Tuma v. Commonwealth

BEALES, J.,

dissenting.

Today I fear the Court effectively creates a broader rule under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), than the United States Supreme Court and Virginia’s appellate courts have ever before established under Brady. The majority opinion effectively holds in this case that the failure to disclose any prior inconsistencies by a complaining witness in a child sexual abuse case per se renders that evidence “material” under Brady and its progeny, and, therefore, will require reversal of the conviction.20 Today’s holding, I fear, waters down the clear and settled requirement for a defendant to establish that he has actually been prejudiced by the failure to disclose impeachment evidence in order to prevail in a Brady claim and get his conviction overturned.

I find no basis in the case law for applying the materiality requirement of a Brady claim as loosely as the majority does *315here—particularly in a case, such as this one, where the new impeachment evidence does not call into question whether the witness misidentified the defendant, does not call into question whether the witness had a motive to fabricate the allegation of sexual abuse, and does not call into question whether the witness revealed something during her interview with the authorities that otherwise would significantly damage the credibility of her core accusation of sexual abuse at trial. To the extent L.S.’s statements before trial and at trial were inconsistent (and were not already known from the pre-trial disclosure of the written summary of the interview), several such inconsistencies were presented to the jury by defense counsel and others could have been presented by defense counsel based on what was learned during the trial. Moreover, as I discuss more at length below, the only actual type of inconsistency here from L.S. that would even be the proper subject of a Brady analysis in this case concerned the same type of inconsistency that was already presented to—and considered by—the jury.

For these reasons—and for the reasons that follow—I respectfully dissent from the majority’s opinion that reverses appellant’s convictions for taking indecent liberties with a child, for aggravated sexual battery of a child, and for animate object sexual penetration of a child. I would affirm each of those convictions.21

*316I. The Brady Rule

In Brady, the United States Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97. “ ‘If the defendant does not receive such evidence, or if the defendant learns of the evidence at a point in the proceedings when he cannot effectively use it, his due process rights as enunciated in Brady are violated.’ ” Muhammad v. Warden of Sussex I State Prison, 274 Va. 3, 4, 646 S.E.2d 182, 186 (2007) (quoting Muhammad v. Commonwealth, 269 Va. 451, 510, 619 S.E.2d 16, 49-50 (2005)).

However, case law makes very clear that “constitutional error occurs, and the conviction must be reversed, only if the evidence is material” in the Brady sense. Teleguz v. Commonwealth, 273 Va. 458, 488, 643 S.E.2d 708, 727 (2007); see United States v. Bagley, 473 U.S. 667, 678, 105 S.Ct. 3375, 3381-82, 87 L.Ed.2d 481 (1985). According to the United States Supreme Court’s decision in Bagley, evidence is material under Brady “only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Bagley, 473 U.S. at 682, 105 S.Ct. at 3383.

The “reasonable probability” discussed in Bagley is defined as “a probability sufficient to undermine confidence in the outcome.” Id. (emphasis added). Thus, what the Brady rule really tests is whether the defendant “received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995). If the verdict is no longer worthy of confidence, then the defendant has been prejudiced under Brady and is entitled to a new trial. Conversely, if the verdict remains worthy of confidence, then the defendant has not been prejudiced under Brady and a new trial is not required. Thus, materiality under Brady is dependent on *317prejudice to the defendant, as the Supreme Court of Virginia has explained:

“There are three components of a violation of the rule of disclosure first enunciated in Brady: a) The evidence not disclosed to the accused must be favorable to the accused, either because it is exculpatory, or because it may be used for impeachment; b) the evidence not disclosed must have been withheld by the Commonwealth either willfully or inadvertently; and c) the accused must have been prejudiced.”

Garnett v. Commonwealth, 275 Va. 397, 406, 657 S.E.2d 100, 106 (2008) (emphasis added) (quoting Workman v. Commonwealth, 272 Va. 633, 644-45, 636 S.E.2d 368, 374 (2006)).

Viewed in this light, the withholding of impeachment evidence is not enough to constitute a Brady violation—rather, the withheld impeachment evidence must be “material” in the Brady sense, thereby causing prejudice to the defendant sufficient to undermine confidence in the outcome. See Lovitt v. Warden of Sussex I State Prison, 266 Va. 216, 245, 585 S.E.2d 801, 818 (2003) (“A prosecutor’s suppression of impeachment evidence creates a due process violation only if the suppression deprives the defendant of a fair trial under the Brady standard of materiality.” (emphasis added) (citing Bagley, 473 U.S. at 678, 105 S.Ct. at 3381; McDowell v. Dixon, 858 F.2d 945, 949 (4th Cir.1988))).

I largely agree with the majority opinion’s very thorough description of a prosecutor’s responsibilities and duties to uphold the principles of justice. Furthermore, I would assume without deciding for the purposes of this case that the prosecutor here should have listened to the audiotape of L.S.’s interview by Ms. Jon Webster Scheid of Dinwiddie County’s Department of Social Services and Investigator Dwayne Gilliam of the Dinwiddie County Sheriffs Office prior to trial— or, at least, once the issue of the audiotape was raised during the trial. As the majority correctly notes, the prosecutor in this case made certain representations to the trial court *318concerning the contents of the audiotape without first having actually listened to the audiotape.

However, the ultimate focus of the Brady test is not and never has been to determine what steps the prosecutor should or should not have taken in a given case. Moreover, the purpose of the Brady test is not to catalog the areas where a witness’ testimony differs from her prior statements. Both of these inquiries certainly can be relevant considerations within a Brady analysis, but the ultimate issue under Brady is whether the defendant has or has not been prejudiced to a constitutionally significant degree. In the words of the United States Supreme Court, “prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 282, 119 S.Ct. 1936, 1948, 144 L.Ed.2d 286 (1999).

“The absence of prejudice, by itself, defeats [a] Brady claim and renders all other issues analytically superfluous.” Deville v. Commonwealth, 47 Va.App. 754, 758, 627 S.E.2d 530, 532 (2006). In the final analysis, therefore, the rule in Brady tests whether the defendant has been prejudiced to the extent that confidence in the outcome of the trial has, to “a reasonable probability,” been undermined. See Bagley, 473 U.S. at 682, 105 S.Ct. at 3383. Simply put, confidence in the outcome of the trial has not been undermined here.

II. Analysis op Appellant’s Brady Claim

Here, we have a seven-year-old witness, L.S., who, despite her young age, has consistently asserted that she was sexually abused and has consistently asserted that appellant William Tuma was the perpetrator of the sexual abuse. Nothing that L.S. said that was recorded on the audiotape of the interview with Ms. Scheid and Investigator Gilliam in any way contradicts the allegation that she was sexually abused and that appellant sexually abused her. For example, appellant cites no statements from L.S. during the audiotaped interview calling into question whether L.S. misidentified the perpetrator of the sexual abuse, or raising the possibility that someone else (and not appellant) sexually abused her, or revealing even *319the slightest hint of a motive to fabricate the sexual abuse allegation on her part.

L.S. also has consistently asserted that appellant sexually abused her at the white house next to the horses on Boydton Plank Road in Dinwiddie County,22 and absolutely no statements that were recorded during the interview contradict that assertion either. L.S. testified at trial, of course, that the sexual abuse occurred at other locations in addition to the white house—even though the audiotape of the interview reflects that she told Ms. Scheid and Investigator Gilliam that the sexual abuse occurred only at the white house and stated that the sexual abuse did not occur at two of these other locations she mentioned at trial (i.e., the Green Acres Trailer Park and her grandmother’s house). This inconsistency is the essence of appellant’s Brady claim—the only real inconsistency in L.S.’s account that could not have been discovered based on Investigator Gilliam’s written summary of the interview with L.S.

However, any conceivable impact arising from this inconsistency must be considered minimal when appellant’s Brady claim is “ ‘evaluated in the context of the entire record’ ”—in the manner that binding authority instructs this Court to review any claim under Brady. Robinson v. Commonwealth, 220 Va. 673, 676, 261 S.E.2d 318, 320 (1980) (quoting United States v. Agurs, 427 U.S. 97, 104, 112, 96 S.Ct. 2392, 2398, 2402, 49 L.Ed.2d 342 (1976)).

A. The Jury Was Aware that L.S. Made Prior Inconsistent Statements

Appellant was charged with one count of taking indecent liberties with a child, one count of aggravated sexual battery, and one count of animate object sexual penetration. At a minimum, L.S., despite her young age, has consistently asserted that appellant sexually abused her five to ten times at the *320white house—an assertion that was reflected both on the audiotape of the interview with Ms. Scheid and Investigator Gilliam and in the investigator’s written summary of the interview, which was provided to the defense before trial. Appellant could have been convicted of all three charged offenses if the jury believed that even one episode of sexual abuse occurred at the white house, as asserted by L.S. during the interview and then at trial.23

The trial transcript establishes that L.S.’s credibility was challenged by the defense at trial. The jury could readily compare statements L.S. made to Ms. Scheid and Investigator Gilliam during her pre-trial interview with the statements L.S. made during her testimony at trial. Inconsistencies were pointed out during cross-examination of the Commonwealth’s witnesses and by appellant’s trial attorney during closing argument.

Based on the defense’s cross-examination of Investigator Gilliam and Ms. Scheid, the jury was aware that L.S. asserted for the first time at trial that appellant sexually abused her three times per week while they were staying at an RV park in Prince George County. This assertion was never made during the audiotaped interview. In fact, the Prince George RV park was never even mentioned during this interview.

To be sure, this prior inconsistency was underscored during Ms. Scheid’s cross-examination, during which the following exchange with appellant’s trial attorney occurred:

*321Q: Nothing happened in a RV park in Prince George?
A: I know nothing.
Q: That never came [up]?
A: I know nothing.

Moreover, appellant’s trial attorney alluded to L.S.’s testimony about the Prince George RV park during closing argument, when counsel reminded the jury that L.S. at one point testified “that it happened three times a week”—a clear reference to L.S.’s testimony about the sexual abuse at the Prince George RV park.

In addition, while L.S. testified at trial that appellant sexually abused her at her grandmother’s house, the jury became aware during the trial that L.S. had informed Ms. Scheid and Investigator Gilliam at the time of the interview that she was never sexually abused at her grandmother’s house. On cross-examination at trial, L.S. testified that appellant sexually abused her at her grandmother’s house—which is not located in Dinwiddie County, as was clearly established during L.S.’s cross-examination. During Ms. Scheid’s cross-examination, however, Ms. Scheid testified:

Q: Did you ask her if this man here touched her anywhere other than Dinwiddie?
A: Yes.
Q: You did?
A: Yes.
Q: Her answer was?
A: Only in Dinwiddie.

(Emphasis added). Although Ms. Scheid’s recollection of this portion of the interview with L.S. was not fully accurate at the time of trial,24 this testimony conveyed the essentials of what L.S. indicated during the audiotaped interview—that appellant did not sexually abuse her at L.S.’s grandmother’s home, which is located outside of Dinwiddie County.

*322Therefore, Ms. Scheid’s testimony that is excerpted above: (a) categorically excluded, L.S.’s grandmother’s home from being a place where L.S. asserted during the interview that appellant sexually abused her; and (b) categorically included L.S.’s grandmother’s home as a place where L.S. indicated during the interview that appellant did not sexually abuse her. The defense learned of this information in time to call into question the credibility of L.S.’s trial testimony that appellant sexually abused her at her grandmother’s house. Appellant cannot now establish the required prejudice under Brady simply because his defense counsel did not use this known inconsistency for impeachment purposes during the trial, even though, as just noted, his defense counsel knew about it.

The jury was also aware that L.S. testified at trial that the sexual abuse occurred more than ten times—based on a fair reading of the trial transcript, perhaps a lot more than ten times—and that L.S.’s testimony, therefore, contradicted her earlier statement during the interview with Ms. Scheid and Investigator Gilliam that appellant sexually abused her between five and ten times. Appellant’s trial attorney actually highlighted this discrepancy for the jury during his closing argument, asserting that “we have had answers all over the map as to how many times it happened.” Thus,- the jury heard substantial impeachment evidence and argument concerning the consistency of the details of L.S.’s assertions of sexual abuse.

B. Appellant Presents the Same Type of Impeachment Evidence that Was Already Presented at Trial

On appeal, the impeachment evidence that appellant presents in his Brady claim is really just the same type of impeachment evidence that the jury already considered at trial, when the jury could compare L.S.’s statements reflected in Investigator Gilliam’s summary of the interview with L.S.’s testimony at trial. See Lockhart v. Commonwealth, 34 Va.App. 329, 346, 542 S.E.2d 1, 9 (2001) (noting that Lockhart’s Brady evidence “was simply more of the same type of evidence and would not, we conclude, have put the whole case in *323such a different light as to undermine confidence in the verdict”); see also Byrd v. Collins, 209 F.3d 486, 518 (6th Cir.2000) (“ ‘[WJhere the undisclosed evidence merely furnishes an additional basis on which to challenge a witness whose credibility has already been shown to be questionable or who is subject to extensive attack by reason of other evidence, the undisclosed evidence may be cumulative, and hence not material.’ ” (quoting United States v. Avellino, 136 F.3d 249, 257 (2d Cir.1998))); United States v. Cuffie, 80 F.3d 514, 518 (D.C.Cir.1996) (explaining that “undisclosed impeachment evidence can be immaterial because of its cumulative nature only if the witness was already impeached at trial by the same kind of evidence”).

In this case, some of the details of L.S.’s inconsistencies cited by the majority opinion are now different, in light of the specific statements from L.S. that are reflected on the audiotape, but they concern the same types of inconsistencies from L.S. that the jury already considered—i.e., where the sexual abuse occurred and how many times the sexual abuse occurred. However, even this assessment of appellant’s Brady claim overstates the strength of his argument on appeal. This is because the audiotape and the investigator’s summary reflect no differences in the number of times that L.S. asserted she had been sexually abused during the interview.25 Appel*324lant’s trial attorney actually used the information in the investigator’s summary to impeach L.S. on this subject just as effectively as he could have used the audiotape. Consequently, what appellant’s Brady claim actually boils down to is L.S.’s inconsistency concerning where, in addition to the white house, the sexual abuse occurred. However, as noted above, the jury was already aware that L.S. had been inconsistent on this very same subject of where the sexual abuse occurred.

C. The Decision in Smith v. Cain is Distinguishable

According to the majority opinion in this case, the United States Supreme Court’s recent decision in Smith v. Cain, — U.S. -, 132 S.Ct. 627, 181 L.Ed.2d 571 (2012), is controlling on the facts of this case. I respectfully disagree. In my view, the circumstances in Smith were very different than the circumstances are here. See Lockhart, 34 Va.App. at 346, 542 S.E.2d at 9 (“The materiality inquiry is a context-specific determination; evidence that is material in one setting could be immaterial in another.”). The circumstances that rendered the undisclosed impeachment evidence material in Smith do not somehow make appellant’s asserted Brady evidence material in this case.

In Smith, the issue was the eyewitness’ identification of Smith as one of three gunmen who committed murder during a home invasion and armed robbery. At trial, the prosecution’s star eyewitness (Boatner) testified that Smith was the first gunman to come through the door and that he had been face-to-face with Smith during the robbery. Boatner testified *325that he had “[n]o doubt” that Smith was the gunman with whom he had stood face-to-face on the night of the crime. However, the prosecution had failed to disclose to the defense statements that Boatner made on the night of the crime and five days after the crime indicating that Boatner could not identify any of the gunmen. Smith, — U.S. at -, 132 S.Ct. at 629-30.

On appeal from the lower courts’ refusal to grant Smith post-conviction relief under Brady, the United States Supreme Court held that “Boatner’s undisclosed statements were plainly material,” explaining:

We have observed that evidence impeaching an eyewitness may not be material if the State’s other evidence is strong enough to sustain confidence in the verdict. See United States v. Agurs, 427 U.S. 97, 112-113, 96 S.Ct. 2392 [2402] 49 L.Ed.2d 342, and n. 21 (1976). That is not the case here. Boatner’s testimony was the only evidence linking Smith to the crime. And Boatner’s undisclosed statements directly contradict his testimony: Boatner told the jury that he had “[n]o doubt” that Smith was the gunman he stood “face to face” with on the night of the crime, but Ronquillo’s notes show Boatner saying that he “could not ID anyone because [he] couldn’t see faces” and “would not know them if [he] saw them.” App. 196, 200, 308. Boatner’s undisclosed statements were plainly material.

Smith, — U.S. at -, 132 S.Ct. at 630 (emphasis in original).

In context, the Supreme Court’s statement that “Boatner’s testimony was the only evidence linking Smith to the crime” means that Boatner was the only witness at Smith’s trial who could identify Smith as one of the gunmen present on the night of the crime.26 The jury believed Boatner’s testimony *326that Smith was one of the gunmen and convicted him. However, if the jury had been presented evidence that Boatner was unable to identify any of the gunmen, including Smith, at the time of the crime, then the jury could well have disbelieved Boatner’s testimony that Smith was one of the gunmen. The inconsistencies between Boatner’s trial testimony and his earlier statements implicated the very basic, highly material question of whether Smith was even there when the crimes were committed. Because the question of Smith’s presence at the crime scene suddenly appeared in a new and different light, Smith’s asserted Brady evidence “ ‘undermine[d] confidence in the outcome of the trial.’ ” Id. (quoting Kyles, 514 U.S. at 434, 115 S.Ct. at 1566).

Aside from its recitation of general Brady principles, the decision in Smith has essentially no application to the context of the record of this particular case. There was no question at appellant’s trial that L.S. could accurately identify appellant— and the audiotape of L.S.’s interview certainly contains nothing new on this subject.

The Supreme Court of Virginia’s opinion in Bly v. Commonwealth, 280 Va. 656, 702 S.E.2d 120 (2010), also provides a useful contrast with the facts of this case. To prove Bly’s *327guilt, the Commonwealth relied on a confidential informant’s testimony attesting that he had participated in two alleged controlled drug transactions with Bly—but the Commonwealth did not disclose to the defense that the police were aware that the confidential informant had been providing false accounts of controlled transactions, was only paid by the authorities if he reported a drug transaction, and had reported a total of eighty-three controlled buys during a seven-month period. Id. at 658-60, 702 S.E.2d at 121-22. The Supreme Court granted Bly a new trial under Brady, explaining:

In the present case, in view of (1) the Commonwealth’s failure to introduce the audio recordings Hoyle was equipped to make of his dealings with Bly, (2) the lack of any other evidence to corroborate Hoyle’s testimony as to those transactions, and (3) Hoyle’s obvious pecuniary incentive to fabricate drug “buys,” the suppression of evidence that could have led to a devastating impeachment of Hoyle’s credibility undermines confidence in the outcome of the trial.

Id. at 663, 702 S.E.2d at 124 (emphasis added). In Bly, therefore, the suppression of evidence that the confidential informant had a substantial motive to fabricate drug buys was material under Brady because the confidential informant’s credibility could have been devastated if the jury had known this information.

What Smith and Bly (and other Brady decisions27) have in common is the suppression of significant evidence that affects *328the credibility of a prosecution witness to the degree that it truly impacts and undermines confidence in the verdict. In such cases, “the omitted evidence creates a reasonable doubt that did not otherwise exist” based on solely the evidence that was presented at trial. Agurs, 427 U.S. at 112, 96 S.Ct. at 2402. This case is very different than those cases. The audiotape of L.S.’s interview did not contain any new information that would suggest that L.S. misidentified appellant, that someone other than appellant had sexually abused L.S., or that L.S. had not been sexually abused at all and had simply fabricated the allegation that she had been sexually abused. Instead, appellant’s asserted Brady evidence only concerns certain inconsistencies in comparatively minor details associated with her allegation that appellant sexually abused her—i.e., where, in addition to the white house, the sexual abuse occurred. And the jury was already aware from the evidence and argument at trial that L.S. had been inconsistent in this regard.

Unlike in Smith, appellant’s asserted Brady evidence “was of a no more significant nature than the impeachment evidence already presented at trial,” Lockhart, 34 Va.App. at 346, 542 S.E.2d at 9—or that defense counsel could have exploited at trial, based on the evidence as it developed during the trial. Appellant’s asserted Brady evidence is “simply more of the same type of evidence and would not ... have put the whole case in such a different light as to undermine confidence in the verdict.” Id.

D. Applying Appellant’s Brady Claim to the Context of the Record Here

Appellant’s Brady claim essentially concerns the precise location or locations where L.S. asserted that appellant sexually abused her—not any misidentification of appellant on L.S.’s part, and not anything relating to a motive to fabricate the *329allegation on L.S.’s part, but simply the location or locations where appellant committed the sexual abuse against L.S.

Appellant’s Brady claim does not detract in any way from L.S.’s consistent assertion that appellant sexually abused her at the white house in Dinwiddie County. Furthermore, L.S.’s inconsistency on the question of whether appellant sexually abused her at her grandmother’s house outside of Dinwiddie County was learned by the defense at trial and could have been exploited by the defense at trial. Moreover, L.S.’s inconsistency concerning her accusation that appellant sexually abused her at the Prince George RV park was known by the defense at trial, based on both Investigator Gilliam’s written summary of the prior interview with L.S. and Ms. Scheid’s testimony at trial—and was exploited by the defense at trial.

Thus, distilled to its essence, what appellant’s Brady claim really boils down to is an unresolved factual question of whether L.S. asserted that appellant sexually abused her one time at the Green Acres Trailer Park—stated apparently after the tape recorder stopped recording L.S.’s statement to Ms. Scheid and Investigator Gilliam.28 In my view, this one ques*330tion does not come close to undermining confidence in the outcome of appellant’s trial, especially when the entire record is considered, as case law demands that we do.

I certainly disagree with the majority’s broad assertion that my analysis in this dissenting opinion simply ignores the Brady materiality standard that the United States Supreme Court stated in Kyles. On the contrary, my analysis is actually grounded in the Kyles standard—i.e., that evidence becomes material under Brady only when it could “reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Kyles, 514 U.S. at 435, 115 S.Ct. at 1566 (emphasis added). I emphasize the United States Supreme Court’s use of the words “the whole case” because those words reflect the longstanding principle that a Brady claim must be “evaluated in the context of the entire record” of the case. Agurs, 427 U.S. at 112, 96 S.Ct. at 2402. The majority opinion would appear to find any undisclosed statements that a seven-year-old witness makes in a child sexual abuse case that are even slightly inconsistent on the details of the alleged offense are enough to trigger the Brady materiality rule—and thus, require the reversal of the convictions. However, Brady and its progeny do not establish a per se rule that inconsistent statements concerning the details of alleged child sexual abuse “are by definition material” in such a situation under Brady, as the majority contends. As an appellate court, we are required to evaluate the inconsistent statements—at first individually,29 and then consider them *331collectively—and determine whether the asserted Brady evidence could “reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Kyles, 514 U.S. at 435, 115 S.Ct. at 1566 (emphasis added). Accordingly, we must consider not just the inconsistent statements—but also the broader context of the record in this case.

Here, the Commonwealth also presented expert testimony from L.S.’s child therapist, who explained that it is uncommon for children who have been sexually abused “to remember specific dates and instances of sexual abuse” because “they try to repress that as much as possible” and that it is common “for more information to come out” after a young victim of sexual abuse begins therapy. L.S.’s therapist testified, in her expert opinion, that the behavior L.S. exhibited in front of her was consistent with the behavior of a child who had been sexually abused and that she did not believe that L.S. was lying to her. The majority notes that a jury need not accept an expert’s opinion—which is, of course, true. However, viewing “the evidence in the light most favorable to the Commonwealth, as we must since it was the prevailing party” in the trial court, Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004), this Court must accept as a historical fact that L.S. fondled her younger nephew during a Super Bowl party in early 2008. Both L.S. and her nephew were naked from the waist down at the time. L.S. explained after the incident that she touched her nephew inappropriately because appellant had touched her in a similar manner.

The incident between the young L.S. and her nephew during the Super Bowl party provides an important layer of context to the analysis here. Evidence that L.S. acted out sexually in this way is evidence corroborating her contention that she had been sexually abused30—and the issue of whether *332she had been sexually abused at all was the issue of contention at appellant’s trial. (Neither the evidence at trial nor the audiotape of the interview provides even the slightest suggestion that someone else had sexually abused L.S.) No new ground could have been developed on the issue of whether L.S. had actually been sexually abused—even if the defense had been given the audiotape of L.S.’s interview with Ms. Scheid and Investigator Gilliam before or during the trial.

Appellant simply was not prejudiced by the Commonwealth’s earlier failure to disclose the audiotape to the defense. As the majority notes, it is appellant’s burden to establish a reasonable probability that, if his claimed Brady evidence had been disclosed to the defense, the result of the proceeding would have been different. See, e.g., Gagelonia v. Commonwealth, 52 Va.App. 99, 112, 661 S.E.2d 502, 509 (2008). In short, appellant simply has not shown that confidence in the outcome of his trial has been undermined to a reasonable probability—as required by the Brady rule.

E. Materiality as to Punishment

The majority also provides an alternative basis for reversal under Brady here. Even if appellant’s asserted Brady evidence is not material as to guilt, the majority states that it is still material as to punishment. Certainly, as a general matter, reversal is required under Brady where the suppressed “evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87, 83 S.Ct. at 1197; see Cone v. Bell, 556 U.S. 449, 451, 129 S.Ct. 1769, 1772, 173 L.Ed.2d 701 (2009).

Here, however, I see no indication in the record that appellant ever raised in the trial court a Brady claim as to punishment. Instead, appellant’s arguments in the trial court centered solely on materiality as to guilt under Brady. On this basis, I would hold that any argument raised on appeal *333that there was suppression of evidence that is material as to punishment is barred under Rule 5A:18. Furthermore, appellant has not requested that this Court apply an exception to Rule 5A:18, and this Court does not apply such an exception sua sponte.

In addition, having reviewed the record in this case, I do not believe that appellant has satisfied Brady’s materiality standard even as to punishment. The only real basis in the record that I can detect for even arguing that appellant here was prejudiced as to punishment is to note that he was sentenced above the statutory minimum for his offenses. Certainly, however, the fact that an inconsistency by a witness was not disclosed to the defense in time to be used at trial cannot be considered material simply because the defendant did not receive the minimum possible punishment. Otherwise, any time there is a lack of disclosure and the minimum sentence is not given for each conviction, this would be a per se violation of Brady.

In my view, appellant has failed to establish a reasonable probability that his punishment would have been different if the audiotape of L.S.’s interview had been disclosed to the defense.

III. Conclusion

Assuming without deciding that the Commonwealth should have listened to the tape recording of L.S.’s interview to determine if it had exculpatory material, the failure to do so, under these particular circumstances, does not establish the required materiality in the constitutional sense under Brady. There was not.much more or truly different impeachment evidence that could be brought forward to impeach this seven-year-old child that was not already available to the defense to provide to the factfinder, and the victim here was always consistent that appellant sexually abused her at the “white house.” Appellant was not prejudiced in any material way under the standard set forth by the United States Supreme Court in Brady and by the opinions of the United States Supreme Court and the Supreme Court of Virginia interpret*334ing and applying Brady. Accordingly, since I believe appellant’s “trial resulted] in a verdict worthy of confidence,” Kyles, 514 U.S. at 434, 115 S.Ct. at 1566, I would affirm the convictions in this case.

. Specifically, the majority opinion in this case holds,

[OJnce L.S.'s interview statements proved inconsistent with her later account of the sexual assaults, whether when interviewed by the prosecutor before trial, or, at the latest, at trial immediately following her direct testimony, the audio tape of the interview became evidence material to Tuma's guilt and/or punishment and should have been immediately disclosed when the discrepancy became known or should have become known to the prosecutor.

(Emphasis added).

. I would remand the matter to the trial court for the very limited purpose of correcting a clerical error in the final sentencing order. The sentencing order states that appellant’s sentence for aggravated sexual battery was 25 years—which is greater than the statutory maximum of 20 years of imprisonment for an aggravated sexual battery conviction. However, it is clear from the trial transcript that the jury recommended a 25-year sentence for animate object sexual penetration (which is within the statutory maximum of life in prison)—not for aggravated sexual battery (for which the jury recommended a 5-year sentence). It is also clear from the trial transcript that the trial judge sentenced appellant in accordance with the jury's recommendations. Thus, the trial court’s final order simply reverses appellant’s sentences for aggravated sexual battery and for animate object sexual penetration, and I would remand the matter to the trial court for the specific purpose of correcting this clerical error.

. At trial, this residence was referred to as both the "white house” and the house "next to the horses.” For purposes of this dissent, this residence simply will be referred to as the "white house.”

. This statement does not end the analysis—on appeal in this case, we are not, of course, reviewing the sufficiency of the evidence supporting appellant’s convictions (which would be overwhelming) or reviewing for harmless error. Kyles, 514 U.S. at 434-36, 115 S.Ct. at 1565-67. However, it is certainly significant to consider that the jury was not asked to determine if one and only one specific allegation of abuse was credible and true. From the five to ten times—or, based on her trial testimony, more than ten times—that L.S. alleged that the sexual abuse occurred, the jury in this case was entitled to convict appellant of the charged offenses even if it believed that the charged sexual abuse occurred only once and rejected all of L.S.’s other assertions of sexual abuse on other occasions. And the same principle holds true with a new jury, of course, now that the matter has been remanded for a new trial.

. The audiotape of the interview reflects that L.S. said that appellant did not sexually abuse her at her grandmother’s house, not that appellant did not sexually abuse her outside of Dinwiddie County.

. On brief, appellant refers to other “areas of interest” of L.S.’s trial testimony that, he claims, could have been the subject of impeachment if the audiotape had been disclosed by the time of trial. While the analysis of a Brady claim must reflect "the cumulative effect” of all asserted Brady evidence, Kyles, 514 U.S. at 459, 115 S.Ct. at 1578, these additional subjects presented in appellant’s brief present essentially no new impeachment value. As to whether the alleged sexual abuse of L.S. occurred only in appellant's bedroom or in his bedroom and also in L.S.’s bedroom, the audiotape of L.S.’s interview and Investigator Gilliam’s written summary of the interview both contain the same information. As to whether L.S.’s mother was present in the bedroom when the alleged sexual abuse occurred, nothing that L.S. stated during the audiotaped interview was in tension with her trial testimony that her mother was not present during the sexual abuse. As to L.S.’s testimony at trial that appellant told L.S. to fondle her younger brother (on her mother’s side of the family) in the bathtub, neither the audiotape of the interview nor the investigator’s written summary of the *324interview contains this assertion. Thus, the defense could have impeached L.S.’s testimony on that subject just as effectively using the written summary of the interview as it could have using the audiotape of the interview. Furthermore, it should be noted that L.S. actually referred to this specific incident well before trial—indeed, before her interview with Ms. Scheid and Investigator Gilliam—when L.S. told her father about this incident after she fondled her younger nephew (on her father’s side of the family). Therefore, the jury was certainly aware that L.S.'s assertion that appellant directed her to fondle her younger brother in the bathtub was not an assertion made for the first time at trial.

. I disagree with the majority’s assertion that L.S.’s testimony is "the only evidence linking” appellant to the crimes here. L.S.’s father testified at trial that L.S. told him that appellant "had abused her” by "sticking his fingers inside of her.” Moreover, L.S.'s stepmother testified that L.S. told her that she “had been sexually abused” and that *326“[appellant] had been placing his fingers on her private parts and that had been going on for some time.” These statements from L.S. were not made during the recorded interview—and, in fact, predated that interview. Furthermore, Ms. Amy Holloman, L.S.'s counselor who spent many hours with L.S., has concluded that L.S. was sexually abused, given the symptoms and behavior manifested by this child and Ms. Holloman's extensive experience in evaluating such children. No objection was made against any of this testimony, and there is no indication from the record that this testimony was admitted for any purpose other than the truth of the matter asserted. While all of this evidence, of course, originated from L.S.'s own statements and behavior, the very nature of sexual assault and sexual abuse cases is that there are no eyewitnesses to the sexual abuse other than the perpetrator and the victim. That is why the testimony of the victim in such cases is enough to obtain a conviction. See, e.g., Fisher v. Commonwealth, 228 Va. 296, 299, 321 S.E.2d 202, 204 (1984) (noting that “the victim’s testimony, if credible and accepted by the finder of fact, is sufficient evidence, standing alone, to support the conviction” in a rape or sexual abuse case).

. For example, in Kyles, the United States Supreme Court held that the suppressed Brady evidence significantly eroded the reliability of identifications of Kyles made by two key prosecution witnesses—and also called into question whether the informant in that case should have been considered a suspect. Kyles, 514 U.S. at 441-43, 445-47, 115 S.Ct. at 1569-72. Moreover, in Workman, the Supreme Court of Virginia held that, as to Workman’s claim of self-defense, “Workman was deprived of introducing evidence of three recent incidents involving Bumbry firing weapons at others.” Workman, 272 Va. at 650, 636 S.E.2d at 377. "Most certainly, such evidence has the potential to be powerful impeachment of Bumbry's statement at trial that he did not have a gun at the scene and his denial” that he carried firearms.” Id. *328at 650, 636 S.E.2d at 377-78 (emphasis added). Therefore, Workman’s Brady claim implicated "evidence of Workman’s reasonable apprehension for his safety and evidence of who was the aggressor in this altercation." Id. at 650, 636 S.E.2d at 378.

. In response to Investigator Gilliam’s final question asking where the last incident of sexual abuse occurred, L.S. stated, "um the last time was last year after I saw last year um when I was seeing him um it wasn't when we were living in the trailer it was when I was like living with”—and then the tape recorder stopped recording the rest of her answer. According to Investigator Gilliam’s summary of the interview, L.S. subsequently indicated that the last incident of sexual abuse occurred at the family friend’s trailer home, which the investigator determined was in the Green Acres Trailer Park in Dinwiddie County. The audiotape reflects that L.S. stated earlier in the interview that appellant did not sexually abuse her at that trailer home. While it is true that L.S. is never actually heard saying at the conclusion of the interview that the last incident of sexual abuse occurred there, it should be noted that the Commonwealth’s response to appellant’s pre-trial motion for a bill of particulars indicated that appellant was alleged to have committed criminal acts at the Green Acres Trailer Park—in addition to the white house. Thus, the Commonwealth’s bill of particulars response could be used to corroborate Ms. Scheid’s and Investigator Gilliam's testimony that L.S. stated that she was sexually abused at the trailer park, as reflected by the investigator's written summary of the interview.

. While the majority opinion vaguely criticizes this dissenting opinion for "pars[ing] L.S.'s testimony item by item,” I am simply following the United States Supreme Court's instructions for reviewing a Brady claim. As the Supreme Court explained in Kyles, an appellate court reviewing a Brady claim must “evaluate the tendency and force of the undisclosed evidence item by item; there is no other way.” Kyles, 514 U.S. at 437 n. 10, 115 S.Ct. at 1578. The appellate court should then determine the “cumulative effect [of this evidence] for purposes of materiality separately” at the conclusion of the Brady analysis. Id. I have, therefore, evaluated each of appellant’s contentions regarding L.S.'s pre-trial interview and trial testimony item by item (and have noted that several of appellant’s contentions simply lack force for the purpose of a Brady analysis). Based on United States Supreme Court *331precedent, there is no other way of conducting a Brady materiality analysis to determine, in the end by considering the whole case, whether confidence in the verdict has been undermined.

. Significantly, this incident with L.S.’s nephew was entirely consistent with Ms. Holloman’s expert testimony reflecting her very common *332sense observation that, as she indicated, young children who have been the victims of sexual abuse will then tend to ”act[] out sexually” towards others.