COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Fitzpatrick
Argued at Alexandria, Virginia
LEONARD SIMMS WOODEN
v. Record No. 2173-93-4 MEMORANDUM OPINION * BY
JUDGE JOHANNA L. FITZPATRICK
COMMONWEALTH OF VIRGINIA MAY 2, 1995
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
LeRoy F. Millette, Jr., Judge
Darrell M. Allen for appellant.
Donald R. Curry, Senior Assistant Attorney General (James S.
Gilmore, III, Attorney General, on brief), for appellee.
Leonard Simms Wooden (appellant) was convicted in a jury
trial of rape in violation of Code § 18.2-61. On appeal, he
argues that the trial court erred in: (1) failing to allow
evidence of the post-incident relationship between appellant and
the victim; (2) failing to allow evidence of a Maryland acquittal
verdict in a similar case involving appellant and the victim; and
(3) denying appellant's counsel's request for reimbursement of
defense expenses. For the reasons that follow, we affirm the
trial court.
Appellant and the victim had a sexual relationship that
began in the summer of 1991 and continued until October 24, 1992,
when the victim stopped seeing appellant. On the evening of
November 4, 1992, appellant met the victim as she drove to her
home. He entered the driver's side of her car and drove to a
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
logging trail on Bull Run Mountain in Prince William County.
The victim testified that he forced her to have sexual
intercourse and perform oral sex on him. Appellant then drove to
Reston, where he left the car. The victim immediately reported
the rape to the Fairfax County Police Department. In a separate
incident, appellant was tried by a jury on similar charges in
Talbot County, Maryland, and was acquitted prior to the Virginia
trial.
Before trial, appellant submitted a motion in limine to
allow evidence of: (1) the prior sexual relationship of the
parties, and (2) the Maryland trial and verdict. The court held
that the prior sexual conduct of the parties was admissible
pursuant to Code § 18.2-67.7(A)(2). Appellant moved to introduce
the Maryland trial and verdict to show that the victim had a
pattern of making false accusations against appellant. The judge
denied this part of the motion and noted that "a not guilty or an
acquittal may have been the result of a failure for witnesses to
appear or failure of evidence--for a whole lot of reasons other
than the fact that it was just a false statement." Appellant
objected to the court's ruling. At trial, appellant did not
attempt to introduce evidence of the post-incident relationship
of the parties, including the Maryland incident.
The court also denied appellant's pre-trial request for
funds to employ an investigator. After trial, the court found it
had no authority to grant appellant's ex parte motion for witness
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fees and expenses for Detective David Sears, a Maryland police
officer who testified as a fact witness concerning the condition
of the victim's car.
EVIDENCE OF THE POST-INCIDENT RELATIONSHIP
Appellant argues that the trial court erred in failing to
allow evidence of his post-incident relationship with the victim.
Code § 18.2-67.7 provides as follows:
general reputation or opinion evidence of the
complaining witness's unchaste character or
prior sexual conduct shall not be admitted.
Unless the complaining witness voluntarily
agrees otherwise, evidence of specific
instances of his or her prior sexual conduct
shall be admitted only if it is relevant and
is:
2. Evidence of sexual conduct between
the complaining witness and the accused
offered to support a contention that the
alleged offense was not accomplished by
force, threat or intimidation or through the
use of the complaining witness's mental
incapacity or physical helplessness, provided
that the sexual conduct occurred within a
period of time reasonably proximate to the
offense charged under the circumstances of
this case . . . .
"Prior sexual conduct" of a complaining witness includes "any
sexual conduct on the part of the complaining witness which took
place before the conclusion of the trial, excluding the conduct
involved in the offense alleged." Code § 18.2-67.10(5). See
also Currie v. Commonwealth, 10 Va. App. 204, 207, 391 S.E.2d 79,
81 (1990).
At the motion hearing, the judge ruled that evidence of
"prior sexual conduct" between appellant and the victim would be
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admissible at trial. Under Code § 18.2-67.10(5), "prior sexual
conduct" includes the Maryland incident because it occurred
before the conclusion of the Virginia trial and was reasonably
proximate to the November 4, 1992 incident. The trial court's
ruling allowed evidence of the parties' ongoing relationship,
but, as a matter of trial strategy, appellant chose not to pursue
it. This does not constitute trial error.
EVIDENCE OF THE ACQUITTAL VERDICT
Appellant further argues that the trial court erred in
failing to allow appellant to introduce the Maryland verdict of
acquittal into evidence. We hold that the trial court properly
excluded the Maryland trial results.
"'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.'" Crews v.
Commonwealth, 18 Va. App. 115, 118, 442 S.E.2d 407, 409 (1994)
(quoting Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d
838, 842 (1988)). "'[E]vidence is relevant if it tends to
establish the proposition for which it is offered.' Evidence is
material if it relates to a matter properly at issue."
Evans-Smith v. Commonwealth, 5 Va. App. 188, 196, 361 S.E.2d 436,
441 (1987) (citation omitted).
The court's exclusion of the Maryland trial and acquittal
verdict was not an abuse of discretion. The blanket acquittal in
the Maryland trial failed to prove that the victim "lied" or made
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a "false accusation." Rather, a general verdict of acquittal can
be read only for the proposition that the prosecution failed to
prove each of the required elements beyond a reasonable doubt.
The Maryland verdict is not relevant to whether appellant
committed rape on November 4, 1992.
REIMBURSEMENT OF EXPENSES
Finally, appellant argues that the trial court erred in
denying his request for reimbursement of expenses associated with
an investigator and an out-of-state, non-expert witness.
Code § 19.2-163 provides that "[t]he circuit or district
court shall direct the payment of such reasonable expenses
incurred by such court-appointed attorney as it deems appropriate
under the circumstances of the case." (Emphasis added). See
Singleton v. Commonwealth, 16 Va. App. 841, 842, 433 S.E.2d 507,
508 (1993). Under the circumstances of this case, the court did
not abuse its discretion in failing to award appellant his
requested expenses for an investigator or the $400 appearance fee
for the Maryland detective.
Accordingly, the decision of the trial court is affirmed.
Affirmed.
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