COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Annunziata
Argued at Norfolk, Virginia
WILLIAM ANTHONY BOOKER
MEMORANDUM OPINION * BY
v. Record No. 1603-98-1 JUDGE RICHARD S. BRAY
AUGUST 3, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Christopher W. Hutton, Judge
Charles E. Haden for appellant.
Jeffrey S. Shapiro, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
William Anthony Booker (defendant) was convicted in a bench
trial of rape, two counts of inanimate object penetration and
four counts of forcible sodomy. 1 On appeal, defendant complains
that the trial court erroneously (1) denied his motion to
restrict the Commonwealth’s evidence to offenses committed on
dates specified in response to a bill of particulars, (2)
admitted hearsay evidence, and (3) found the evidence sufficient
to support the convictions. Finding no error, we affirm the
trial court.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
1
Defendant’s forcible sodomy convictions are not subject of
this appeal.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
I.
Defendant first contends that he did not have “clear
notification of the offense with which he was charged” because
the trial court failed to limit the Commonwealth’s proof to
offense dates specified in response to the bill of particulars.
It is uncontroverted that the initial indictments charging
defendant with the commission of the subject offenses, “on or
about June 11 and June 23,” 1996, were subsequently amended to
allege offense dates, “on or about June 1 - 30, 1996.” In
response to defendant’s bill of particulars, the Commonwealth
specified that the crimes occurred “on or about” June 11 and
June 23, 1996. The trial court, however, denied defendant’s
pretrial motion to limit the Commonwealth’s evidence to offenses
committed on the disputed dates.
During trial, the victim testified that the offenses
occurred while she was in the second grade at school, 2 “in the
nighttime when [her mother] was at work,” adding, “I think it
was June . . . summertime.” The victim reported the incidents
to her mother on June 28, 1996, and recalled that the most
recent had occurred within the month.
2
She also testified that school ended for summer recess on
“the 20th of June.”
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Defendant moved to strike the evidence both at the
conclusion of the Commonwealth’s case and at the conclusion of
the trial, arguing that the evidence did not establish that the
offenses occurred on the dates specified in response to his bill
of particulars. In denying the motion, the trial court noted:
We know that these events occurred while
[the victim] was in second grade, . . . from
September of 1995, through June of ‘96. And
. . . while the mother worked at Wendy’s,
which was October of ‘95, until sometime
after the complaint. There was indication
that they occurred during a summer month, of
which June is at least a portion. There was
some indication . . . from the witness that
it actually did occur in June. So that
narrows it down. And, additionally, we have
the response that while these events
occurred a long time before the complaint
was made, that was qualified . . . to within
a month. Based on the Court's feeling about
the credibility of the [victim] . . ., and
. . . all of those things together and
narrowing the timeline, the Court is
convinced beyond a reasonable doubt that
these events did occur within the time
period alleged in the indictment . . . .
Code § 19.2-220 provides, in pertinent part, that an
“indictment . . . shall be a plain, concise and definite written
statement, . . . (4) reciting that the accused committed the
offense on or about a certain date.” “No indictment or other
accusation shall be quashed or deemed invalid: . . . (6) For
omitting to state, or stating imperfectly, the time at which the
offense was committed when time is not the essence of the
offense.” Code § 19.2-226; see Marlowe v. Commonwealth, 2 Va.
App. 619, 622, 347 S.E.2d 167, 169 (1986). Thus, “the use of
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the term ‘on or about’ in the indictment [for such offenses] is
consistent” with statute, Marlowe, 2 Va. App. at 625, 347 S.E.2d
at 171, and “the Commonwealth may . . . prove a date other than
that alleged, if the date is not of the essence of the offense
or not shown to be significant.” Id. at 622, 347 S.E.2d at 169
(citations omitted); see Code § 19.2-226(6).
Code § 19.2-230 permits the trial court to “direct the
filing of a bill of particulars at any time before trial.” Code
§ 19.2-230. “‘The purpose of a bill of particulars is to state
sufficient facts regarding the crime to inform an accused in
advance of the offense for which he is to be tried. He is
entitled to no more.’” Swisher v. Commonwealth, 256 Va. 471,
480, 506 S.E.2d 763, 768 (1998) (citations omitted). The bill
is relief available to an accused, at the discretion of the
court, to supplement an indictment which fails to “‘fully and
clearly set forth all the material elements of the offense,’”
but not “to expand the scope of discovery in a criminal case.”
Sims v. Commonwealth, 28 Va. App. 611, 619-20, 507 S.E.2d 648,
652-53 (1998) (citations omitted). Hence, the import of time to
an offense ordinarily is of no greater significance in a bill of
particulars than in an indictment.
Here, time was not an element of the offenses, and both the
indictments and the Commonwealth’s response to the bill of
particulars sufficiently informed defendant of the relevant
offense dates. Moreover, the evidence supports the trial
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court’s finding that the crimes occurred in June, 1996, clearly
within the period embraced both in the indictments and the
response. Hence, the trial court properly denied defendant’s
motion to limit the Commonwealth’s proof and correctly overruled
his later motions to strike.
II.
Defendant next contends that the trial court erroneously
permitted witnesses to recount the victim’s statements relative
to the subject offenses. He argues that such testimony was
inadmissible hearsay, because “the . . . statements were not an
outcry and were not recent.”
Code § 19.2-268.2 provides that, “in any prosecution for
criminal sexual assault . . ., 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.” “However, only the fact of the
complaint and not the details given therein may be admitted, but
the scope of admission rests with the sound discretion of the
trial court.” Woodard v. Commonwealth, 19 Va. App. 24, 27, 448
S.E.2d 328, 330 (1994) (citations omitted).
The “‘only time requirement is that the complaint have been
made without delay which is unexplained or is inconsistent with
the occurrence of the offense.’” Id. (citations omitted). “The
initial determination of timeliness under the recent complaint
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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. (citations omitted).
Here, the victim reported to her mother on June 28, 1996,
that defendant “had been touching her on her private parts.”
She was immediately taken to the emergency room and examined by
a pediatrician, who noted that the victim “made a specific
complaint, a red and yellow cord had been put in her private
parts, and that . . . [defendant] placed his penis in her
private part.” At trial, the victim testified that she did not
immediately report the incidents to her mother because defendant
“threatened [her] not to tell nobody . . . [and] he said if
[she] tell anybody, something bad was going to happen.” Thus,
the content of the complaint was clearly embraced by the
statute, and the delayed “outcry” explained by a “common
circumstance[] surrounding sexual assault on minors[,] . . .
threat of further harm from the assailant.” Woodard, 19 Va.
App. at 28, 448 S.E.2d at 330. Accordingly, the court properly
admitted the statements into evidence.
III.
Finally, defendant argues that the evidence was
insufficient to establish penetration, an indispensable element
of the subject crimes. When the sufficiency of the evidence is
challenged on appeal, we must review the evidence in the light
most favorable to the Commonwealth, and will disturb a verdict
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only if plainly wrong or without evidence to support it. See
Code § 8.01-680; Martin v. Commonwealth, 4 Va. App. 438, 443,
358 S.E.2d 415, 418 (1987). The credibility of the witnesses,
the weight accorded testimony, and the inferences to be drawn
from proven facts are matters to be determined by the fact
finder. See Long v. Commonwealth, 8 Va. App. 194, 199, 379
S.E.2d 473, 476 (1989).
The victim testified that defendant “stuck his private
parts in my private part.” Upon further questioning, she
specified that defendant “st[u]ck his penis . . . [i]n my
vagina,” and “it hurted . . . felt like something was in it.”
She recalled that defendant “stuck [a] sponge curler in [her]
butthole,” explaining to her that he was “seeing how deep [it]
is.” She was certain that defendant “was able to put it in
. . . [b]ecause [she] felt it . . . [and] it was hurting real
bad.” The victim also testified that defendant “took [his
index] finger, and he stuck that in [her] butthole.” She was
aware “it was actually going in . . . [b]ecause [she] felt the
nail, and it felt like . . . [she] had to use the bathroom.”
Similarly, when defendant “stuck [a VCR cord] in [the victim’s]
vagina,” she “felt it” “going inside,” and “[i]t hurted.”
“Under settled principles of law, the child’s testimony
alone, if believed by the [fact finder], [is] sufficient to
support [defendant’s] conviction, even in the absence of
corroborating physical or testimonial evidence.” Love v.
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Commonwealth, 18 Va. App. 84, 90, 441 S.E.2d 709, 713 (1994)
(citations omitted). The penetration necessary to establish
object sexual penetration and rape, “need be only slight.” Jett
v. Commonwealth, 29 Va. App. 190, 194, 510 S.E.2d 747, 749
(1998) (en banc) (citations and internal quotations omitted).
Contrary to defendant’s contention, such evidence in the instant
record was not rendered incredible either by the testimony of
physicians or human experience. Clearly, therefore, the
testimony of the victim, together with other evidence, was
sufficient to establish the requisite penetration.
Accordingly, we affirm the convictions.
Affirmed.
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William Anthony Booker v. Commonwealth of Virginia
Combined Opinion