COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Bumgardner
Argued at Salem, Virginia
JAMES EDWARD HORSLEY
MEMORANDUM OPINION * BY
v. Record No. 2925-97-3 JUDGE JERE M. H. WILLIS, JR.
DECEMBER 22, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Richard S. Miller, Judge
Craig P. Tiller (Davidson, Sakolosky &
Moseley, P.C., on briefs), for appellant.
Daniel J. Munroe, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
On appeal from his conviction for two counts of rape, in
violation of Code § 18.2-61, and one count of taking indecent
liberties with a minor while in a custodial or supervisory
relationship, in violation of Code § 18.2-370.1, James Edward
Horsley contends that the trial court erred in excluding evidence
of a statement by the complaining witness concerning prior sexual
conduct between the complaining witness and a third party.
Because Horsley failed to proffer the statement sufficiently, we
affirm the judgment of the trial court.
Horsley cared for the victim child while her mother was
incarcerated. The child reported multiple instances of sexual
assault by Horsley. A medical examination revealed evidence of
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
repeated sexual penetration and disclosed that the child had
contracted trichomoniasis, a sexually transmitted disease.
At an evidentiary hearing under Code § 18.2-67.7, the rape
shield statute, Horsley sought to introduce evidence that he
contended would "provide an alternative explanation for physical
evidence of physical injury to the complaining witness's intimate
parts." See Code § 18.2-67.7. At the hearing, Horsley sought to
introduce evidence that the child had complained of an incident
involving a young male neighbor. He contended that the
statement, given just after the alleged incident occurred, was an
excited utterance. The trial court rejected the statement,
ruling that it was hearsay. Horsley contends on appeal that the
statement sought was admissible as an excited utterance and that
it would have explained the medical finding that the victim had
been sexually penetrated. Because we cannot determine that the
evidence sought would have satisfied the admissibility
requirements of the rape shield statute, we affirm the trial
court's refusal to admit that statement into evidence.
II. INSUFFICIENT PROFFER OF STATEMENTS
When asked to proffer the statement to the trial court,
Horsley's counsel stated:
Judge, what I think the witness would say
would be to rebut what Quanisha just
testified to. I think that she would testify
that the girl ran in and made a statement to
her that they were under the porch and that
the boy was having some contact with her,
more than what she described with the clothes
fully on.
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The rape shield statute is specific in its exceptions.
Horsley's proffer failed to demonstrate that the statement would
have explained the medical finding that the victim had been
sexually penetrated. Without knowing what the witness would have
said, we cannot rule that the evidence sought would have fit
within an exception to the statute.
"'When [witness examination] is limited by the court and the
accused challenges the court's ruling on appeal, he or she must
make a proper proffer of the excluded testimony,'" McGann v.
Commonwealth, 15 Va. App. 448, 451, 424 S.E.2d 706, 708 (1992)
(quoting Stewart v. Commonwealth, 10 Va. App. 563, 568, 394
S.E.2d 509, 512 (1990)), "otherwise, the appellate court has no
means of determining if the evidence is material or . . .
admissible." Speller v. Commonwealth, 2 Va. App. 437, 440, 345
S.E.2d 542, 545 (1986) (citation omitted). Thus, we "will not
consider an error assigned to the rejection of testimony unless
such testimony has been . . . made a part of the record." Id.
(citing Whittaker v. Commonwealth, 217 Va. 966, 969, 234 S.E.2d
79, 81 (1977); see also Owens v. Commonwealth, 147 Va. 624, 631,
136 S.E. 765, 767 (1927).
Horsley's proffer was unclear and insufficient. It made no
showing that the testimony sought was admissible under Code
§ 18.2-67.7. We decline Horsley's invitation to find error upon
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speculation that the witness' testimony would have been
admissible under the exceptions to the rape shield statute.
Accordingly, we affirm the judgment of the trial court.
Affirmed.
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