Alexander Almond, Jr v. Commonwealth ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Felton and Kelsey
Argued at Richmond, Virginia
ALEXANDER ALMOND, JR.
MEMORANDUM OPINION * BY
v. Record No. 3071-01-2 JUDGE D. ARTHUR KELSEY
DECEMBER 17, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Timothy J. Hauler, Judge
Matthew P. Geary for appellant.
Jennifer R. Franklin, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
The trial court convicted the appellant, Alexander Almond,
Jr., of sexually battering and forcibly sodomizing a
seven-year-old girl, in violation of Code §§ 18.2-67.3 and
18.2-67.1. At trial, the Commonwealth offered the corroborative
testimony of the child's stepmother under the recent complaint
rule codified by Code § 19.2-268.2. Almond objected, arguing
that the child's "delayed making of the statement" took it
outside of the recent complaint rule. The trial court overruled
the objection.
*
Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
For two reasons, Almond claims that the trial court erred
by admitting the stepmother's corroborative testimony. First,
Almond argues that the trial judge did not make sufficient
findings on the record to support the admission of the
testimony. Subsumed within this argument is the contention that
the child unreasonably delayed her complaint to her stepmother.
Second, Almond argues that, irrespective of the timeliness of
the child's complaint, the trial court erred by allowing the
stepmother to testify regarding certain factual details of the
complaint. Finding neither contention persuasive, we affirm.
I.
On appeal, we must review the evidence "'in the light most
favorable to the Commonwealth'" and grant it the benefit of any
reasonable inferences. Ward v. Commonwealth, 264 Va. 648, 654,
570 S.E.2d 827, 831 (2002) (quoting Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975)).
That principle requires us to "'discard the evidence of the
accused'" which conflicts, either directly or inferentially,
with the Commonwealth's evidence. Wactor v. Commonwealth, 38
Va. App. 375, 380, 564 S.E.2d 160, 162 (2002) (quoting Watkins
v. Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859, 866
(1998)). We view the facts of this case, therefore, through
this evidentiary prism.
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In 1999, the victim, K.F., resided with her divorced
mother, younger brother, and maternal grandparents at her
grandparents' home in Chesterfield. Her father resided in North
Carolina with his new wife and had regular visitation with K.F.
K.F.'s mother dated Almond throughout the year of 1999.
From January to at least December 1999, Almond visited
K.F.'s residence during the daytime "two or three days a week."
K.F.'s grandparents normally departed the house in the morning
for work, leaving K.F., her four-year-old brother, and her
mother alone. K.F.'s mother was enrolled in classes and spent
much of her time upstairs doing homework on a computer during
the afternoon, enabling Almond to spend unsupervised time with
K.F. downstairs.
During these unsupervised times, K.F. testified that Almond
attempted "to have sex" with her. Specifically, K.F. testified
that Almond unzipped his pants and "put his hands behind [her]
head and made [her] suck him." On other occasions, K.F.
testified, Almond touched her on her chest, pulled down her
shorts and underwear and touched her "privates . . . between
[her] two legs" with his finger.
K.F. testified that she was too scared to tell her mother
what was happening because she was afraid of Almond and she was
afraid that her mother might not believe her. As a result, it
was not until July 2000, during a visit with her father in North
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Carolina, that K.F. finally complained to her stepmother about
Almond's actions. She told her stepmother "[j]ust to get it out
so it could stop happening."
After K.F's testimony, the Commonwealth called the
stepmother to corroborate K.F.'s complaint. The stepmother
testified that during a visit to North Carolina, K.F. "said that
she had something she wanted to talk to me about in the bathroom."
At that point, Almond's counsel objected: "Objection as to what
[K.F.] has to say." Explaining the nature of this objection,
counsel stated:
Judge, just for the record, I'd state that I
think a lot of the case law deals with
parents and stepparents as far as the
delayed making a statement.
The Commonwealth argued in favor of admitting the testimony on the
basis of the recent complaint exception to the hearsay rule and
proffered a number of cases supporting its argument. The court
overruled Almond's objection, stating only that it was "familiar
with the cases" the Commonwealth cited. 1
The stepmother testified that K.F. told her "Alex tried to
have sex with me." She asked the seven year old "what she meant
1
Almond briefly argued that "the Castelow case . . . can be
read either way" in response to the Commonwealth's citation of
Castelow v. Commonwealth, 29 Va. App. 305, 512 S.E.2d 137
(1999), regarding the issue of a victim's delay in making a
complaint. Almond, however, made no further objections
regarding the recent complaint rule.
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by it" and stated that K.F. told her "he had pulled down her
shorts and underwear and played with her private areas." The
stepmother asked the victim, "What do you mean by your private
areas?," and K.F. responded, "Where I pee from."
In response to further questioning, the stepmother
testified that two days later, K.F. confided additional
incidents to her. Specifically, K.F. told her stepmother that
"Alex had made her put her mouth on his penis, and he would take
her head and push it up and down and that, after he did this for
a while, some slimy gook stuff had come out the end of it."
Almond failed to object to any portion of this testimony.
After hearing the evidence, just prior to closing
arguments, the trial judge made the following unprompted remark:
The Court needs to relate for the record
that in denying the defense motion regarding
the objection to the -- or the recent
complaint that the Court did consider the
statutory requirements of 19.2-268.2.
Neither the Commonwealth nor Almond offered any response to the
court's statement. Following closing arguments, the trial court
found the evidence established Almond's guilt beyond a
reasonable doubt on the indictments alleging aggravated sexual
battery and forcible sodomy.
II.
Almond assigns error to the trial court's admission of the
stepmother's testimony under the recent complaint exception to the
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hearsay rule. Decisions on the admission of such evidence "lie
within the trial court's sound discretion and will not be
disturbed on appeal absent an abuse of discretion." Mitchell v.
Commonwealth, 25 Va. App. 81, 84, 486 S.E.2d 551, 582 (1997)
(citing Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838,
842 (1989)); see also Leonard v. Commonwealth, 39 Va. App. 134,
148, 571 S.E.2d 306, ___ (2002) (admissibility issues fall within
the "broad discretion of the trial court").
A.
Code § 19.2-268.2 codified the recent complaint exception to
the hearsay rule. See generally Brown v. Commonwealth, 37
Va. App. 169, 554 S.E.2d 711 (2001); Terry v. Commonwealth, 24
Va. App. 627, 484 S.E.2d 614 (1997). The exception applies only
to criminal sexual assault. Code § 19.2-268.2 permits testimony
of the "fact that the person injured made complaint of the offense
. . . not as independent evidence of the offense, but for the
purpose of corroborating the testimony of the complaining
witness."
Almond argues that the trial court erred by making "no
findings on the record" to support the admission of the testimony.
Almond relies on Castelow v. Commonwealth, 29 Va. App. 305, 311,
512 S.E.2d 137, 140 (1999), which requires the trial judge to
exclude recent complaint testimony when the victim's delay in
making the complaint is "unexplained or inconsistent with the
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occurrence of the offense." However, Almond incorrectly reads
Castelow to add a requirement that the trial court must make its
foundation findings explicit on the record.
Code § 19.2-268.2 does not require a trial court to make
express factual findings prior to admitting a recent complaint.
We certainly agree with Almond that it would be better practice
for a trial judge to state such findings on the record. Doing so
would not only serve to clarify the issues for the litigants and
avoid unnecessary appeals, it would defeat the unfair criticism of
trial judges as being result-oriented in their decisionmaking and
relying on legal analysis only as an after-the-fact rationale.
Indeed, Almond lodges just such a charge in this case. See
Appellant's Brief at 11 (alleging the trial judge made his
unprompted remark about Code § 19.2-268.2, long after he had
sustained the objection, simply "as an afterthought").
But the fact remains —— the failure of a trial court to
record its express findings on routine evidentiary matters, in
itself, does not constitute an abuse of discretion. "Absent clear
evidence to the contrary in the record, the judgment of a trial
court comes to us on appeal with a presumption that the law was
correctly applied to the facts." Yarborough v. Commonwealth, 217
Va. 971, 978, 234 S.E.2d 286, 291 (1977); Shenk v. Shenk, 39
Va. App. ___, ___, ___ S.E.2d ___, ___, 2002 Va. LEXIS 680 at *10
(2002) ("A trial court is presumed to apply the law correctly.");
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Oliver v. Commonwealth, 35 Va. App. 286, 297, 544 S.E.2d 870, 875
(2001) ("The trial court's judgment is presumed to be correct.").
This presumption assumes the trial court made whatever subsidiary
factual findings necessary to support its decision to admit
contested evidence. Put another way, when the trial judge said
that in overruling Almond's objection "the Court did consider the
statutory requirements of 19.2-268.2," we take him at his word.2
The specific findings Almond contends the court failed to
make relate to the timeliness of K.F.'s complaint to her
stepmother. "'The initial determination of timeliness under the
recent complaint rule is committed to the sound discretion of the
trial court, and thereafter, timeliness is a matter for the trier
of fact to consider in weighing the evidence.'" Brown, 37
Va. App. at 172-73, 554 S.E.2d at 713 (quoting Woodard v.
Commonwealth, 19 Va. App. 24, 27, 448 S.E.2d 328, 330 (1994));
Terry, 24 Va. App. at 634-35, 484 S.E.2d at 617-18. The
timeliness question asks whether the complaint has been made
"'without a delay which is unexplained or is inconsistent with the
occurrence of the offense.'" Woodard, 19 Va. App. at 27, 448
2
Cf. Napert v. Napert, 261 Va. 45, 47, 540 S.E.2d 882, 884
(2001) ("Although a better practice would be for a trial court
to include a statement reflecting its decision to exercise its
discretion, in the absence of such a statement, we presume that
a trial court exercised its discretion to dispense with the
Rule's requirements. Courts are presumed to act in accordance
with the law and orders of the court are entitled to a
presumption of regularity.").
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S.E.2d at 330 (quoting Edward W. Cleary, McCormick on Evidence
§ 297 (3d ed. 1984)) (emphasis omitted).
We find ample evidence in the record to support the trial
court's implicit finding that K.F.'s delay was both explainable
and consistent with the offense. K.F. testified that she was
afraid her mother would not believe her and continued to fear
Almond given what he had done to her. Such fears are common and
accepted explanations for delay in notifying others of sexual
abuse —— particularly when the victim is a minor. See, e.g.,
Brown, 37 Va. App. at 173, 554 S.E.2d at 713 (child "didn't think
anybody was going to believe" her and "felt scared and threatened"
by the sex offender); Terry, 24 Va. App. at 636, 484 S.E.2d at 618
(child was "afraid her mother would not believe her" and she was
afraid her father would hurt the assailant and "end up in jail").
Such delays are "completely consistent with the all too common
circumstances surrounding sexual assault on minors." Woodard, 19
Va. App. at 28, 448 S.E.2d at 330.
Finally, Almond argues that while K.F.'s fear that her mother
would not believe her "provides a conceivably valid explanation,"
it "does not explain the delay in telling anyone else," including
her stepmother or father. We do not find this to be a convincing
distinction. A child on the witness stand should not have to
itemize the universe of potential reportees to explain her delay.
Viewing the evidence in the light most favorable to the
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Commonwealth, it is reasonable to infer that a seven-year-old
child's fear in this regard would be as acute, if not more so,
with regard to her stepmother as it was with regard to her mother.
B.
Almond also claims the trial court erred by allowing the
stepmother to testify about the details of the complaint. At
trial, however, Almond failed to make this specific objection.
See Rule 5A:18. Nowhere in the record did Almond object that the
details reported by K.F. were inadmissible. Because the trial
court did not have the opportunity to consider this issue during
the trial, Rule 5A:18 bars us from considering the issue for the
first time on appeal. See Buck v. Commonwealth, 247 Va. 449,
452-53, 443 S.E.2d 414, 416 (1994) (holding that an appellate
court will not consider an argument on appeal different from one
raised at trial even if it is related to the same issue); West
Alex. Prop. v. First Va. Mort., 221 Va. 134, 138, 267 S.E.2d 149,
151 (1980) ("On appeal, though taking the same general position as
in the trial court, an appellant may not rely on reasons which
could have been but were not raised for the benefit of the lower
court."); Shenk, 39 Va. App. at ___, ___ S.E.2d at ___, 2002 Va.
LEXIS 680 at *11 (to preserve an issue for appeal, the "specific
argument" made on appeal must have been made in the trial court).
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Though Rule 5A:18 contains a "good cause" or "ends of
justice" exception to procedural default, we decline to use it in
this case. See generally M. Morgan Cherry & Associates, Ltd. v.
Cherry, 38 Va. App. 693, 701, 568 S.E.2d 391, 395 (2002) (en
banc). This exception "'is narrow and is to be used sparingly'"
by an appellate court. Redman v. Commonwealth, 25 Va. App. 215,
220-21, 487 S.E.2d 269, 272 (1997) (quoting Brown v. Commonwealth,
8 Va. App. 126, 132, 380 S.E.2d 8, 10 (1989)).
Before we will apply the exception, "a defendant must
affirmatively show that a miscarriage of justice has occurred, not
that a miscarriage might have occurred." Id. (citing Mounce v.
Commonwealth, 4 Va. App. 433, 436, 357 S.E.2d 742, 744 (1987))
(emphasis in original); Andrews v. Commonwealth, 37 Va. App. 479,
494, 559 S.E.2d 401, 409 (2002). This showing cannot be made
except in "extraordinary situations," when we fear that "clear,
substantial and material error" has occurred. Phoung v.
Commonwealth, 15 Va. App. 457, 463, 424 S.E.2d 712, 716 (1992)
(citation omitted). In this case, we see no occasion for
declaring the trial court's admission of the details of the recent
complaint to be a miscarriage of justice. 3
3
See generally Mitchell v. Commonwealth, 25 Va. App. 81,
86, 486 S.E.2d 551, 553 (1997) ("It is unreasonable to expect
the victim of such an offense, particularly a child, to express
his report in succinct, technical terms. It is consistent with
human experience that such a victim will lodge his complaint in
the form of a description of the event, and in that description
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III.
In sum, ample evidence in the record explains K.F.'s delay in
complaining to her stepmother. As a result, the trial judge did
not abuse his discretion by admitting the testimony under the
recent complaint rule codified in Code § 19.2-268.2. And because
Almond failed to make a specific objection directed to the details
of K.F.'s complaint, as opposed to the timeliness of the
complaint, Rule 5A:18 bars this issue from being raised for the
first time on appeal.
Affirmed.
lies his complaint of the offense. The brother's testimony
described such a complaint. It exceeded in no significant way a
report of the offense. The details of the victim's complaint
were elements of the offense. Without those details, the
complaint would have been incomplete.").
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