Opinion
Record No. 1858-91-1 Record No. 1857-91-1
August 17, 1993
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS RANDOLPH T. WEST, JUDGE.
Sa'ad El-Amin (Beverly D. Crawford, on briefs), for appellants.
Kathleen B. Martin, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Judges Baker, Willis and Bray.
Argued at Norfolk, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Charles H. Smith, Jr. (Smith) and Michael P. Thompson (Thompson) (appellants) appeal from judgments of the Circuit Court of the City of Newport News (trial court) that approved jury verdicts convicting them of one count each of rape and sodomy. Appellants contend that the trial court erred by (1) failing to conduct an evidentiary hearing on testimony sought to be admitted pursuant to Code § 18.2-67.7, the rape shield statute; (2) ruling that the victim's statement to her physician regarding her prior sexual conduct was inadmissible under the statute; and (3) admitting a piece of bloodstained carpet into evidence.
Although Smith's and Thompson's appeals to this Court were not consolidated, we will consider the issues presented by their appeals simultaneously. Appellants were tried together, and both the relevant facts and the issues presented on appeal are identical.
Viewed in the light most favorable to the Commonwealth, the evidence discloses that on October 7, 1989 at approximately 6:30 p.m., Kimberly Tabb (victim), a seventeen year old freshman at Hampton University, was talking to friends outside her dormitory. She was introduced to Thompson by Terrance Gatling, who was a friend of Walter Neighbors, her "big brother" at the university. Gatling told her that he was having a party that evening and that Neighbors would be there. Thompson, a student at Bowie State University, told her that he would also be at Gatling's party. Thompson and Gatling said they were "going to get something to eat" before the party and the victim decided to accompany them. She went to her room to get some "tampons and pads" because she was menstruating. She rode to the restaurant with Thompson, who also picked up his cousin, Smith, on the way there. Several other people joined them at the restaurant, and the group proceeded to Gatling's apartment at approximately 10:00 p.m. They talked, watched television, listened to music and drank alcohol.
Thompson told the victim that he wanted to talk to her in another room. She followed him into the bedroom, where Smith was sitting on the floor. Thompson "started acting really forward" and the victim began to feel uncomfortable. She told him to stop, but he grabbed her shoulders. Thompson and Smith pulled her shirt up and began biting her on her "chest and nipples." They held her down on the bed, pulled her clothes off and Smith "pulled [her] tampon out." Appellants then forced her to perform oral sodomy and have intercourse with each of them. Approximately six other men entered the room, helped to hold the victim down and raped her. The victim eventually fell asleep on the bed.
When she awoke the next morning, she saw "blood stains on the floor" from her tampon. Gatling drove her back to Hampton University at approximately 10:00 a.m. Later that day, the victim reported the incident to the police. She was taken to the hospital and examined by Dr. Holly Smith at 1:00 a.m. on October 9, 1989.
Prior to trial, each appellant filed a written notice, pursuant to Code § 18.2-67.7, that he intended to introduce evidence that the victim had "engaged in sexual intercourse . . . with Walter Neighbors . . . throughout the month of September, 1989; but that [the victim] falsely reported to Dr. Holly Smith . . . that the 'date and hour of prior intercourse' was [the] 'second week of August[, 1989].'" During trial, and outside the presence of the jury, the trial court heard the testimony of Dr. Smith and accepted a proffer of Neighbors' expected testimony. The court stated, "After we get it in, I'll see if we'll allow it or not." After hearing the evidence, the court held that it was inadmissible under the rape shield statute because it failed to establish a motive to fabricate.
At trial, a piece of stained carpet from Gatling's bedroom and a certificate of analysis identifying the stain as human blood were admitted into evidence. The trial court "accept[ed] it for the limited purpose only to substantiate there was blood on the carpet, in accord with [the victim's] testimony that there was blood on the carpet." Thompson and Smith testified at trial and admitted having sexual relations with the victim. Each alleged that she had consented.
Appellants first contend that the trial court erred by failing to conduct a separate evidentiary hearing on the testimony sought to be admitted under Code § 18.2-67.7, the rape shield statute. However, appellants failed to raise this issue before the trial court.
"Rule 5A:18 . . . places the parties on notice that they must give the trial court the first opportunity to rule on disputed evidentiary and procedural questions." Gardner v. Commonwealth, 3 Va. App. 418, 423, 350 S.E.2d 229, 232 (1986). "The purpose of this rule is to allow correction of an error if possible during the trial, thereby avoiding the necessity of mistrials and reversals. To hold otherwise would invite parties to remain silent at trial, possibly resulting in the trial court committing needless error." Id.; see also Hogan v. Commonwealth, 5 Va. App. 36, 45, 360 S.E.2d 371, 376 (1987). Because appellants failed to present this issue before the trial court, we are precluded from considering it on appeal. See Jacques v. Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991).
The ends of justice do not require our consideration of the issue. The trial court heard the testimony of Dr. Smith and accepted a proffer of the expected testimony of Walter Neighbors out of the presence of the jury. After hearing the evidence, the court determined that it did not fall within the exceptions to the rape shield statute and declined to admit it.See Johnson v. Commonwealth, 9 Va. App. 176, 183, 385 S.E.2d 223, 227 (1989). Thus, the trial court complied with the statute in all material respects.
Appellants further contend that the trial court erred by ruling that the victim's statement to her physician regarding her prior sexual conduct was inadmissible under the rape shield statute. By enacting Code § 18.2-67.7, "the General Assembly previous relationship with Walter Neighbors and the present case that would render the evidence probative of a motive to fabricate the charges against appellants. See id.
Code § 18.2-67.7 provides, in relevant part: A. In prosecutions under this article, general reputation or opinion evidence of the complaining witness's unchaste character or prior sexual conduct shall not be admitted. Unless the complaining witness voluntarily agrees otherwise, evidence of specific instances of his or her prior sexual conduct shall be admitted only if it is relevant and is:
1. Evidence offered to provide an alternative explanation for physical evidence of the offense charged which is introduced by the prosecution, limited to evidence designed to explain the presence of semen, pregnancy, disease, or physical injury to the complaining witness's intimate parts; or
2. Evidence of sexual conduct between the complaining witness and the accused offered to support a contention that the alleged offense was not accomplished by force, threat or intimidation or through the use of the complaining witness's mental incapacity or physical helplessness, provided that the sexual conduct occurred within a period of time reasonably proximate to the offense charged under the circumstances of this case; or
Appellants further argue that the evidence was admissible for impeachment purposes, "to prove that the statement [the victim] made to Dr. Smith regarding the last time she had sexual intercourse . . . was a lie" and to "attack [her] credibility." However, the rape shield statute contains no exception for impeachment evidence. "Where, as here, the only purpose offered for introducing evidence of the victim's prior sexual conduct is to . . . impeach her general credibility, such evidence is rendered inadmissible under the statute." Currie v. Commonwealth, 10 Va. App. 204, 207-08, 391 S.E.2d 79, 81 (1990) (citation omitted).
Clinebell v. Commonwealth, 235 Va. 319, 368 S.E.2d 263 (1988), upon which appellants rely, is distinguishable from the case presently before us. In Clinebell, the Supreme Court held that "prior false accusations" by the complaining witness are admissible "in a sex crime case," so long as the trial court "makes a threshold determination that a reasonable probability of falsity exists." Id. at 325, 368 S.E.2d at 266; see also Lambert v. Commonwealth, 9 Va. App. 67, 70, 383 S.E.2d 752, 754 (1989). Here, no evidence established that the victim made any prior false accusations. Unlike the statements at issue inClinebell, the statement made by the victim to her physician in this instance is evidence of specific prior sexual "conduct" with Walter Neighbors, which Code § 18.2-67.7 shields. See Evans, 14 Va. App. at 123, 415 S.E.2d at 855. Thus, the trial court did not err in ruling that the evidence was inadmissible.
Finally, appellants assert that the trial court erred by admitting into evidence a piece of stained carpet and certificate of analysis identifying the stain as human blood. Appellants argue that because the stain was not identified as the victim's blood, the evidence was irrelevant, immaterial and highly prejudicial.
Evidence is relevant if it has any logical tendency, however slight, to establish a fact at issue in the case. Jenkins v. Winchester Dep't of Social Servs., 12 Va. App. 1178, 1186, 409 S.E.2d 16, 21 (1991); Wise v. Commonwealth, 6 Va. App. 178, 187, 367 S.E.2d 197, 202-03 (1988); see also Spencer v. Commonwealth, 240 Va. 78, 90, 393 S.E.2d 609, 616, cert. denied, 498 U.S. 908 (1990). Here, the victim testified that Smith removed her tampon, resulting in "blood stains on the floor," which she observed the next morning. Each appellant testified, however, that he neither removed the tampon nor observed any blood. The evidence was thus relevant and material, as it tended to corroborate the victim's testimony and to lend credibility to her account of the incident. Further, we find no abuse of discretion in the trial court's determination that the probative value of the evidence exceeded any prejudicial effect that may have resulted from its admission. See Wise, 6 Va. App. at 188, 367 S.E.2d at 203.
For the reasons stated, the judgments of the trial court are affirmed.
Affirmed.