Roy T. Hutchison v. Commonwealth of Virginia ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Bumgardner
Argued at Salem, Virginia
ROY T. HUTCHISON
MEMORANDUM OPINION * BY
v. Record No. 0131-97-3 JUDGE RUDOLPH BUMGARDNER, III
APRIL 28, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CRAIG COUNTY
Duncan M. Byrd, Jr., Judge
Michelle T. Gibson (Harvey S. Lutins;
Gordon H. Shapiro; Jonathan S. Kurtin;
Lutins, Shapiro & Kurtin, on brief), for
appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Richard Cullen, Attorney General, on
brief), for appellee.
Roy T. Hutchison was convicted at a bench trial of rape of a
female under the age of thirteen years. The defendant claims
that the trial court erred in admitting the victim's hearsay
statements under the recent complaint exception to that rule. We
find that any error was harmless and affirm the conviction.
The indictment charged that the rape occurred between July
1989 and July 1994. At the time of the trial, July 1997, the
victim was seventeen. She testified that the defendant, who was
her uncle, had touched her vagina and breasts and had placed his
penis in her vagina about ten different times. The first time
was when she was eleven years old and in the fourth grade. This
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
occurred at her grandmother's home where the defendant lived.
The victim first made a complaint in 1995 to her school
counselor. She told the counselor that the first rape occurred
when she was in the third grade. The episodes had continued
until that May and also included digital penetration of her
vagina and anus, forced oral sex, and threats if she ever told
anyone. On cross-examination, the victim testified that her
cousin had seen one incident.
The victim's cousin, sixteen at trial, testified that she
saw the defendant rape the victim. John Young, a long time
acquaintance of the defendant, testified the defendant told him
he had sexual relations with the victim. The statement was an
unsolicited one before the defendant had been accused of
anything. The defendant admitted to the sheriff's department
that he had put his penis in the victim on three occasions. At
trial he denied making that statement or having had any improper
relations with the victim.
The defendant complains that the statements of the victim to
the counselor should not have been admitted because they were not
made recently after the commission of the offense. The recent
complaint of rape exception to the hearsay rule was expanded in
its application and then enacted as Code § 19.2-268.2. Early
cases indicated that the complaint needed to be made soon after
the rape. See Pepoon v. Commonwealth, 192 Va. 804, 810, 66
S.E.2d 854, 858 (1951). Later cases held that delay in making
the report should not control its admissibility but should be a
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factor bearing on the weight to be given the evidence. See
Herron v. Commonwealth, 208 Va. 326, 330, 157 S.E.2d 195, 198
(1967).
Timeliness of the complaint bears on the exercise of the
discretion vested in the trial court in deciding whether to admit
it. Thereafter, timeliness is a factor considered by the trier
of fact in weighing the evidence. See Woodard v. Commonwealth,
19 Va. App. 24, 27, 448 S.E.2d 328, 330 (1994); Terry v.
Commonwealth, 24 Va. App. 627, 634-35, 484 S.E.2d 614, 617-18
(1997). It is a question of weight rather than admissibility.
See Lindsey v. Commonwealth, 22 Va. App. 11, 16, 467 S.E.2d 824,
827 (1996). We find that the trial court did not abuse its
discretion in admitting the statement though it was made long
after the event.
The defendant also complains that the trial court erred in
admitting details of the statement made to the school counselor
rather than just the fact of the complaint. We find that any
error made in admitting more detail than permitted was harmless.
The evidence of other witnesses independent of anything the
school counselor attributed to the victim clearly established
everything contained in that statement. "Even though testimony
is objectionable as hearsay, its admission is harmless error when
the content of the extra-judicial declaration is clearly
established by other competent evidence." Schindel v.
Commonwealth, 219 Va. 814, 817, 252 S.E.2d 302, 304 (1979).
Although the trial court may have erred in admitting details
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of the victim's statement, the defendant is entitled to a
reversal of his conviction only where the "improper evidence
suggests a manifest probability that it was prejudicial to the
defendant." Rider v. Commonwealth, 8 Va. App. 595, 600, 383
S.E.2d 25, 27 (1989). "An error does not affect a verdict if a
reviewing court can conclude, without usurping the jury's fact
finding function, that, had the error not occurred, the verdict
would have been the same." Lavinder v. Commonwealth, 12 Va. App.
1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc).
Considering that the victim's cousin observed the defendant
rape the victim, the defendant confessed to law enforcement that
he had inserted his penis in the victim on three occasions, and a
long time acquaintance of the defendant testified that the
defendant had told him that he had sexual relations with the
victim, we find no reversible error by the admission of the
challenged evidence. Upon review of the entire record, any error
was "inconsequential when viewed in comparison to the
overwhelming evidence of [the defendant's] guilt." Hanson v.
Commonwealth, 14 Va. App. 173, 176, 416 S.E.2d 14, 16 (1992).
We affirm the conviction of the defendant.
Affirmed.
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