th Cir.

1993); United States v. Hernandez, 975 F.2d 1035, 1040 (4th Cir.

1992); United States v. Ortiz, 857 F.2d 900, 904 (2d Cir. 1988);

State v. Ives, 927 P.2d 762, 770 (Ariz. 1996) (adopting Colon v.

United States, 880 F.2d 650, 657 (2d Cir. 1989)); Howard v.

United States, 663 A.2d 524, 528 n.6 (D.C. 1995) (citing, inter

alia, Pounds v. United States, 529 A.2d 791, 795 n.6 (D.C.

1986)); Christian-Hornaday v. State, 649 N.E.2d 669, 671 (Ind.
App. 1995) (citing Fisher v. State, 641 N.E.2d 105, 107 n.2 (Ind.

App. 1994)); Emory v. State, 647 A.2d 1243, 1254-55 (Md. Ct.

Spec. App. 1994); State v. Wallace, 943 S.W.2d 721, 724-25 (Mo.

Ct. App. 1997) (citing State v. Conley, 873 S.W.2d 233, 237 (Mo.

1994) (en banc)); State v. Jones, 899 P.2d 1139, 1142 (N.M. Ct.

App.), cert. granted, 898 P.2d 120 (N.M. 1995), cert. dismissed,

908 P.2d 750 (N.M. 1996); State v. Grubb, 675 N.E.2d 1353, 1356

(Ohio Ct. App. 1996); Johnson v. State, 932 S.W.2d 296, 302 (Tex.

Ct. App. 1996); see also 1 McCormick on Evidence 809-10 (4th ed.
1992) ("[T]he issue on which the other crimes evidence is said to

bear should be the subject of a genuine controversy. For

example, if the prosecution maintains that the other crime

reveals defendant's guilty state of mind, then his intent must be

disputed."). But see United States v. Mazzanti, 888 F.2d 1165,

1171 (7th Cir. 1989); State v. White, 538 N.W.2d 237, 244 (S.D.

1995).

12
 In appellant's trial, the "actual issue" was "'commission of

the act itself,'" rather than appellant's intent in committing

the act. Reynolds, 24 Va. App. at 225, 481 S.E.2d at 482

(quoting Foster, 5 Va. App. at 323, 362 S.E.2d at 749). Neither

the Commonwealth's evidence nor that developed by the appellant

puts the issue of intent in genuine dispute. Cf. Jennings, 20

Va. App. at 17-18, 454 S.E.2d at 756. The child pornography and

sexually explicit story were, on this ground, inadmissible to

prove appellant's intent. 4
Furthermore, where a defendant's intent is genuinely

uncontested, any nominal probative value will be easily

outweighed by the danger of prejudice. See Reynolds, 24 Va. App.

at 225, 481 S.E.2d at 481-82 (citing Foster, 5 Va. App. at

323-24, 362 S.E.2d at 748-49); Tucker, 17 Va. App. at 523-24, 438

S.E.2d at 494; see also United States v. Beechum, 582 F.2d 898,

914 (5th Cir. 1978) (en banc) ("If the defendant's intent is not

contested, then the incremental probative value of the extrinsic

offense is inconsequential when compared to its prejudice;

therefore, in this circumstance the evidence is uniformly

excluded."); State v. McGlew, 658 A.2d 1191, 1196 (N.H. 1995).

4
This case does not involve the use of other bad acts
evidence where the other acts are continuous and interwoven or
part of a series of related crimes. Cf. Wilkins v. Commonwealth,
18 Va. App. 293, 298-99, 443 S.E.2d 440, 443 (1994) (en banc).
Similarly, this case does not involve circumstances in which
intent may not be inferred from the unlawful act itself. Cf.
People v. Vargas, 666 N.E.2d 1357, 1358 (N.Y. 1996) (mem.);
Johnson, 932 S.W.2d at 302.

13
Since the issue of intent was not genuinely in dispute in this

case, the probative value of the child pornography evidence was

clearly outweighed by its prejudicial effect; the tendency of the

child pornography and sexually explicit story to divert the jury

and inject extraneous considerations into the fact-finding

process, as well as the inherently inflammatory character of the

evidence, was clear. Given the nature of the sexually explicit

materials, the risk was great that the jury might consider the

unpunished possession of the materials in arriving at their

verdict. See Tucker, 17 Va. App. at 524, 438 S.E.2d at 494.

Indeed, as the trial court noted in its initial ruling excluding

the videotape evidence, admission of the sexually explicit

materials "runs the risk of turning an aggravated sexual battery

trial into a child pornography trial."

"'The admissibility of evidence is within the broad

discretion of the trial court, and a ruling will not be disturbed

on appeal in the absence of an abuse of discretion.'" Bottoms,

22 Va. App. at 384, 470 S.E.2d at 156 (quoting Blain v.
Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988)).

Because the issue of intent was not genuinely in dispute, we find

the admission of the child pornography and story on the issue of

appellant's intent to be an abuse of discretion. 5

5
We address this evidence only in the context in which it
arose in the first trial. If, on retrial, appellant claimed
accident or mistake, the evidence would be admissible, as the
issue of intent would be genuinely in dispute.

14
 We also agree with appellant that the videotape was

improperly shown to the jury. The trial court, reversing its

earlier ruling excluding the videotape on the ground its

prejudicial effect outweighed any probative value it might have,

allowed the prosecution to play the videotape to the jury to

impeach appellant's denial of any knowledge of the pictures

comprising the Commonwealth's child pornography exhibits and

their presence on his computer. The Commonwealth's child

pornography exhibits were part of the videotape compilation of

pictures. The court reasoned that the jury should properly

evaluate appellant's denial in light of the number of pictures

found on appellant's computer, twenty-four of which were included

in the videotape exhibit.
We find the admission of the videotape to be erroneous on

the ground that a witness may not be cross-examined on a

collateral subject. 6 If the witness answers a question on a

collateral issue, the answer is conclusive and may not be

contradicted with further evidence. Simpson v. Commonwealth, 13

Va. App. 604, 607, 414 S.E.2d 407, 409 (1992) (citing Seilheimer

v. Melville, 224 Va. 323, 326, 295 S.E.2d 896, 898 (1982)).

6
As the Commonwealth notes, appellant failed to object to
the Commonwealth's question which became the predicate for the
court's ruling on the admissibility of the videotape for
impeachment purposes. This failure to object, however, does not
bar appellant from appealing the introduction of the material
used to impeach him on the collateral matter. Simpson v.
Commonwealth, 13 Va. App. 604, 607-08, 414 S.E.2d 407, 409
(1992).

15
"'The test as to whether a matter is material or collateral, in

the matter of impeachment of a witness, is whether or not the

cross-examining party would be entitled to prove it in support of

his case.'" Williams v. Commonwealth, 16 Va. App. 928, 935, 434

S.E.2d 343, 347 (1993) (quoting Allen v. Commonwealth, 122 Va.

834, 842, 94 S.E. 783, 786 (1918)). Because we hold that the

Commonwealth could not introduce the child pornography evidence

in its case-in-chief, the videotape is impeachment evidence on a

collateral matter and should not have been shown to the jury. 7
III.

Admissibility of Hearsay Testimony

On direct examination, Starr testified that, in 1992, she

told her husband she had been "sexually abused". Starr also

testified that, in a subsequent conversation the same year, she

told her husband that appellant "was the individual whom I had

things to work out with." As appellant contends, Starr's

statements given during her direct examination constituted

hearsay and were erroneously admitted. See Haycox v. Dunn, 200

Va. 212, 227, 104 S.E.2d 800, 809-10 (1958); 2 Charles E. Friend,

The Law of Evidence in Virginia § 18-4 (4th ed. 1993).

However, we reject appellant's contention that the testimony

of Starr's husband regarding Starr's report to him about the

assault and the identity of the perpetrator was erroneously
7
In light of our reversal and remand of this case on the
issue of reputation evidence, we will not undertake harmless
error analysis of other errors.

16
admitted hearsay. Lance Curtis Starr, Starr's husband, testified

over appellant's objection that, on one occasion in 1992, Starr

told him she had been molested. He also testified that his wife,

on a separate occasion, identified appellant as the person who

had assaulted her. The testimony of Starr's husband was properly

admitted. His testimony was elicited after appellant

cross-examined Starr and attacked her testimony as a story of

recent fabrication, impelled by her desire to become involved in

the appellant's Internet pornography case.
In Faison v. Hudson, 243 Va. 397, 404-05, 417 S.E.2d 305,

309 (1992) (quoting Honaker Lumber Co. v. Kiser, 134 Va. 50, 60,

113 S.E. 718, 721 (1922)):

"Where a witness has been assailed on the
ground that [her] story is a recent
fabrication, or that [she] has some motive to
testifying falsely, proof that [she] gave a
similar account of the transaction when the
motive did not exist, before the effect of
such an account could be foreseen or motives
of interest would have induced a different
statement, is admissible."

Appellant first suggested in his opening statement that

Starr had fabricated the charge "in order to get involved in [the

publicity of the Internet] case" and because she was "infatuated"

with appellant. Subsequently, during cross-examination, Starr

was questioned about her motives to fabricate the charge.

Accordingly, we find that the trial court did not abuse its

discretion in admitting the statements made by Starr's husband. 8
8
Appellant contended both at trial and on appeal that

17
 IV.

Admissibility of Statements Obtained in Violation of Miranda

Appellant contends the trial court erred in permitting the

Commonwealth to cross-examine him with respect to certain

statements he made before being informed of his rights as

required by Miranda v. Arizona, 384 U.S. 436 (1966). Appellant

made a statement when he was taken before the magistrate after

his arrest on the pornography charges. According to an officer

present at the time, in response to the magistrate's question,

"what [is] this . . . all about?", appellant answered:
he liked young-looking girls and he liked
pictures of them and he also said that he
gets pictures of young-looking girls over his
computer and he looks at some of them and he
reroutes others.

This statement was suppressed prior to trial. However, the

court limited the ruling to the Commonwealth's case-in-chief,

Starr's statements and those of her husband were not "recent" and
were therefore erroneously admitted in violation of Code
§ 19.2-268.2. Code § 19.2-268.2 provides:

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.

Because we resolve the evidentiary question on other grounds, we
do not reach the contention that admitting the statements
violated the statute.

18
stating, "I might consider it different as a cross-examination or

impeachment issue."

The Commonwealth contends the substance of the statement

was never made the subject of the cross-examination. 9 Assuming

without deciding the statement's substance is implicated by the

question posed, we find appellant's argument is lacking merit.

See Harris v. New York, 401 U.S. 222, 226 (1971) (holding that a

statement obtained from a defendant in violation of Miranda can

be used by the government in cross-examination or rebuttal to

impeach the defendant's credibility if he or she chooses to

testify). Appellant's further contention that such statements

are permitted during cross-examination only when a defendant has

made "sweeping denials of the matter contained in the suppressed

statements on direct examination" is likewise without merit. See

Harris, 401 U.S. at 223 (allowing use of suppressed statements to

impeach a defendant whose trial testimony "partially

contradicted" his prior statements); Jones v. Commonwealth, 228

Va. 427, 441, 323 S.E.2d 554, 561 (1984) (explaining that the

Commonwealth may impeach a defendant's inconsistent testimony

with suppressed statements).

Appellant's challenge to a statement he made to Detective
10
Smith, made before Miranda warnings were given, is likewise
9
When appellant denied any knowledge of the pornographic
materials on his computer, the Commonwealth's attorney asked,
"Well, you have admitted that you like to look at pictures of
young girls, isn't that correct?" Appellant answered, "No, sir."
10
During her cross-examination of the appellant, the

19
without merit as it was also properly the subject of

cross-examination. 11

V.

Jury Instructions

Appellant cites as error the court's refusal to give five of

his instructions and the court's acceptance of one of the

Commonwealth's instructions. 12 Defense instructions L, M, and E

would have advised the jury that to convict the appellant on the

charge, the Commonwealth had to prove beyond a reasonable doubt

the victim was under the age of thirteen when assaulted. The
13
jury was, in fact, duly instructed as to the age requirement.
prosecutor asked him if he recalled "a detective who said to you
that he was looking for child pornography." The appellant
answered, "No, ma'am." She then impeached appellant with the
answer appellant gave to Detective Smith, to the effect that he
would "find things on the computer, but they are just fantasy."
11
Appellant also contends he was wrongfully denied a hearing
on whether the statement to Detective Smith should be suppressed
on the ground it was made before he received Miranda warnings,
citing Stockton v. Commonwealth, 227 Va. 124, 314 S.E.2d 371
(1986), habeas corpus granted, 852 F.2d 740 (4th Cir. 1988).
However, the failure to give appellant his Miranda warnings was
never in dispute; the point was conceded by the prosecutor and
accepted as established by the court, obviating the need for a
hearing on the matter.
12
Appellant contends the trial judge erred in granting one of
the Commonwealth's instructions on the ground it "singled out for
special emphasis a part of the evidence tending to establish a
particular fact." This instruction addressed the child
pornography evidence. In light of our decision regarding the
propriety of admitting the videotape evidence, we do not address
this question.
13
The court instructed the jury that, "The Commonwealth must
prove beyond a reasonable doubt . . . that Jana Starr . . . was
less than 13 years of age."

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Accordingly, the trial court did not err in refusing the

proffered defense instructions. See Cardwell v. Commonwealth,

248 Va. 501, 514, 450 S.E.2d 146, 154 (1994) (explaining that a

court is not obligated to grant duplicative instructions).

Defense instruction D sought to define reasonable doubt to

the jury. Appellant concedes, however, that this Court, as well

as the Supreme Court of Virginia, has consistently "discouraged

trial courts from attempting to define reasonable doubt to the

jury." See, e.g., Strawderman v. Commonwealth, 200 Va. 855, 858,

108 S.E.2d 376, 379 (1989); Cooper v. Commonwealth, 2 Va. App.

497, 500, 345 S.E.2d 775, 777 (1986) (quoting Strawderman, 200

Va. at 858, 108 S.E.2d at 379). The trial court did not err in

rejecting the proffered instruction.

Appellant tendered three instructions addressing the alibi

defense. The court granted one of the three proffered

instructions. 14 On appeal, appellant contends the court erred in

failing to instruct the jury that he did not bear the burden to
15
prove his alibi. Contrary to appellant's contention, the court
14
The alibi instruction as given reads:

The defendant relies upon the alibi, the
defense of alibi, namely, that he was not
present at the time and place the alleged
offense was committed. If after
consideration of all the evidence you have a
reasonable doubt that the defendant was
present at the time and place of [sic] the
alleged offense was committed, you shall find
him not guilty.
15
The proffered defense instruction reads:

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fully instructed the jury on the defense of alibi, and informed

the jury that the Commonwealth bore the burden of proof beyond a

reasonable doubt. In addition, the court specifically instructed

the jury that appellant bore no burden to produce any evidence.

Read as a whole, the instructions clearly conveyed to the jury

each principle of law offered by appellant. See Rollston v.

Commonwealth, 11 Va. App. 535, 541, 399 S.E.2d 823, 826 (1991)

(explaining that jury instructions must be read as a whole).

Because the defense instruction was cumulative, it was neither

necessary nor required. Cardwell, 248 Va. at 514, 450 S.E.2d at

154; see also Crabbe v. Commonwealth, 221 Va. 419, 421, 270

S.E.2d 727, 728 (1980) (per curiam) (holding that an alibi

instruction is unnecessary where the court instructs the jury on

the elements of a crime and the burden of proof).

The appellant's conviction is reversed and remanded for a

new trial, if the Commonwealth be so advised.

Reversed and remanded.

The jury is instructed that the burden of
proving alibi rests on the defendant.
However, the jury is instructed that the
defendant need not prove the alibi beyond a
reasonable doubt, or even by a preponderance
of the evidence. The defendant must only
introduce evidence, which, considered with
the whole evidence, creates a reasonable
doubt of his guilt.

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