dissenting.
I respectfully dissent from the decision of the majority. I agree that two top legislative priorities in passage of the rape shield law were the elimination of the reasonable resistance requirement in rape cases and limiting the admissibility of evidence of a victim’s past sexual conduct. Another major objective was to encourage victims to report sex crimes and to testify against the perpetrators without fear of having their past sexual history exposed. The statute was intended to place the focus in sexual assault cases upon the conduct of the accused rather than upon the prior conduct of the victim.
The petition for appeal in this case was granted to the appellant, limited to consideration of three questions: (1) did the trial court err in refusing to allow the defendant to testify about sexual intercourse between the prosecutrix and the defendant; (2) did the trial court err in refusing to allow the defendant to testify *211about an agreement between him and the prosecutrix regarding sex for money; and (3) did the trial court err in refusing defense Instruction A?
In order to effectuate the purposes of the statute, a scheme is provided for an evidentiary hearing to allow the trial judge to hear the testimony privately and rule on its admissibility in advance of the trial. Code § 18.2-67.7(C), in pertinent part, provides:
Evidence described in subsections A and B of this section shall not be admitted and may not be referred to at any preliminary hearing or trial until the court first determines the admissibility of that evidence at an evidentiary hearing to be held before the evidence is introduced at such preliminary hearing or trial. The court shall exclude from the evidentiary hearing all persons except the accused, the complaining witness, other necessary witnesses, and required court personnel.
In this case, the Commonwealth’s attorney filed a motion in limine, moving the trial court to prohibit the defendant’s introduction of evidence of specific instances of “prior sexual conduct” between the accused and the prosecutrix, as provided in Code § 18.2-67.7. The hearing took place immediately before the trial commenced. The only witnesses who testified were League and the prosecutrix.
The testimony at the hearing was limited because there never existed any real relationship between the prosecutrix and League. League claimed that he first met the prosecutrix in the early part of 1986 at David Ralls’ house. She had come to the house to breed her dog with one that Ralls owned. She waited in the living room for this event to take place and League claimed that “we all sat in the living room and talked.” The prosecutrix did not remember meeting League on this occasion. Evidence of this meeting was admitted at trial since it did not involve sexual conduct.
League further testified at the hearing on the motion that he went to the home of the prosecutrix eight or nine months prior to the alleged rape in order to see her husband about some fishing trips. Both the prosecutrix and her husband, who were separated but living separately in the marital home, were present with several other persons on this occasion. They drank beer and watched *212an x-rated movie on television. At some point in time, the prosecutrix and League left the house in League’s truck to get some beer. The prosecutrix and League had consensual sexual relations in the truck. The truck got stuck and they were late returning to the prosecutrix’s home. He further stated that after returning to her home, she gave him her telephone number in the presence of her husband and told League that any future sex would cost him $50. The prosecutrix denied that this conversation took place. The trial judge ruled that League could not introduce this evidence at trial because the alleged conduct did not occur within a reasonably proximate time before the oifense.
League testified that after this occasion he called the prosecutrix three or four times on the telephone and talked to her. The record does not contain any reference to the nature of the conversations. The prosecutrix denied that there were any telephone conversations. The trial judge admitted evidence of the telephone conversations since they did not involve sexual conduct.
The last contact between League and the prosecutrix occurred on November 6, 1986, the night of the charged offense of rape. According to League’s testimony at the hearing on the in limine motion, the prosecutrix asked him if he remembered the agreement. If such a statement was made, the record does not show any response to it on League’s part. He said he thought she was talking about money and thereafter, accordingly to his testimony, they had consensual sex. The prosecutrix testified at the hearing that League showed up at her house without invitation. She denied that she asked him about any agreement and further testified that the sexual intercourse was by force and against her will. The trial judge ruled that League could not testify at trial about her alleged reference to their agreement but otherwise permitted League to fully develop his defense of consent.
Concerning the first question assigned as error, I agree with the majority that Code § 18.2-67.7(A)(2) requires the trial judge to make a finding in each case as to whether evidence of prior sexual conduct is “reasonably proximate” or remote. I further agree that in making this determination, a totality of all the circumstances must be considered. However, in my judgment, the most important factor normally will be the period of time that has elapsed between the prior sexual contact and the offense, although the significance of time will vary according to the nature of the relation*213ship between the parties. To illustrate this point, if the prosecutrix and the defendant had a close sexual relationship, and the accused, being in the military service, got transferred to foreign duty for an extended period of time, upon his return home the passage of a significant period of time might not be of great importance and the accused might have reason to anticipate that the relationship would continue where it left off. However, if the prosecutrix and the accused had the same close relationship, and she told him to get out of the house and that she never wanted to see him again, the passage of even a short period of time might render the prior sexual conduct irrelevant. There was never any close sexual relationship between the prosecutrix and League and none whatsoever for eight or nine months. Thus, the relevancy of the prior sexual contact was rendered de minimis by the passage of time. I agree with the trial judge that the prior sexual act was not “reasonably proximate” in time and, therefore, was properly excluded at trial.
The second question presented by League involves the admissibility of the assertion, which he attributes to the prosecutrix, concerning the “agreement” for sex in the future. League contends that evidence of the assertion about sex for money arose directly out of the earlier act of sex, and was admissible as a specific instance of sexual conduct. The trial judge ruled that all of the testimony concerning sex for money was inadmissible because it was not “reasonably proximate” to the charged crime. For the reasons previously stated in connection with the admissibility of the prior sexual contact, I agree and would hold that the trial judge properly excluded the evidence.
The majority further concludes that, based on League’s account of what transpired, the alleged rape was so intertwined with the prior consensual sexual intercourse and the discussion about future sex for money that to exclude the evidence would present the jury with an inaccurate picture of the relationship between the parties. The majority further states that the jury was presented with a case of an alleged rape between virtual strangers, adding great weight to the prosecutrix’s account that she did not consent. While I agree that the rape-shield statute cannot be applied in a manner that would deprive the defendant of a fair trial or of his right to confront and cross-examine his accusers, I do not believe under the circumstances of this case that any such deprivation oc*214curred. Specifically, I do not agree that the jury was in anyway misled by the exclusion of this evidence any more so than a jury would be “misled” by the exclusion of any non-relevant evidence. Even if the jury was presented with this evidence and believed League’s account, the fact remains that the parties were “virtual strangers.”
In addition to the above two occurrences, League proffered testimony that immediately prior to the alleged rape on November 6, 1986, the prosecutrix specifically asked if he remembered their agreement that future sex would cost him $50. This, he stated, meant to him that she was talking about money. The prosecutrix denied that she made such a statement at the time of the rape. The majority attempts to use this alleged statement as a bootstrap to justify the admission of evidence of an earlier sexual encounter. Presumably, the majority argues that the alleged statement at the time of the rape was “reasonably proximate” and should have been admitted. From this predicate, the majority then argues that the evidence of the earlier sexual contact should be admissible to explain the significance of the alleged statement. I disagree. In my view this statement, if made, was part and parcel of the earlier events and was properly excluded with them. In my opinion, the trial judge properly declared all of the evidence regarding the prior sexual contact inadmissible because it was not reasonably proximate to the charged offense.
I have several further disagreements with the majority opinion. It is well settled that on appeal we must view the evidence and all reasonable inferences in the light most favorable to the Commonwealth, and the trial court’s judgment will be affirmed unless plainly wrong or without evidence to support it. Barker v. Commonwealth, 230 Va. 370, 373, 337 S.E.2d 729, 732 (1985). Additionally, the credibility of witnesses and the weight to be given their testimony are questions exclusively within the province of the fact finder. Id. Questions of admissibility of evidence, including relevance and remoteness, are matters within the sound discretion of the trial court, and its decision will not be disturbed absent a clear abuse of discretion. See Wise v. Commonwealth, 6 Va. App. 178, 188, 367 S.E.2d 197, 203 (1988); Brown v. Commonwealth, 3 Va. App. 182, 186, 348 S.E.2d 849, 852 (1986). The majority has made no finding that the trial court abused its discretion.
*215In order to justify their conclusion that this evidence was admissible, the majority states that, from their review of the record, the trial court erred by considering only the lapse of time in ruling that the “prior sexual conduct” was too remote to be admissible. The majority fails, however, to specify what other factors, apart from the earlier single sexual contact, the judge should have considered. This is understandable since, in my view, there were no other relevant factors to consider. The fact is that there was no relationship between the parties during the interim period for him to consider, except the alleged phone calls. Moreover, there is nothing in the record to show that the trial judge did not consider all of the facts and circumstances of the case. The trial judge did not make any formal findings of fact in the case, nor did he purport to set forth every reason for his decision to exclude the evidence. He is not required to do so. His decision was a ruling on all points raised before him and he was not required to state his reasons as to all of them. Freeman v. Peyton, 207 Va. 194, 196, 148 S.E.2d 795, 797 (1966). I, therefore, disagree with the analysis upon which the majority has proceeded.
The majority’s opinion seems to proceed from the view that, whenever there is conflicting evidence, the truthfulness of the witnesses shall be submitted to the jury for their determination. The rape-shield law provides that evidence of “prior sexual conduct” shall not be admitted in evidence “until the court first determines the admissibility of that evidence at an evidentiary hearing.” Code § 18.2-67.7(C). This statute creates a practical problem for the trial court when the evidence at the hearing is conflicting, as it was in this case. If the accused claims that “prior sexual conduct” took place with the prosecutrix within a reasonably proximate period of time and she denies that it occurred at all, what should the trial court do? Should the trial court determine who is telling the truth or should it submit the issue to the jury for determination? The statute requires the court to decide questions of admissibility at a closed evidentiary hearing. What should a trial judge do when he or she concludes that the evidence of the alleged prior sexual encounter is insufficient to support a finding that the encounter in fact occurred? Should the evidence nonetheless be admitted if the trial judge further finds that alleged prior sexual contact occurred within a reasonably proximate time? Only one jurisdiction has ruled on this issue. It held that “the trial court had authority to pass upon the truth of defendant’s accusations of *216prior sexual conduct with the prosecutrix, and if he did not believe the testimony to preclude its admission in evidence.” Turley v. State, 356 So. 2d 1238, 1244 (Ala. Crim. App. 1978). Since I believe that the prior sexual contact in this case did not occur within a reasonably proximate time of the offense I need not resolve this question. I do believe, however, that the state may, at a minimum, provide that such evidence should be excluded if the evidence produced regarding the alleged encounter is insufficient to support a finding that the prior sexual contact occurred. Such a standard in my view, would not deprive the defendant of his right to a jury trial or to a fair trial.
Finally, the majority has asserted that the rape-shield law must be applied in a manner that will not deprive a criminal defendant of his sixth amendment right to confront and cross-examine his accuser, and to call witnesses in his defense. I agree. The defendant, however, made no such contention in this case. Therefore, it cannot be raised for the first time on appeal. Rule 5A:18.
For the reasons stated, I would affirm the decision of the trial court.