COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Humphreys and Clements
Argued at Alexandria, Virginia
DAVID YARBOROUGH
MEMORANDUM OPINION* BY
v. Record No. 0352-03-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
MARCH 2, 2004
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Paul F. Sheridan, Judge
Matthew T. Foley for appellant.
Virginia B. Theisen, Assistant Attorney General (Jerry W. Kilgore,
Attorney General, on brief), for appellee.
David Yarborough (appellant) was convicted in a jury trial of aggravated sexual battery,
in violation of Code § 18.2-67.3. Appellant contends the trial court erred in preliminarily
instructing the jury before the close of the Commonwealth’s case that the victim’s prior
inconsistent statements could not be used as extrinsic evidence. We affirm the trial court and
remand for the correction of a clerical error.
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 that evidence all
reasonable inferences fairly deducible therefrom. See Juares v. Commonwealth, 26 Va. App.
154, 156, 493 S.E.2d 677, 678 (1997).
* Pursuant to Code § 17.1-413, this opinion is not designated for publication.
So viewed, the evidence established that the sexual battery occurred sometime in
December 1997. At that time, the victim, A.W., her mother, her mother’s boyfriend and
appellant shared a one-bedroom apartment in Arlington County. A.W.’s mother and her
mother’s boyfriend were asleep in the bedroom, and A.W. and appellant were in the living room
watching television. A.W. said appellant called her over to the couch, licked her ear and grabbed
her. He took off his clothes and her clothes, rubbed her and touched her genitals. A.W. testified
she told appellant to stop and tried to get up, but appellant was too strong. She finally stopped
appellant by kicking him.
A.W. was seven years old at the time of the battery and ten years old at the time of the
trial in February 2001. She testified at the preliminary hearing and trial. Appellant’s counsel did
not have a court reporter present at the preliminary hearing; however, he made an audiotape that
he later used as the basis for his cross-examination of A.W. As he questioned A.W., he drew her
attention to her prior answers at the preliminary hearing and asked if she remembered making
them. She denied some of her answers and stated she did not remember others.
At the lunch break, a juror sent a note to the trial judge. The note said, “Judge, [s]hould I
take the information read from the first hearing as fact? The defendant’s lawyer is reading this
court document but I’m not sure if this is a deposition, evidence, or an exhibit.” (Emphasis in
the original). The following colloquy then occurred outside the presence of the jury in response
to the juror’s question:
[Appellant’s Counsel]: Judge, there is an instruction that deals
with prior inconsistent statements of witnesses. You might just
want to tell them that will be dealt with in the instructions from the
Court. And I did include that instruction in my group.
[Judge]: Interesting procedural point. She didn’t acknowledge
saying those things. She denied saying them. Are they in
evidence?
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[Appellant’s Counsel]: They are in evidence through my statement
of the - - went through a preliminary hearing.
[Judge]: How can that be?
[Appellant’s Counsel]: Well, Judge, I am assuming that if the
representations were not as made by me, in the preliminary
hearing, the Commonwealth attorney would have objected.
[Judge]: [Appellant’s Counsel], you and I are talking about two
different things.
[Appellant’s Counsel]: Oh, I’m sorry, Judge.
[Judge]: When you ask a question did you say on a previous
occasion A, B and C and the witness says no, you are supposed to
be able to prove they did. How have you proven that she did?
There is no evidence that she said what is in that transcript.
[Appellant’s Counsel]: Well, Judge, I can only think of two ways
of doing it, one to offer the transcript of the --
[Judge]: Or the reporter.
[Commonwealth’s attorney]: Well, it wasn’t a live reporter.
[Judge]: It’s a tape?
[Appellant’s Counsel]: It’s a tape.
[Judge]: Then we have a procedural problem. Is it in evidence at
all? She says she didn’t say it.
[Appellant’s Counsel] Right.
[Judge]: I’m going to tell them to . . . look to the instructions
because the instructions talk about prior inconsistent statements,
but the jurors have already picked up on the fact that you were
quoting from a document. That document is not in evidence, and
it’s -- his or her question points out they don’t know whether it’s a
deposition, an exhibit, evidence. Where is the instruction on prior
statements?
[Appellant’s Counsel]: It’s in there, Judge. It’s in my stack, mine
or the Commonwealth’s. One on prior inconsistent statements of
witnesses.
[Judge]: It’s not boiler plate A.
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[Appellant’s Counsel]: It’s in instruction E. It’s the model
instruction.
[Judge]: I’ll give it, A, and E can deal with it, but basically it’s an
interesting evidentiary point. Those statements are not in evidence
unless she says she said them or somebody else says she said them.
I’ll tell them when they come in.
[Appellant’s Counsel]: Judge, it creates a --
[Judge]: I’m going to leave it where it is.
[Appellant’s Counsel]: Just for the record, Judge, it might create a
difficult problem for court appointed attorneys who cannot get a
court reporter for a hearing and who tape a hearing. Now, I have
the tape.
[Judge]: The policy problems that might arise in a broad sweeping
way do not govern the immediate moment of evidence
inadmissibility.
[Appellant’s Counsel]: I understand.
[Judge]: Her statements through her are denied. Therefore, there
is no evidence that she made those statements, but I’m going to
leave it in the posture as presently seeded in the instructions.
When the jury returned, the judge responded to the juror’s question as follows:
The earlier instruction was that the words of the witness are the
evidence, not the words of counsel.
There is no evidence before you as to what that document is.
The concept of prior inconsistent statements is a part of the
credibility argument people make, but technically there is no
evidence in because the witness said in part, where he was reading
certain things, I didn’t say that.
So, it is not for your present purposes a court document. You
aren’t to speculate on what it is. And in terms of the instructions it
will come to you later on how you resolve credibility.
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Counsel made no further objections. At the conclusion of the evidence, the trial court
gave the requested instructions concerning the credibility of witnesses and prior inconsistent
statements.1
The jury returned a verdict of guilty,2 and appellant was sentenced to five years
incarceration and a $5,000 fine. Appellant appeals that conviction.
II.
Appellant failed to present the argument to the trial court that he now raises on appeal
and did not object to the trial court’s mid-trial ruling. “[The Supreme Court of Virginia has]
repeatedly and consistently held that a litigant must object to a ruling of the circuit court if that
1
At the close of the evidence, the trial judge gave the jury the following instructions:
You are the judges of the facts, the credibility of the
witnesses, and the weight of the evidence.
You may consider the appearance and manner of the
witnesses on the stand, their intelligence, their opportunity for
knowing the truth and for having observed the things about which
they testified, their interest in the outcome of the case, their bias,
and if any have been shown, their prior inconsistent statements or
whether they have knowingly testified untruthfully as to any
material fact in the case.
You may not arbitrarily disregard believable testimony of a
witness.
However, after you have considered all of the evidence in
the case, then you may accept or discard all or part of the
testimony of a witness as you think proper.
* * * * * * *
. . . If you believe from the evidence that a witness
previously made a statement inconsistent with his testimony at this
trial, the only purpose for which that statement may be considered
by you is its bearing on the witness’s credibility.
It is not evidence that what the witness previously said is true.
2
The sentencing order states the appellant pled guilty to the charge. This is a clerical
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litigant desires to challenge the ruling upon appeal.” Commonwealth v. Washington, 263 Va.
298, 304, 559 S.E.2d 636, 639 (2002). A defendant cannot tacitly consent to a ruling and later
use that as a basis for objection. See id. at 306, 559 S.E.2d at 640. We have long held that we
will not consider an argument on appeal that was not presented to the trial court. See Jacques v.
Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991) (citing Rule 5A:18). “The
main purpose of requiring timely specific objections is to afford the trial court an opportunity to
rule intelligently on the issues presented, thus avoiding unnecessary appeals and reversals.”
Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991) (citation omitted).
Accordingly, appellant’s argument is barred by Rule 5A:18 because it was not raised in the
circuit court, providing us no ruling to review on appeal. See Ohree v. Commonwealth, 26
Va. App. 299, 307-08, 494 S.E.2d 484, 488 (1998); Fisher v. Commonwealth, 16 Va. App. 447,
454, 431 S.E.2d 886, 890 (1993).
Further, the ends of justice do not require us to address these issues. “[T]he ends of
justice exception is narrow and is to be used sparingly . . . . The trial error must be clear,
substantial and material.” Redman v. Commonwealth, 25 Va. App. 215, 220-21, 487 S.E.2d
269, 272 (1997) (internal quotations and citations omitted). “[To invoke the ends of justice
exception to Rule 5A:18, the record] must affirmatively show that a miscarriage of justice has
occurred, not that a miscarriage might have occurred.” Id. at 221, 487 S.E.2d at 272 (internal
quotations and citations omitted).
In the instant case, the record shows appellant’s counsel made no objection to the trial
judge’s comments to the jury. The concept of prior inconsistent statements is part of a credibility
argument. Technically there is no evidence before the trier of fact when a witness answers a
question by responding “I didn’t say that.” When appellant’s counsel stated the Commonwealth
error and should be corrected upon remand.
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had not objected to his reading of the victim’s answers into evidence, the trial judge said, “you
and I are talking about two different things.” Appellant’s counsel apologized, and the colloquy
continued regarding the appropriate instruction for the jury. The argument made by appellant
was that the trial court’s ruling “might create a difficult problem for court appointed attorneys
who cannot get a court reporter for a hearing and who tape a hearing.” The trial court in
response stated that this “policy” issue is distinct from the issue of admissibility. This “policy”
issue is not the basis of appellant’s contention of error on appeal. He made no proffer of the
hearing transcript and allowed the judge to respond to the juror’s question without objection.
The jury was properly instructed on the use of prior inconsistent statements at the close of all the
evidence. The record fails to disclose anything that would allow us to invoke the ends of justice
exception to Rule 5A:18.
For the foregoing reasons, we affirm appellant’s conviction and remand for correction of
the clerical error.
Affirmed and remanded.
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David Yarborough v. Commonwealth of Virginia
Combined Opinion