Castelow v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Bray and Senior Judge Overton
Argued at Norfolk, Virginia

WAYNE COLLINS CASTELOW
OPINION BY
v. Record No. 1177-98-1 JUDGE JAMES W. BENTON, JR.
MARCH 16, 1999
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Verbena M. Askew, Judge

Charles E. Haden for appellant.

Ruth Morken McKeaney, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.

Wayne Collins Castelow appeals from a conviction for

aggravated sexual battery against a thirteen-year-old child. See

Code § 18.2-67.3. He contends the trial judge erred (1) in

admitting testimony that the child made a complaint sixteen

months after the alleged offense, (2) in quashing his subpoena

for the child's diary, and (3) in finding the evidence sufficient

to prove the offense. For the reasons that follow, we reverse

the conviction and remand for a new trial.

I.

On October 27, 1995, the thirteen-year-old child lived with

her father and was scheduled to visit her mother, who was married

to Wayne Castelow's brother. The child's mother testified that

the child arrived after school on October 27 and stayed the

weekend in the mother's home. She testified that Castelow was in

her home on the night of October 27. The child's mother also
testified that when she and her husband went to their bedroom at

10:30 p.m., Castelow was downstairs with the child and the

mother's twelve-year-old son. She further testified that

Castelow left her home around 8:00 a.m. on October 28 when her

husband went to work. The child's mother recalled that day

because another child she was babysitting fell out a window.

The child testified that she and Castelow were watching

television alone in the living room of her mother's home after

11:00 p.m. on October 27. Around midnight, Castelow gave her

beer to drink as they watched television. She testified that she

had consumed six beers by 2:00 a.m. and was "drunk." When the

movie ended at approximately 2:00 a.m., the child rose from her

chair to go to bed and walked past Castelow. Castelow grabbed

her arm, causing her to fall to the floor, and then got on top of

her. He unbuttoned her blouse, touched her bare breasts, touched

the clothing over her vaginal area, and tried to kiss her. She

was able to get away between 2:00 and 2:30 a.m. and went to her

bedroom and locked her door. She testified that she saw Castelow

and her mother's husband drive away the next day between noon and

2:00 p.m. The child testified that she recalled the date of the

incident because it was the same weekend that her half-sister

fell out of a window at the house.
Sixteen months later, in February 1997, the child ran away

from home. When she returned, her stepmother spoke with her

privately and questioned her. The child's stepmother testified

that she had read something in the child's diary that caused her

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to question the child. Over objection, the child's stepmother

testified that when she questioned the child about the matter in

the child's diary, the child told her about the incident with

Castelow.

After a complaint was filed with the police, a detective

questioned Castelow. Castelow told the detective he could not

remember the date but he recalled an incident with the child at

his brother's home. According to Castelow, he was drinking beer

and smoking marijuana when the child asked him for a beer. As he

gave the beer to her, it spilled onto her chest. Castelow said

the child unbuttoned her shirt and placed Castelow's hand on her

chest. He then fondled and kissed her breast. According to

Castelow's statement, he also bit her breast at her request.

Castelow presented evidence at trial to establish that

neither he nor his brother were present at the child's mother's

home during the weekend in question. Castelow's brother

testified he was living apart from his wife during that time. He

recalled that he was living with his parents the weekend the

other child fell from his wife's window.
Castelow's father testified that Castelow's brother was

living in his parents' home the weekend in question. He recalled

being at home when Castelow's brother received a telephone call

regarding a child falling from the window. Castelow's mother

confirmed that fact and testified that Castelow's brother was

living with them when he received the telephone call. She also

testified that Castelow told her after he was arrested that the

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child had placed his hand in her blouse and he had touched her

breast.

Castelow's employer testified that his employment records

indicate Castelow was at work distributing newspapers in North

Carolina on October 27, 28, and 29 of 1995. He also testified

that the distance from Newport News to his place of business can

be travelled in two and one-half hours and that Castelow's work

day routinely began at 6:00 a.m., ending two to two and one-half

hours later.

The trial judge found "that [the child] was credible," that

her story [was] believable," "that the outcry, by telling another

individual, was corroboration for that testimony," and "that the

explanation . . . provided by . . . Castelow, to the detective in

some way corroborates" the child's testimony. The trial judge

convicted Castelow of aggravated sexual battery.

II.

Castelow first contends the trial judge erred in admitting

the testimony of the child's stepmother concerning the child's

statement that Castelow sexually molested her. He argues that

the statement, coming sixteen months after the alleged event, was

not a recent complaint. The Commonwealth responds that the trial

judge did not abuse her discretion in admitting the testimony as

corroboration, pursuant to Code § 19.2-268.2. We hold that the

evidence did not provide a proper foundation for the admission of

the child's complaint to her stepmother.

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 The rule has been long established by case decisions that a

complaint recently made by the victim of a rape is admissible.

See Haynes v. Commonwealth, 69 Va. (28 Gratt.) 942, 947-48

(1877). See also Pepoon v. Commonwealth, 192 Va. 804, 810-11, 66

S.E.2d 854, 858 (1951). In 1993, the legislature statutorily

enacted the rule to apply to rape and other specifically

designated sexual offenses. In pertinent part, Code § 19.2-268.2

provides as follows:

Notwithstanding any other provision of law,
in any prosecution for criminal sexual
assault under Article 7 (§ 18.2-61 et. seq.)
of Chapter 4 of Title 18.2 . . . , the fact
that the person injured made complaint of the
offense recently after commission of the
offense is admissible, not as independent
evidence of the offense, but for the purpose
of corroborating the testimony of the
complaining witness.

The issue presented in this appeal is whether the child's

complaint to her stepmother was made "recently after commission

of the offense" as required by Code § 19.2-268.2.

In Pepoon, the Supreme Court noted that "a statement made a

week or ten days after the alleged attack . . . [was not] a

recent complaint." 192 Va. at 811, 66 S.E.2d at 858. In Herron
v. Commonwealth, 208 Va. 326, 157 S.E.2d 195 (1967), where the

complaint was made "the second day after it happened," id. at

330, 157 S.E.2d at 198, the Court ruled that the complaint was

recent and that the "delay in making a report . . . should bear

upon the weight to be given the evidence, not its admissibility."

Id.

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 Despite the Supreme Court's observation in Pepoon, we have

upheld admission of a complaint "made more than two months after

the crime." Woodard v. Commonwealth, 19 Va. App. 24, 25, 448

S.E.2d 328, 329 (1994). In so doing, we held that "[t]he initial

determination of timeliness under the recent complaint rule is

committed to the sound discretion of the trial [judge]." Id. at

27, 448 S.E.2d at 330. We noted, however, that in determining

whether the trial judge abused his or her discretion, we must

consider whether the evidence in the record provided a sufficient

foundation to allow the trial judge to be guided by the

"'requirement . . . that the complaint [shall] have been made

without a delay which is unexplained or is inconsistent with the

occurrence of the offense.'" Id. (citation omitted).

In Lindsey v. Commonwealth, 22 Va. App. 11, 467 S.E.2d 824

(1996), we affirmed a trial judge's admission of a complaint made

by a child "approximately two years after the alleged incident."

Id. at 13, 467 S.E.2d at 825. The child's testimony, in Lindsey,

that "she had been too frightened to tell her mother about the

incident," id. at 14, 467 S.E.2d at 825, provided the foundation
to guide the trial judge's exercise of discretion. Under those

circumstances, the trial judge could have determined that failure

to meet the statutory requirement that the "person injured made

complaint of the offense recently after commission of the

offense," Code § 19.2-268.2, was explained on the record and was

not inconsistent with the occurrence of the event. Indeed, after

the Lindsey decision, we noted the following:

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 We do not read Lindsey as adopting a rule
inconsistent with Woodard and the Virginia
common law. Under both Woodard and Lindsey,
timeliness is a factor in determining the
admissibility of the complaint, the weight of
the evidence, and the credibility of the
prosecutrix. Thus, under Code § 19.2-268.2,
timeliness, in relation to the reasons for
the delay, must initially be decided by the
trial judge in order to determine whether
evidence of the complaint can be admitted.

Terry v. Commonwealth, 24 Va. App. 627, 635, 484 S.E.2d 614, 618

(1997) (footnote omitted, emphasis added).

The evidence in this record proved that the child ran away

from her home in 1997, sixteen months after she alleges the

molestation occurred. When she returned home, her stepmother

inquired of her concerning some matter the mother had read in the

child's diary. During that discussion, the child made statements

about the alleged incident. See Herron, 208 Va. at 330, 157

S.E.2d at 198 (noting that "the answer of a fifteen-year-old girl

to questions put by the police [was] a complaint within the

meaning of the [common law] rule"). On direct examination, the

child testified that she had not previously "said anything to

anyone about it." No evidence in the record explains the delay

of sixteen months.

In the absence of evidence in the record explaining the

extraordinary delay, we hold that the evidence fails to provide a

foundation from which the trial judge could have found that the

complaint met the statutory requirement that it was made

"recently after commission of the offense." Code § 19.2-268.2.

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 III.

The Commonwealth contends that any error was harmless. We

disagree. "[U]nder Code § 8.01-678, a criminal conviction must

be reversed unless 'it plainly appears from the record and the

evidence given at the trial that' the error did not affect the

verdict." Lavinder v. Commonwealth, 12 Va. App. 1003, 1005, 407

S.E.2d 910, 911 (1991) (en banc).

To convict Castelow of aggravated sexual battery, the

Commonwealth bore the burden of proving beyond a reasonable doubt

the statutory elements. Specifically, where, as here, the child

"is at least thirteen but less than fifteen years of age," the

Commonwealth had to prove "[t]he act is accomplished against the

will of the complaining witness, by force, threat or

intimidation, or through the use of the complaining witness's

mental incapacity or physical helplessness." Code § 18.2-67.3.

The trial judge found that the child's testimony was

"believable." However, the trial judge also "[found] that the

outcry . . . was corroboration for that testimony." Clearly, the

trial judge gave weight to the corroborative effect of the

disputed testimony. Thus, we cannot say that the error did not

affect the verdict. Certainly, if the child's testimony had not

been fully credited by the trier of fact, the evidence was

sufficient to raise an arguable issue whether Castelow was guilty

of the felony or the lesser offense of assault and battery. See

e.g. Johnson v. Commonwealth, 5 Va. App. 529, 365 S.E.2d 237

(1988).

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 IV.

Castelow also contends the trial judge erred in quashing his

subpoena for the child's diary. Citing Rule 3A:11(b), the

Commonwealth argues that Castelow was not entitled to the diary

because it was not in the possession of the Commonwealth. The

Commonwealth also argues that the diary was not proved to be

relevant. Because this issue may arise on remand, we address it.

The record establishes that the child and the child's

stepmother testified in the Commonwealth's case-in-chief that the

child made her disclosure sixteen months after October 1995. The

stepmother testified that she questioned the child about Castelow

because of something she read in the child's diary. The child

testified that she responded to that inquiry.

During a lengthy recess of the trial after the Commonwealth

rested its case, Castelow sought the diary from the child

pursuant to a subpoena duces tecum. The Commonwealth filed a

motion to quash the subpoena on the grounds that the diary was

not discoverable because the child and her stepmother "are

parties to the action" and because "it is not within the

possession, custody, or control of the Commonwealth." 1 The trial

judge examined the diary in camera, ruled that it contained no

"exculpatory evidence," and quashed the subpoena.

1
No issue was raised concerning the Commonwealth's right to
object to a subpoena issued to a third party. Accordingly, we
expressly do not decide that issue.

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 The Constitution of Virginia provides "[t]hat in criminal

prosecutions [the accused] hath a right . . . to call for

evidence in his favor." Va. Const. art. I, § 8. "When sought by

an accused, a subpoena duces tecum furthers the accused's right

'to call for evidence in his favor.'" Gibbs v. Commonwealth, 16

Va. App. 697, 699, 432 S.E.2d 514, 515 (1993) (citation omitted).

This unqualified right includes "the right to
prepare for trial which, in turn, includes
the right to interview material witnesses and
to ascertain the truth." This right applies
with equal force to the procurement of
documentary evidence.

When a defendant seeks disclosure of
evidence, the standard to be applied in
determining its materiality is whether "a
substantial basis for claiming materiality
exists." If materials in the hands of third
parties "could be used at the trial," they
are the proper subject of a subpoena duces
tecum.

Cox v. Commonwealth, 227 Va. 324, 328, 315 S.E.2d 228, 230 (1984)

(citations omitted).

"In a criminal proceeding, either the defendant or the

Commonwealth may apply for a subpoena [under Rule 3A:12(b)] to

obtain writings and objects that are material to the proceeding

and in the possession of a third party." Gibbs, 16 Va. App. at

699, 432 S.E.2d at 515. Thus, under the rule governing the

issuance of a subpoena, "if objects or documents are material to

the offenses with which an accused is charged, the accused has

the right in preparing for trial to examine them." Id.

Furthermore, under Rule 3A:12(b), "the scope of a subpoena duces

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tecum is not limited to those objects or documents that may be

used at trial." Id.

In quashing the subpoena upon the finding that the material

was "not exculpatory," the trial judge used the wrong standard.

The proper inquiry was whether, in view of the testimony of the

child and the child's stepmother, a substantial basis existed for

claiming the diary was material to the offense charged. Because

we must remand for a new trial, we will not now undertake to

analyze from the record the issue of materiality. Furthermore,

we note that the diary was not proffered in the record by

Castelow or by the trial judge "after examining [it] in camera."

Id. at 701, 432 S.E.2d at 516. If this matter recurs on remand,

the trial judge must consider the issue of materiality.

For these reasons, we reverse the conviction and remand for

a new trial.

Reversed and remanded.

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