COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Elder and Fitzpatrick
Argued at Richmond, Virginia
WALTER LYNN SIMMONS
v. Record No. 1782-94-2 MEMORANDUM OPINION * BY
CHIEF JUDGE NORMAN K. MOON
COMMONWEALTH OF VIRGINIA DECEMBER 29, 1995
FROM THE CIRCUIT COURT OF HENRICO COUNTY
James E. Kulp, Judge
Craig S. Cooley for appellant.
Marla Graff Decker, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Walter Lynn Simmons appeals his conviction for the rape of
Leticia Laster on April 16, 1994. He claims that the evidence
was insufficient to support the conviction and that the trial
judge erred in excluding testimony concerning the victim's
reputation for truthfulness. We find that the evidence was
sufficient and that the trial judge was correct in excluding the
evidence, and therefore affirm.
The victim in this case was Mr. Simmons' eleven-year-old
stepdaughter. The rape occurred at Simmons' home while his wife,
the victim's mother, was visiting family in New York. Simmons
was convicted based on the testimony of the victim, who gave a
detailed account of the rape. The victim told her mother about
the rape a few days after it occurred, and her mother informed
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Simmons' sister. Both women testified about Simmons' statements
concerning his contact with the victim, and this testimony
corroborated the victim's account. The nurse who examined the
victim provided corroborating physical evidence. The jury
acquitted the defendant of an additional count of rape and of
attempted sodomy.
When a defendant challenges the sufficiency of the evidence,
we view the evidence "in the light most favorable to the
Commonwealth and give it all reasonable inferences fairly
deducible therefrom. We should affirm the judgment unless it
appears from the evidence that the judgment is plainly wrong or
without evidence to support it." Higginbotham v. Commonwealth,
216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
The credibility of the witnesses and the weight accorded
their testimony are matters exclusively for the jury. Gray v.
Commonwealth, 233 Va. 313, 344, 356 S.E.2d 157, 174 (1985); Myers
v. Commonwealth, 11 Va. App. 634, 635, 400 S.E.2d 803, 804
(1991). It is the jury's function to weigh the evidence and
resolve any conflicts in the evidence. Lewis v. Commonwealth, 8
Va. App. 574, 582, 383 S.E.2d 736, 741 (1989) (en banc).
Simmons' attack on the sufficiency of the evidence is
essentially an attack on the victim's credibility. However, the
jury has resolved this issue in favor of the victim. That
finding will not be disturbed on appeal unless as a matter of
law, the victim's testimony was inherently incredible, or so
contrary to human experience as to render it unworthy of belief.
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Fisher v. Commonwealth, 228 Va. 296, 299-300, 321 S.E.2d 202,
204 (1984); Willis and Bell v. Commonwealth, 218 Va. 560, 563,
238 S.E.2d 811, 812-13 (1977).
The victim's testimony was not unbelievable as a matter of
law, and in fact was corroborated by the testimony of other
witnesses. Two of these witnesses recounted Simmons' own
statements, which were highly incriminating. The evidence is
sufficient to sustain the conviction for rape.
The defendant also claims that the trial court erred in
excluding testimony about the victim's reputation for
truthfulness. A trial judge's ruling on the admissibility of
evidence will not be disturbed absent an abuse of discretion.
Hunter v. Commonwealth, 15 Va. App. 717, 724, 427 S.E.2d 197, 202
(1993).
The defense attempted to introduce testimony by Cloe Wilson,
a sixteen-year-old who lived with the victim and her family for
two and one half months around the time of the rape. Ms. Wilson
testified on voir dire that she had discussed the victim's
reputation for truthfulness with the victim's mother and sister
and with someone in the neighborhood, whom she did not name.
When evidence on reputation for truth is rejected, the
proponent of the evidence must make a proffer of the expected
answer in order to preserve the issue for appeal. Mostyn v.
Commonwealth, 14 Va. App. 920, 924, 420 S.E.2d 519, 521 (1992).
Although Simmons on voir dire of Ms. Wilson described the sources
of her proposed testimony, he did not make a proffer of the
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substance of the testimony.
We do not need to invoke the good cause or the ends of
justice exception to waive the requirement of a proffer, because
the trial judge clearly did not abuse his discretion in excluding
this evidence. The testimony would have consisted primarily of
the victim's reputation for truthfulness within her immediate
family, with only one unidentified witness from the neighborhood.
Testimony about truthfulness must concern the witness' "bad
general reputation for truth and veracity in the community where
he lives or works, or among his neighbors and acquaintances
. . . ." Clark v. Commonwealth, 202 Va. 787, 789, 120 S.E.2d
270, 272 (1961) (emphasis added). 1 The trial judge in his
discretion could have found that the testimony offered here had
too narrow a basis to be admissible as evidence of the victim's
1
The community from which a child's reputation is drawn
may be more circumscribed than for an adult. See Commonwealth v.
Healey, 27 Mass. App. Ct. 30, 39, 534 N.E.2d 301, 307 (Ct. App.
1989). However, the testimony concerning the child's reputation
should emanate from an identifiable group, and the sources of the
information on reputation should be sufficiently numerous to
assure trustworthy testimony. Id. Here, given the nature of the
proposed testimony, we do not need to identify the eleven-year-
old victim's community for purposes of reputation testimony. It
was well within the trial judge's discretion to decide that
testimony based on information from only two family members,
combined with one unidentified individual from the neighborhood,
had too few sources to assure trustworthy testimony. Compare
Commonwealth v. Arthur, 31 Mass. App. Ct. 178, 179-80, 575 N.E.2d
1147, 1148 (Ct. App. 1991) (evidence on reputation for
truthfulness properly admitted where the impeaching witness
identified a discrete community, i.e., the victim's eighth grade
class, and a substantial number of students within that community
had expressed views to the witness about the victim's reputation
for veracity.)
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general reputation for truthfulness. For these reasons, we
affirm the defendant's conviction for rape.
Affirmed.
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Walter Lynn Simmons v. Commonwealth
Combined Opinion