Lockhart v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Bumgardner, Humphreys and Clements
Argued at Richmond, Virginia

WEINTHAL LOCKHART
OPINION BY
v. Record No. 2575-99-3 JUDGE JEAN HARRISON CLEMENTS
FEBRUARY 20, 2001
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF BUCHANAN COUNTY
Keary R. Williams, Judge

Robert M. Galumbeck (Dudley, Galumbeck,
Necessary & Dennis, on brief), for appellant.

Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.

Weinthal Lockhart was tried by jury and convicted of

forcible sodomy for having anally and orally sodomized a boy

less than thirteen years of age, in violation of Code

§ 18.2-67.1. On appeal, he contends the trial court erred (1)

in denying his motion to suppress evidence obtained from a

search of his home that was invalid because the magistrate

failed to file the affidavit supporting the search warrant

within thirty days as required by Code § 19.2-54, (2) in not

allowing the admission of evidence of the victim's misconduct at

school and of his tendency to always make excuses for that

misconduct, (3) in denying his motion to set aside the verdict

based upon his contention that the verdict was not supported by
sufficient evidence because the victim's testimony was

inherently incredible, and (4) in denying his post-trial motion

to set aside the verdict and dismiss the indictment because the

Commonwealth failed to timely disclose exculpatory evidence.

Finding no error, we affirm the conviction.

I. BACKGROUND

In July 1995, eleven-year-old M.B. joined his older

brother, A.B., in working for Lockhart a few days a week on his

Buchanan County farm, cutting weeds, feeding livestock, and

doing other chores. Lockhart always paid them in cash or by

check for their work. Over time Lockhart also bought M.B. a

stereo, a bicycle, and a motorcycle. Occasionally, M.B. would

go to Lockhart's farm not to work but to ride motorcycles with

Lockhart's son, D., who was a year older than M.B.

Approximately one month after M.B. began working for him,

Lockhart started putting his hands down the child's pants and

masturbating him. Two weeks later, Lockhart began anally

sodomizing M.B. Lockhart made M.B. lie naked on Lockhart's bed

on his stomach and Lockhart, with his pants pulled down to his

ankles, put his penis in M.B.'s anus. He used a lubricant from

a blue and white tube he kept on his nightstand.

Lockhart anally sodomized M.B. in his bedroom approximately

once a week on ten to fifteen different occasions. Each

incident lasted approximately ten minutes. On two occasions,

Lockhart also orally sodomized M.B., placing M.B.'s penis in his

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mouth. In discussing these activities with M.B., Lockhart

referred to oral sodomy as a "blow job" and anal sodomy as being

"butt-fucked." Lockhart never asked M.B. to perform anal or

oral sodomy on him.

M.B., having observed Lockhart totally naked three to five

times, described Lockhart as having a lot of body hair all over

him, including in the area of his genitals and buttocks; as

having scars and a lot of moles on his back; and as being

uncircumcised. The Commonwealth's photographs of Lockhart's

nude body, viewed in their entirety, corroborated M.B.'s

description.

M.B. also identified several items recovered by the

Commonwealth during a search of Lockhart's home, including an

artificial vagina, a magazine showing pictures of naked men with

erections, and a magazine depicting a man using a device

purported to be a penis enlarger. M.B. first saw the artificial

vagina on a shelf in Lockhart's closet when he was getting a

shirt and then later when Lockhart removed it from the closet

and showed it to him. He first saw the magazines under

Lockhart's bed when Lockhart asked him to retrieve his safe from

there. Later, he observed Lockhart looking at the magazine

showing naked men with erections. Additionally, he and Lockhart

discussed the magazine depicting the penis enlarger and Lockhart

indicated he had such a device.

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 M.B. first reported the sexual abuse to his parents on

November 16, 1996, at a time when, according to M.B.'s mother,

M.B.'s father was upset because M.B. acted as if he loved

Lockhart more than he loved his father. M.B. admitted he

finally told his parents about the abuse because his father was

distressed at the thought that M.B. and his brothers did not

love him anymore and cared more about Lockhart than they did

about him.

Approximately two weeks before telling his parents about

the molestation, M.B. told his fifteen-year-old uncle and his

brother A.B. about it. M.B. then discussed the situation at

least one other time with A.B. before informing his parents.

A.B. testified that he observed Lockhart masturbating M.B. on

the bed in Lockhart's bedroom shortly after M.B. first told him

about the sexual abuse.

Dr. Roy Thomson, a pediatrician, physically examined M.B.

on November 21, 1996. He found that M.B.'s anal opening was

enlarged and that the muscles of his perineal sphincter had lost

their normal tone due to repeated penetration of the anus by an

object larger than the anal opening and firm enough to cause the

resultant trauma. The doctor concluded that the use of a penis

to repeatedly penetrate M.B.'s anus would be consistent with his

physical findings. M.B. never had anal intercourse with anyone

else and never had anything else placed inside his rectum prior

to being examined by the physician.

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 Taking the stand in his own defense, Lockhart, who was in

his fifties, testified that he had been separated from his wife

for eight years. He lived with his son, D., on the farm. M.B.,

with his parents' permission, would come to his farm two or

three times a week to do various chores. Occasionally, M.B.'s

parents would call and ask Lockhart to look after M.B. at

Lockhart's home. A "good worker," M.B. had the run of the house

and Lockhart trusted him like a son.

Lockhart further testified that, approximately a month

before M.B. accused Lockhart of molesting him, M.B. got into a

"major fight" with D. and cut his eye. After the fight,

Lockhart told M.B. that he could not come to the farm anymore.

Denying that he ever showed them to M.B., Lockhart stated

that he had the artificial vagina for approximately nine years

and the two sexually oriented magazines referred to by M.B. for

five or six years. He further stated that he used the lubricant

found in his bedroom as a conductor gel on the electrodes of a

medical device he used to decrease the pain in his injured back.

Lockhart denied ever threatening M.B., touching him on his

genitals, or sodomizing him, anally or orally. He suggested

that M.B. concocted the story about being sexually abused

because he was mad at Lockhart for banishing him from the farm

after the fight with D. He could not, though, suggest a reason

why A.B. would testify that he had observed such abuse.

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 II. MOTION TO SUPPRESS

The sexually oriented items obtained by the Commonwealth

from Lockhart's residence and admitted at trial were seized

pursuant to a search warrant issued by a magistrate. Lockhart

contends those items, and the photographs thereof, should have

been suppressed because the search was invalidated by the

magistrate's failure to file the supporting affidavit with the

clerk of the circuit court within thirty days of issuance of the

search warrant, as required by Code § 19.2-54.

Code § 19.2-54 requires the filing of a supporting

affidavit with the officer authorized to issue search warrants

(a magistrate, in this case) prior to the issuance of a search

warrant. The statute sets forth what must be included in the

affidavit and further provides that

[s]uch affidavit shall be certified by the
officer who issues such warrant and
delivered by such officer or other officer
authorized to certify such warrants to the
clerk of the circuit court of the county or
city wherein the search is made within seven
days after the issuance of such
warrant . . . .
Failure of the officer issuing such
warrant to file the required affidavit shall
not invalidate any search made under the
warrant unless such failure shall continue
for a period of thirty days.

Code § 19.2-54 (emphasis added).

Here, the affidavit filed in support of the search warrant

was subscribed and sworn to before the magistrate on November

20, 1996, by Larry Crouse, a special police officer and

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paralegal assistant for the office of the Commonwealth's

Attorney. The magistrate issued the search warrant on the same

date. Crouse executed the warrant later that same day and filed

it the following day, November 21, 1996, with the clerk of the

circuit court in Buchanan County, where the search was made.

Along with the original search warrant, Crouse filed an

inventory of the items seized during the search and the original

supporting affidavit. 1 More than ten months later, on August 25,

1997, the magistrate who issued the search warrant filed a copy

of the affidavit with the clerk of the circuit court.

Lockhart contends that Code § 19.2-54, being penal in

nature, must be construed strictly against the Commonwealth and

in favor of the accused. Therefore, he argues, the magistrate's

failure to file the required affidavit within the prescribed

thirty days invalidated the search. Hence, his argument

continues, the evidence seized pursuant to the search was not

admissible and should have been suppressed.

The Commonwealth maintains that the Supreme Court's

rationale in Quintana v. Commonwealth, 224 Va. 127, 295 S.E.2d

643 (1982), requires a less technical and less constrained

reading of Code § 19.2-54 when, as here, the notice-based

1
Crouse, rather than the magistrate who issued the search
warrant, also certified the original affidavit when he delivered
it to the clerk's office on November 21, 1996. Lockhart,
however, does not challenge the certification of the affidavit
on appeal.

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purpose of the statute is satisfied. Based on the record before

us, we agree with the Commonwealth that the rationale in

Quintana is controlling.

In Quintana, the defendant moved for suppression of

evidence seized in a search because, as in the instant case, the

magistrate failed to strictly comply with the procedural

requirements of Code § 19.2-54. Specifically, the magistrate

who issued the search warrant in Quintana failed to certify the

supporting affidavit before he filed it with the clerk of the

circuit court and did not do so within thirty days after

issuance of the search warrant. According to the defendant, the

uncertified affidavit was not "the required affidavit" under the

terms of the statute. Hence, the search was invalid, he

concluded, because the magistrate failed to file the required

affidavit within thirty days and because the statute necessarily

implies that, when the failure to file the required affidavit

continues beyond thirty days, the search is invalid even if

conducted the day the affidavit is filed.

Rejecting both the defendant's premise and conclusion, the

Court in Quintana reasoned as follows:

Having in mind the Fourth Amendment purposes
the statute was designed to foster, we
believe "the required affidavit" means the
affidavit required to support issuance of a
search warrant. Under the Fourth Amendment
warrant requirement, the content of that
affidavit must be sufficient to support a
finding of probable cause by a neutral and
detached magistrate. The [C]onstitution

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 does not require the magistrate to certify
an affidavit. The purpose of that
requirement in our statute is to insure that
the affidavit filed with the clerk for the
information of the accused is the same
affidavit upon which the finding of probable
cause was based. . . .
Finding that the statutory purpose was
fully served and that the omission of the
magistrate's signature in the jurat caused
defendant no prejudice, we hold that the
trial court properly overruled defendant's
motion to suppress.

Id. at 136, 295 S.E.2d at 646-47.

Plainly, the Supreme Court in Quintana, in addressing the

certification requirement of Code § 19.2-54, gave greater weight

to the achievement of the notice-based purpose of the statute

than to a strict, technical reading of the statute. We believe

the same reasoning applies to the filing requirement of Code

§ 19.2-54.

The United States Constitution does not require that the

supporting affidavit be filed by the magistrate (or other

officer authorized to certify search warrants). The purpose of

the filing requirement, like the certification requirement, "'is

to give the defendant reasonable opportunity to determine that

the affidavit on file is the same one upon which the

determination of probable cause was based.'" Robertson v.

Rogers, 2 Va. App. 503, 507, 346 S.E.2d 41, 44 (1986) (quoting

Garza v. Commonwealth, 228 Va. 559, 566, 323 S.E.2d 127, 131

(1984)), aff'd, 360 S.E.2d 715 (1987).

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 Here, the supporting affidavit filed by Crouse was the same

one he subscribed before the magistrate. The affidavit was on

file in the clerk's office available for inspection by Lockhart

the day after the search warrant was issued. We find,

therefore, that, even though the affidavit was delivered to the

clerk's office by the officer who executed the search warrant

rather than by the magistrate who issued the warrant, the

notice-based purpose of Code § 19.2-54 was achieved and Lockhart

suffered no prejudice as a result of the affidavit not having

been filed by the magistrate.

Accordingly, we hold that the trial court did not err in

denying Lockhart's motion to suppress.

III. EVIDENCE OF VICTIM'S MISCONDUCT AT SCHOOL

During cross-examination at trial, Lockhart's counsel asked

M.B.'s mother if M.B. had any disciplinary problems at school

during the time period he claimed Lockhart had sexually abused

him. The Commonwealth objected, asserting that such evidence

was not relevant to the issue of whether Lockhart sodomized the

child. When asked by the court how such evidence was relevant,

Lockhart's counsel stated only that he intended to ask M.B.'s

mother whether, when M.B. had disciplinary problems at school,

he would make excuses for those problems. The trial court

sustained the Commonwealth's objection, and Lockhart's counsel

proceeded to a different subject.

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 Lockhart now contends the trial court erred in not allowing

him to introduce evidence of the victim's misconduct at school

and of the excuses he made for that misconduct. He asserts in

his brief on appeal that such testimony was intended to

illustrate M.B.'s propensity to fabricate excuses and make up

stories as explanations when accused of wrongdoing at school and

to draw a connection between those incidents of fabrication and

the claim by M.B. that Lockhart sodomized him. That claim of

molestation, Lockhart asserts, was made up by M.B. as an

explanation or excuse for his banishment from Lockhart's farm

for fighting with D. and in response to his father's accusation

that M.B. cared more about Lockhart than he did about him.

"Evidence of specific acts of misconduct is generally not

admissible in Virginia to impeach a witness' credibility.

However, where the evidence . . . is relevant to show that a

witness is biased or has a motive to fabricate, it is not

collateral and should be admitted." Banks v. Commonwealth, 16

Va. App. 959, 963, 434 S.E.2d 681, 683 (1993) (citations

omitted).

When, however, an objection is sustained and a party's

evidence is ruled inadmissible, as in this case, "the party must

proffer or avouch the evidence for the record in order to

preserve the ruling for appeal; otherwise, the appellate court

has no basis to decide whether the evidence was admissible."

Smith v. Hylton, 14 Va. App. 354, 357-58, 416 S.E.2d 712, 715

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(1992). Thus, we will not consider testimony which the trial

court has excluded before it was presented without a proper

showing of what that testimony would have been. Holles v.

Sunrise Terrace, Inc., 257 Va. 131, 135, 509 S.E.2d 494, 497

(1999).

Here, we find nothing in the record that constitutes a

proper proffer of the rejected evidence. No proffer was made of

the mother's expected response to the question she was asked or

of any other questions that she would have been asked and

answers that she would have given. Likewise, Lockhart did not

proffer any other evidence from other sources that, if believed,

would allow the fact finder to reasonably infer that M.B. had a

motive to falsely implicate Lockhart in order to explain or

excuse his own misconduct. Despite Lockhart's suggestion to the

contrary, the response by defense counsel to the trial court's

query regarding the relevance of such evidence provides no basis

for determining the admissibility of the rejected testimony of

the mother.

Hence, without a proper proffer, we cannot ascertain on

appeal whether the evidence Lockhart sought to introduce was

relevant to show that M.B. had a motive to fabricate his

testimony. Lockhart's failure to make such a proffer therefore

precludes appellate review of this claim.

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 IV. SUFFICIENCY OF THE EVIDENCE

Lockhart also challenges the sufficiency of the evidence to

sustain his conviction. He contends the trial court should have

set aside the jury's verdict as contrary to the law and evidence

because he was convicted almost wholly on the victim's

testimony, which, he contends, was inherently incredible.

Specifically, Lockhart argues that M.B.'s testimony was so

replete with inconsistencies and contradictions and so contrary

to human experience that it was unbelievable. He identifies

several evidentiary details in the case about which he believes

M.B.'s testimony was inconsistent, including Lockhart's state of

undress before the first act of anal intercourse; the timing of

the last act of anal intercourse relative to when M.B. informed

his parents about his sexual encounters with Lockhart; the total

number of incidents of sodomy; whether M.B. kept returning to

Lockhart's farm because he thought Lockhart would stop having

sex with him or because Lockhart threatened him; the hairiness

of Lockhart's pubic area and buttocks; and whether M.B. watched

pornographic videos at Lockhart's house and, if so, the number

of videos watched. The evidence identified by Lockhart as being

contrary to human experience includes M.B.'s testimony that he

did not immediately go home or call his parents the first time

he was sodomized by Lockhart; that he waited so long to tell his

brother, uncle, and parents about the abuse; that his brother,

who was often at Lockhart's farm with him, did not see him

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having sex with Lockhart until shortly before he reported it to

his parents; and that Lockhart, despite watching pornographic

videos and engaging in sex with him and reading a pornographic

magazine in front of him, never discussed such sexual activities

with him and attempted to hide the magazine from him.

When the sufficiency of the evidence is challenged on

appeal, we must consider the evidence "in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom." Bright v. Commonwealth,

4 Va. App. 248, 250, 356 S.E.2d 443, 444 (1987). Furthermore, a

conviction will not be reversed unless "it appears from the

evidence that it is plainly wrong or without evidence to support

it." Sutphin v. Commonwealth, 1 Va. App. 241, 243, 337 S.E.2d

897, 898 (1985).

This case turns on the credibility of a young victim of

sexual abuse whose testimony clearly was not consistent in all

respects. Faced with the same issue in Swanson v. Commonwealth,

8 Va. App. 376, 382 S.E.2d 258 (1989), we affirmed the

defendant's conviction, noting, in reaching our decision, as

follows:

The fact that a witness makes
inconsistent statements in regard to the
subject matter under investigation does not
render his testimony nugatory or unworthy of
belief. It is the province of the trier of
the facts—jury or judge—"to pass upon such
inconsistent statements and give or withhold
their assent to the truthfulness of the
particular statement." It is firmly

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 imbedded in the law of Virginia that the
credibility of a witness who makes
inconsistent statements on the stand is a
question for the jury, or for the trial
court as a trier of the facts sitting
without a jury.

Id. at 378-79, 382 S.E.2d at 259 (quoting Shelton v. Mullins,

207 Va. 17, 22, 147 S.E.2d 754, 758 (1966)).

As we further noted in Swanson:

"In testing the credibility and weight
to be ascribed to the evidence, we must give
trial courts and juries the wide discretion
to which a living record, as distinguished
from a printed record, logically entitles
them. The living record contains many
guideposts to the truth which are not in the
printed record; not having seen them
ourselves, we should give great weight to
the conclusions of those who have seen and
heard them."
When the law says that it is for triers
of the facts to judge the credibility of a
witness, the issue is not a matter of
degree. So long as a witness deposes as to
facts which, if true, are sufficient to
maintain their verdict, then the fact that
the witness' credit is impeached by
contradictory statements affects only the
witness' credibility; contradictory
statements by a witness go not to competency
but to the weight and sufficiency of the
testimony. If the trier of the facts sees
fit to base the verdict upon that testimony
there can be no relief in the appellate
court.

Id. at 379, 382 S.E.2d at 259 (quoting Bradley v. Commonwealth,

196 Va. 1126, 1136, 86 S.E.2d 828, 834 (1955)).

The issue to be resolved in this case was one of fact. As

such, it was properly before the jury. The members of the jury

saw and heard M.B. testify at trial. Unlike us, they were able

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to observe and evaluate him and to weigh his testimony

accordingly, as well as the testimony of the other witnesses,

including Dr. Thomson, who confirmed that M.B.'s anus had been

repeatedly penetrated; M.B.'s brother A.B., who testified that

he had observed Lockhart masturbating M.B.; and Lockhart

himself.

During closing argument, Lockhart's counsel highlighted for

the jury the purported discrepancies and inconsistencies in

M.B.'s testimony. Lockhart's counsel also identified for the

jury those portions of M.B.'s testimony that, according to the

defense, were contrary to human experience. Nevertheless, the

jury found the victim credible, resolving the conflicts and

inconsistencies in his testimony against Lockhart and finding

ultimately that the evidence constituted proof of guilt beyond a

reasonable doubt.

Based on our review of the record, we cannot say the jury's

determination was plainly wrong or without credible evidence to

support it. The evidence was neither inherently incredible nor

so contrary to human experience as to render it unworthy of

belief as a matter of law. See Simpson v. Commonwealth, 199 Va.

549, 558, 100 S.E.2d 701, 707 (1957). The trial court,

therefore, did not err in refusing to set aside the jury's

verdict on the basis of insufficient evidence.

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 V. FAILURE TO DISCLOSE EXCULPATORY EVIDENCE

Lockhart further contends the trial court erred in denying

his motion to set aside the verdict and dismiss the indictment

because of the Commonwealth's failure to disclose exculpatory

evidence. The Commonwealth's failure to provide such evidence,

he claims, violated his due process rights under Brady v.

Maryland, 373 U.S. 83 (1963).

After the trial but prior to sentencing, Lockhart learned

that the victim and his family had given pretrial statements in

interviews with agents of the Commonwealth investigating the

case. Despite Lockhart's specific and proper request for

exculpatory evidence, the Commonwealth failed to disclose to him

before trial the existence of those statements and the notes

taken by the interviewers in connection with those statements.

The victim's undisclosed statements and the notes

associated therewith, Lockhart claims, contained information

that was inconsistent with M.B.'s testimony at the preliminary

hearing and at trial. Thus, according to Lockhart, such

evidence could have been used to more effectively cross-examine

M.B. and further impeach his credibility. The withheld

evidence, he argues, was, therefore, exculpatory and its

suppression by the Commonwealth a constitutional violation

warranting reversal of his conviction. 2

2
Lockhart also claims in his brief on appeal that the
suppressed statement of the victim's father was exculpatory

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 Lockhart specifically relies on the following allegations

in M.B.'s statements and the associated notes that, according to

him, contradict M.B.'s testimony at trial: (1) Lockhart gave

M.B. and the other kids beer and pills; (2) Lockhart required

M.B. and A.B. to sleep with him in his bed, one on either side

of him, but would not let them sleep in D.'s bed; (3) Lockhart

and M.B. slept either naked or in underwear; (4) Lockhart

threatened to shoot himself and the boys; (5) pictures were

taken of the children in their underwear; (6) Lockhart would not

let M.B. use the telephone; (7) Lockhart would not let M.B. in

any other room and would not let him use D.'s room; and (8) M.B.

never told A.B. about his sexual acts with Lockhart.

The trial court rejected Lockhart's argument related to the

suppressed pretrial statements and notes, finding that the

credibility of the victim had been the "whole issue at trial"

and that having additional evidence available to further impeach

the victim would not have "done any more to lessen [his]

credibility than [his] credibility was lessened in the eyes of

the jury . . . on cross examination." The court concluded that

because it revealed that, just before M.B. told his parents that
he had been sexually abused by Lockhart, M.B.'s father had been
crying and had suggested that his sons liked Lockhart better
than they liked him. While such evidence may be exculpatory, we
do not include the father's statement in our analysis because
essentially the same evidence was elicited early in the trial
from M.B.'s mother and also admitted by M.B.

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the Commonwealth's failure to disclose the subject statements

and notes did not violate Brady.

In order for the Commonwealth's withholding of the pretrial

interview statements and notes to have constituted a Brady

violation, the statements and notes must have been

(1) either directly exculpatory or have had impeachment value,

(2) suppressed by the government, and (3) material. Strickler

v. Greene, 527 U.S. 263, 280-81 (1999). The first two

components are unquestionably met. The allegations cited above

from M.B.'s statements and the related notes contradict to

varying degrees M.B.'s testimony at trial and, thus, had

impeachment value. Moreover, there is no dispute that the

Commonwealth failed to disclose the subject documents to

Lockhart. The determination, however, of whether the third

component--materiality--is established by the record is more

problematic.

There is no question that, had Lockhart been able to fully

discredit M.B.'s testimony, the outcome of the trial would have

been different. The evidence suppressed by the Commonwealth

could have been used to that end. It, therefore, appears at

first blush to be "material."

However, as the United States Supreme Court explained in

Strickler:

That . . . is not the standard the
petitioner must satisfy in order to obtain
relief. He must convince us that "there is

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 a reasonable probability" that the result of
the trial would have been different if the
suppressed documents had been disclosed to
the defense. . . . "The question is not
whether the defendant would more likely than
not have received a different verdict with
the evidence, but whether in its absence he
received a fair trial, understood as a trial
resulting in a verdict worthy of
confidence."
. . . [T]he materiality inquiry is not
just a matter of determining whether, after
discounting the inculpatory evidence in
light of the undisclosed evidence, the
remaining evidence is sufficient to support
the jury's conclusions. Rather, the
question is whether "the favorable evidence
could reasonably be taken to put the whole
case in such a different light as to
undermine confidence in the verdict."

Id. at 289-90 (quoting Kyles v. Whitley, 514 U.S. 419, 434-35

(1995)).

The materiality inquiry is a context-specific

determination; evidence that is material in one setting could be

immaterial in another. Spicer v. Roxbury Correctional Inst.,

194 F.3d 547, 560 (4th Cir. 1999). In this case, the victim was

subjected at trial to substantial impeachment on the details of

his story. The defense repeatedly contrasted his trial

testimony and preliminary hearing testimony. Lockhart's counsel

individually highlighted the discrepancies and inconsistencies

in his testimony during closing argument. Still, the jury

believed M.B. and found the core facts of his testimony

credible.

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 We agree with the trial court's assessment that the

victim's credibility would not have been damaged by the

additional impeachment evidence any more than it already had

been damaged at trial, particularly because the suppressed

evidence was of a no more significant nature than the

impeachment evidence already presented at trial. It was simply

more of the same type of evidence and would not, we conclude,

have put the whole case in such a different light as to

undermine confidence in the verdict.

We find, therefore, that when the suppressed impeachment

evidence in M.B.'s pretrial statements and the accompanying

notes is considered together with all the other impeachment

evidence adduced at trial, the additional evidence becomes

nothing more than cumulative impeachment evidence and, hence,

immaterial in this setting. Thus, we conclude that, on the

facts of this case, there is no reasonable probability that the

result of the trial would have been different if the suppressed

documents had been disclosed to the defense.

As the record does not establish a Brady violation, we hold

that the trial court did not err in denying Lockhart's motion to

set aside the verdict on this ground.

Accordingly, Lockhart's conviction is affirmed.

Affirmed.

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