Charles Russell Guy v. Commonwealth ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Humphreys and Agee
Argued at Chesapeake, Virginia
CHARLES RUSSELL GUY
MEMORANDUM OPINION * BY
v. Record No. 2270—01-1 JUDGE ROBERT P. FRANK
AUGUST 6, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF NORTHAMPTON COUNTY
Glen A. Tyler, Judge
Lynwood W. Lewis, Jr. (Vincent, Northam &
Lewis, on brief), for appellant.
Donald E. Jeffrey, III, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Charles Russell Guy (appellant) appeals from his jury trial
convictions for aggravated sexual battery, in violation of Code
§ 18.2-67.3, and object sexual penetration, in violation of Code
§ 18.2-67.2. On appeal, he argues the trial court (1) improperly
admitted hearsay testimony and (2) erred in overruling his motion
to strike the evidence. 1 For the reasons stated below, we affirm
the convictions.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
Appellant argues the trial court should have granted his
motion to strike the evidence because without inappropriately
admitted hearsay evidence, the evidence was insufficient to
convict him of these offenses. Although appellant's
characterization of his argument is confusing, he clearly raises
BACKGROUND
M.G., an eight-year-old girl, walked over to her neighbors'
house on October 15, 1999. Her neighbors, appellant and his
wife, lived in a house directly behind M.G.'s home. After M.G.
had been gone for thirty minutes, her mother walked down the
lane toward appellant's home, calling out M.G.'s name.
Mother knocked on appellant's door, which was answered by
his stepson. The stepson told M.G.'s mother that the girl had
been at the home, but left, and he did not know anything more
about her. Mother then continued to search for her daughter.
Suddenly, M.G. responded to her mother's calls, sounding
very close and clear. Mother found M.G. in the last shed of
three that were beside appellant's house. M.G. was lying on the
floor of the shed with her pants and underwear down around her
ankles.
Initially, M.G. said she was tired and lying down. Her
mother said, "[T]hat's not what you're doing," and asked, "Who
was in here with you." As M.G. pulled on her clothes, she told
her mother, "You know who he is, Mama. He's not a stranger."
She then walked out of the shed, toward the end of the row, and
indicated, "[H]e's back here." Mother walked to the side of the
shed and saw appellant. When mother confronted appellant, he
denied knowing anything.
both a hearsay argument and a separate sufficiency argument in
his appeal. Therefore, we will address both arguments.
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As mother and M.G. walked by the front door of appellant's
home, M.G. became hysterical, saying, "I'm going to get in
trouble," and "He's got a gun." M.G. remained hysterical after
they got home.
Mother testified M.G. told her that appellant pulled her
into the shed, and then licked her pubic area and put his finger
into her vagina. Deputy Sheriff Mike Smith testified, when he
arrived about a half-hour after mother discovered M.G., she
described basically these same incidents. When M.G. testified
at trial, she explained appellant pulled her into the shed,
pulled her pants down, and then put his finger into her vagina.
She said he did nothing else.
Mother also testified on cross-examination that M.G. had
talked to her on two other occasions about the incident in the
shed and was clear each time that appellant had licked her and
put his finger in her. She did admit M.G. also said "Matthew"
had a gun, not appellant. Mother further testified that M.G.
told her appellant had pulled his penis out of his pants while
they were in the shed.
The doctor who examined M.G. at the emergency room
testified that she had bruising on her vagina and some tearing
to her hymen. Both injuries occurred within twenty-four hours
before the examination, according to the doctor. He also
testified the injuries were consistent with a finger inserted
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into the vagina, but were not likely self-inflicted or from a
fall.
The SANE 2 nurse, who also examined M.G., testified the
injuries were no more than six hours old. She explained the
injuries could be caused by a man's finger. She also testified,
although a person possibly could injure herself in this way, it
would be painful to M.G. to cause these injuries to herself.
She explained the injuries were inconsistent with a fall.
Appellant's wife and stepson testified that M.G. visited
their home on October 15, 1999. Neither of them heard M.G. cry
out nor did they see anything unusual. Wife testified appellant
was at the shed when she left for work. The stepson was in the
shower before M.G.'s mother knocked on the door, asking about
her daughter.
Appellant's doctor testified appellant was on disability
and prescribed oxygen for eighteen hours a day. The doctor
admitted on cross-examination that appellant will feel better on
some days and could engage in more activity on those days.
Appellant denied to the police and in his testimony at
trial that he ever touched M.G.
2
"SANE" is an acronym for sexual assault nurse examiner, a
discipline that involves training in the medical signs of sexual
assault.
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ANALYSIS
Appellant argues the trial court erred by permitting mother
to testify regarding statements made by M.G, which affected both
his conviction for aggravated sexual battery and his sentencing.
Appellant further contends the evidence was insufficient to
convict him of aggravated sexual battery and object sexual
penetration. The Commonwealth argues the evidence was
admissible under the excited utterance exception to the hearsay
rule, 3 appellant waived his objection to this evidence, and the
evidence was sufficient for the convictions.
I. Hearsay
Hearsay is "testimony which consists [of] a
narration by one person of matters told him
by another." Williams v. Morris, 200 Va.
413, 417, 105 S.E.2d 829, 832 (1958). The
strongest justification for the exclusion of
hearsay evidence is that the trier of fact
has no opportunity to view the witness on
cross-examination and to observe the
demeanor of the out-of-court declarant to
determine reliability. C. Friend, [The Law
of Evidence in Virginia] § 224 [(2d ed.
1983)]. . . . [H]earsay evidence is
admissible if it falls into one of the
recognized exceptions to the hearsay rule
which are based on necessity and inherent
trustworthiness. C. Friend, supra, § 230 et
seq.
3
The Commonwealth specifically denies the trial court
admitted the evidence under the recent complaint exception to
the hearsay rule. See Code § 19.2-268.2. Therefore, we do not
discuss this exception.
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Evans-Smith v. Commonwealth, 5 Va. App. 188, 197, 361 S.E.2d
436, 441 (1987). See also Jenkins v. Commonwealth, 254 Va. 333,
338, 492 S.E.2d 131, 134 (1997).
Hearsay statements are admissible under the excited
utterance exception when the declaration "is spontaneous and
impulsive, thus guaranteeing its reliability." Goins v.
Commonwealth, 251 Va. 442, 460, 470 S.E.2d 114, 126 (1996). See
also Braxton v. Commonwealth, 26 Va. App. 176, 184, 493 S.E.2d
688, 691 (1997). "The statement must be prompted by a startling
event and be made at such time and under such circumstances as
to preclude the presumption that it was made as the result of
deliberation. In addition, the declarant must have firsthand
knowledge of the startling event." Goins, 251 Va. at 460, 470
S.E.2d at 126 (citations omitted). Admissibility of evidence as
an excited utterance rests within the discretion of the trial
judge. 4 Walker v. Commonwealth, 19 Va. App. 768, 772, 454 S.E.2d
737, 740 (1995).
4
Appellant correctly notes the Commonwealth has the burden
to establish evidence falls within an exception when introducing
the evidence at trial. However, on appeal, we presume the judge
knows and understands the law, applying the appropriate
principles correctly. Yarborough v. Commonwealth, 217 Va. 971,
978, 243 S.E.2d 286, 291 (1977) (appellate court presumes the
trial court correctly applied the law to the facts); Justis v.
Young, 202 Va. 631, 632, 119 S.E.2d 255, 256-57 (1961)
(appellate courts presume a trial court's ruling is correct);
Dunn v. Commonwealth, 20 Va. App. 217, 219-20, 456 S.E.2d 135,
136 (1995) (the judgment of a trial court is presumed correct on
appeal). Therefore, where the trial court rules evidence is
admissible, but does not elaborate, appellate courts must
examine the record for justification of the trial court's
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Appellant argues M.G.'s statements to her mother do not
fall within the excited utterance exception because (1) the
evidence does not establish the proximate time between the
startling event and the statement, (2) M.G. was not excited by
the startling event when she made the statements, and (3) M.G.
was responding to questions from her mother rather than making
spontaneous statements. We disagree.
The lapse of time between a startling event and a
statement, while a factor to consider, is not determinative of
whether to admit the statement as an excited utterance. Doe v.
Thomas, 227 Va. 466, 471, 318 S.E.2d 382, 385 (1984); Walker v.
Commonwealth, 19 Va. App. 768, 772, 454 S.E.2d 737, 740 (1995).
Failure of the evidence to indicate a specific length of time
between the event and the statement does not preclude admission
of the utterance. See, e.g., Braxton v. Commonwealth, 26 Va.
App. 176, 185, 493 S.E.2d 688, 692 (1997) (finding trial court
did not err when admitting an excited utterance, even though the
record did "not establish how much time elapsed" between the
event and the statement). Therefore, the fact that the
testimony did not delineate a specific time between the
decision. Additionally, if a defendant believes the trial court
has not justified its ruling, then he must ask the judge to
explain the rationale, especially when, as here, the defense
objection is a one-word statement. Id. (appellant has the
burden to prove the trial court erred).
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startling event and M.G.'s statement to her mother did not
prevent the trial court from admitting the evidence. 5
The record did disclose that M.G. made the statement to her
mother a very short time after the incident. M.G. testified the
assault occurred around the time appellant's wife left for work,
at approximately 4:45 p.m. M.G.'s mother began looking for her
around five o'clock. Given the description of events, M.G. was
found and returned to her home within thirty minutes of the
assault. M.G. made her statements at the time she was
discovered in the shed and soon after she returned to her home.
Based on this record, the trial court could conclude the
utterance was "the transaction speaking through the declarant,"
rather than "the declarant speaking about the transaction."
Royal v. Commonwealth, 12 Va. App. 928, 931, 407 S.E.2d 346, 348
(1991).
Appellant also argues the hearsay should not have been
admitted, as M.G. was not excited by the startling event when
she made the statements. However, the record "contains
sufficient evidence to establish" that M.G. was speaking "under
the agitation" of the assault when she made the statements to
her mother. Goins, 251 Va. at 470, 470 S.E.2d at 126.
M.G., who was eight years old at the time, started talking
to her mother after she pulled on her clothes. A reasonable
5
We do not suggest that the criminal event must be the
startling event that precipitates the utterance.
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inference is that this conversation occurred almost immediately
after the sexual assault. Instead of telling her mother the
name of the person who had been in the shed with her, M.G.
described him as "not a stranger" and pointed to where he was
hiding. The trial court could find, based on her age, the
immediacy of the statement, and the manner in which she
identified appellant, that M.G. was under the influence of the
event at the time she made her statements outside the shed.
Additionally, when M.G. and mother began to leave
appellant's yard, M.G. became hysterical and overwrought. She
was afraid someone with a gun would try to hurt her. When they
arrived at their home moments later, M.G. would not sit still.
At this point, when M.G. was in the safety of her own home, she
told mother that appellant had licked her pubic area and put his
finger into her vagina. Given all these factors, see Walker, 19
Va. App. at 772-74, 454 S.E.2d at 740, we cannot say the trial
court abused its discretion.
Appellant also argues M.G. was responding to questions from
her mother and, therefore, the trial court erred in admitting
the statement under the excited utterance exception. The
testimony directly contradicts appellant's assertion that M.G.'s
statement about the licking was in response to a question. Her
mother testified, "I did not question her." However, the
initial identification of appellant as the person who was in the
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shed with M.G. was in response to her mother's questions, "what
were you doing" and "who was in here with you."
Again, no fixed rules determine whether a statement is
admissible as an excited utterance. Royal, 12 Va. App. at 931,
407 S.E.2d at 348. This exception can apply when statements are
made in response to questions. Martin v. Commonwealth, 4
Va. App. 438, 442, 358 S.E.2d 415, 418 (1987). The key is
whether "the question or questioner suggested or influenced the
response, then the declaration may lack the necessary
reliability to be admitted." Id.
Mother did not frame her questions in such a manner that
they suggested an answer nor did M.G.'s responses directly
answer the questions. When mother asked who had been in the
shed with M.G., the question did not suggest a particular name.
In fact, M.G. refused to say a name, but instead said the person
was someone mother knew. She then pointed in appellant's
direction rather than directly answer her mother's question.
More importantly, mother did not ask questions about what
happened in the shed. She testified, "I did not question her.
I have worked these cases before."
We find the trial court did not abuse its discretion when
it admitted this evidence. We also find, even if the mother's
statements on direct examination were improperly admitted,
appellant waived any objection to this evidence during his
cross-examination of the Commonwealth's witnesses.
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"[W]here an accused unsuccessfully objects to evidence
which he considers improper and then on his own behalf
introduces evidence of the same character, he thereby waives his
objection, and we cannot reverse for the alleged error."
Saunders v. Commonwealth, 211 Va. 399, 401, 117 S.E.2d 637, 638
(1970) (citations omitted). While a defendant can cross-examine
a witness without waiving an earlier objection, once "evidence
that is similar to that to which the objection applies" is
introduced by the questioning, the original objection is waived.
Brant v. Commonwealth, 32 Va. App. 268, 278, 527 S.E.2d 476,
480-81 (2000). See also Newton v. Commonwealth, 29 Va. App.
433, 451, 512 S.E.2d 846, 854-55 (1999).
On cross-examination, mother initially answered questions
about M.G.'s statements made on the day of the incident, to
which appellant had previously objected. These questions were
designed to clarify and impeach mother's testimony regarding the
statements and did not waive the previous objections. However,
defense counsel then asked, "Now, you had the occasion over a
number of days to hear further descriptions of what had occurred
from [M.G.]; is that correct?" When mother said they had,
counsel asked, "Were [sic] there more than one version of the
facts that were given to you by your daughter?" Mother
answered, without objection or limitation, "She was very clear
on the three things that she originally told me that he had put
a cigarette in her mouth; that he had put his finger in her
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private parts and that he had licked her private parts." Since
this cross-examination was beyond the scope of mother's direct
testimony, her answers were introduced on appellant's "own
behalf."
Additionally, Deputy Sheriff Smith testified on direct
examination, without objection, 6 "[M.G.] was very much upset and
scared that Mr. Guy was going to come and get her. That's what
she told me. [M.G.] then told me that Mr. Guy had basically
licked her vagina and stuck his finger in her hole."
Appellant also argues M.G.'s statement was prejudicial as
to sentencing. However, as we find the evidence was properly
admitted, appellant cannot complain of prejudice from this
testimony.
II. Sufficiency
Appellant argues the trial court should have granted his
motion to set aside the verdict as "a serious credibility issue"
existed about the victim's testimony. We disagree.
Appellant's motion to the trial court argued initially that
double jeopardy prevented conviction on both charges. Counsel
then admitted the evidence was sufficient "for an incident to
have occurred and the jury having found guilt on the particular
6
At oral argument, appellant contended he made a continuing
objection at trial that included this testimony. The record
does not support this contention.
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penetration offense it certainly seems that the penetration was
an offense that was committed and there was no further evidence
supported by testimony of any aggravated sexual battery act."
Clearly, appellant conceded sufficiency of the evidence for the
penetration offense, thereby waiving any sufficiency argument
related to this conviction. See Redman v. Commonwealth, 25
Va. App. 215, 220, 487 S.E.2d 269, 272 (1997). See also Rule
5A:18.
Appellant claims several inconsistencies between the
witnesses' testimony made M.G.'s testimony incredible. However,
credibility issues are in the province of the jury. Wilson v.
Commonwealth, 31 Va. App. 495, 508, 525 S.E.2d 1, 7 (2000). The
trier of fact resolves any inconsistencies in the testimony.
See Barker v. Commonwealth, 230 Va. 370, 373-74, 337 S.E.2d 729,
732 (1985). As nothing in this record suggests the witnesses
were inherently incredible, we will not set aside the aggravated
sexual battery conviction.
For the reasons stated above, we affirm appellant's
convictions.
Affirmed.
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