Christopher v. Commonwealth, Record No. 1248-05-3 (Va. App. 12/28/2006)

Decision Date28 December 2006
Docket NumberRecord No. 1248-05-3.
CourtVirginia Court of Appeals

Appeal from the Circuit Court of Campbell County, J. Samuel Johnston, Jr., Judge.

B. Leigh Drewry, Jr. (Cunningham & Drewry, on brief), for appellant.

Virginia B. Theisen, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: Judges Humphreys, McClanahan and Petty.



A jury convicted James Richard Christopher of aggravated sexual battery of a child less than thirteen years of age, in violation of Code § 18.2-67.3, two counts of forcible sodomy, in violation of Code § 18.2-67.1, and one count of indecent liberties with a child, in violation of Code § 18.2-370. Christopher appeals and argues that the trial court erred when it (1) denied his motion for a bill of particulars; (2) relied on "unspecific charging documents"; (3) reviewed the victim's medical and counseling records acquired by subpoena duces tecum in camera; (4) relied on the victim's allegedly "inherently incredible" testimony; and (5) denied his motion to admit the original indictments into evidence. We disagree and affirm Christopher's convictions.

"On appeal, we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom." Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). In 1998, James Christopher moved in with his girlfriend. Shortly thereafter, he began sexually abusing his girlfriend's nine-year-old daughter. The victim's trial testimony concerning the specific sexual acts she was forced to perform was detailed, but she could not recall the specific dates on which the incidents took place. The victim explained that she did not report the abuse until February of 2004 because Christopher told her not to tell anyone and that her mother would not believe her and would be angry with her. Moreover, Christopher took sexually explicit photographs of the victim, which he used to ensure her compliance.

Christopher submits five questions for our consideration in this appeal. We discuss them below.


Christopher was originally indicted for one count of sexual battery, ten counts of forcible sodomy, and one count of indecent liberties with a child. Each indictment alleged the date of the offense as "on or about June 1, 1998 to June 4, 2002." Christopher moved for a bill of particulars, seeking, inter alia, "[t]he precise day, date, and time of each alleged offense . . . ." In response to Christopher's motion, the Commonwealth stated that it could only provide dates "in a ballpark" due to the victim's young age at the time the crimes occurred. The trial court therefore determined that ordering "the Commonwealth to submit a Bill of Particulars would be meaningless."

At trial, the Commonwealth amended the indictments without objection from Christopher, narrowing the dates on the indecent liberties indictment to September 1, 1998 to June 30, 1999; the dates on the aggravated sexual battery indictment to September 1, 1998 to June 4, 2002; and the dates on the forcible sodomy indictments to September 1, 1998 through June 4, 2002. The trial court eventually dismissed eight of the ten forcible sodomy charges, explaining that while "there was not a sufficient quantum of evidence to allow a jury to consider [the eight charges that the trial court dismissed]," the Commonwealth presented "a prima facie case to start with and a case that ought to be submitted to the jury . . ." as to two of the counts of forcible sodomy.

Christopher alleges that the date range covered by the indictments prevented him from knowing the "cause and nature of the allegation" against him, arguing that our Supreme Court's decision in Clinebell v. Commonwealth, 235 Va. 319, 368 S.E.2d 263 (1988), misconstrued Code § 19.2-226(6).1 Similarly, Christopher maintains that the lack of a bill of particulars delineating the precise day, date, and time of each offense in this case undercut his ability to defend himself against the Commonwealth's charges, since he was "incapable of narrowing and focusing the defense case," preventing him from receiving a fair trial.2 Because these issues are interrelated, we discuss them together.

First, Christopher invites us to overrule our Supreme Court's decision in Clinebell. In Clinebell v. Commonwealth, 3 Va. App. 362, 349 S.E.2d 676 (1986), aff'd in part, rev'd in part, 235 Va. 319, 368 S.E.2d 263 (1988), we held that, when "there is no dispute that the crime involved a minor child . . . [t]he allegation of time . . . is not of such constitutional import because time was not of the essence of the offense charged." Id. at 367, 349 S.E.2d at 678 (citing Waitt v. Commonwealth, 207 Va. 230, 235, 148 S.E.2d 805, 808 (1966); Arrington v. Commonwealth, 87 Va. 96, 99, 12 S.E. 224, 225 (1890)).3 Our rationale in Clinebell specifically noted the inherent difficulty of proving the specific date of a sexual offense committed by an adult against a child. Id. Our Supreme Court affirmed our holding and rationale regarding the sufficiency of the indictments in Clinebell, 235 Va. at 320, 368 S.E.2d at 263.

Axiomatically, "we are without authority to overrule the Supreme Court of Virginia." Roane v. Roane, 12 Va. App. 989, 991, 407 S.E.2d 698, 699 (1991); see also Bostic v. Commonwealth, 31 Va. App. 632, 636, 525 S.E.2d 67, 68 (2000) ("[W]e are constrained by our previous decisions and those of the Supreme Court."). Thus, based on Clinebell, we hold that the indictments were sufficient to apprise Christopher of the nature of the crimes with which he was charged. See Yeager v. Commonwealth, 16 Va. App. 761, 765, 433 S.E.2d 248, 250 (1993) ("Fundamental fairness is provided if the defendant has notice of the nature of the character of the offense charged.").

We also hold that the trial court did not abuse its discretion when it denied Christopher's motion for a bill of particulars. Christopher was not entitled to a bill of particulars as a matter of right. See Quesinberry v. Commonwealth, 241 Va. 364, 372, 402 S.E.2d 218, 223 (1991); see also Code § 19.2-230 ("A court of record may direct the filing of a bill of particulars at any time before trial." (emphasis added)). Rather, "[w]hether the Commonwealth is required to file a bill of particulars rests within the discretion of the trial court." Quesinberry, 241 Va. at 372, 402 S.E.2d at 223.

An accused is entitled to a bill of particulars "only when the indictment is insufficient to notify the accused of the nature and character of the charges so he can make his defense." Yeager, 16 Va. App. at 764-65, 433 S.E.2d at 250 (citing Strickler v. Commonwealth, 241 Va. 462, 490, 404 S.E.2d 227, 233 (1991)). As discussed supra, the indictments were sufficient under the decisions of our Supreme Court. Moreover, the trial court considered the parties' arguments regarding the motion for a bill of particulars and determined that the Commonwealth had provided all of the information it had to Christopher. The trial court did not abuse its discretion by relying on the indictments and denying Christopher's motion for a bill of particulars.


Christopher argues the trial court erred when it granted the Commonwealth's motion to review the victim's medical and counseling records in camera, rather than allowing him to review them. We hold Christopher is procedurally barred from making this argument since he failed to make a timely objection to the in camera review.4

Prior to trial, Christopher obtained two subpoenas duces tecum seeking the victim's medical and counseling records. The Commonwealth moved to quash both subpoenas, or, in the alternative, sought an in camera review of the records to determine their "evidentiary value." At a pretrial hearing, the trial court determined that the "proper way" to address the counseling records was to conduct an in camera review of them and provide Christopher with any "exculpatory evidence." In response to the trial court's determination, Christopher responded, "Judge, I would gladly accept an in camera review of them . . . ." The trial court subsequently entered an order denying the motion to quash as to the counseling records, memorializing its ruling from the bench. Later, the trial court issued an identical order regarding the victim's medical records. Christopher endorsed both orders as "Seen."

According to Rule 5A:18, "[n]o ruling of the trial court . . . will be considered as a basis for reversal unless the objection was stated together with the grounds therefor at the time of the ruling." This rule prevents unfairness to the opposing party "who may have been able to offer an alternative to the objectionable ruling, but did not do so, believing there was no problem." Lee v. Lee, 12 Va. App. 512, 514, 404 S.E.2d 736, 737 (1991). Further, it is well settled that the endorsement of an order as "'Seen,' without more, is not sufficient to preserve that party's right to appeal." Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991) (citing Langley v. Meredith, 237 Va. 55, 61-62, 376 S.E.2d 519, 522 (1989)).

The record is devoid of any objection by Christopher to the trial court's in camera review of these records. On the contrary, Christopher "gladly accept[ed]" the trial court's in camera review of the counseling records during a pretrial hearing, and Christopher endorsed the trial court's orders directing the in camera review of both the medical and counseling records as "Seen." Christopher did not communicate any objection to the in camera review of the medical records until immediately prior to sentencing, after the jury had returned its verdict. See Rule 3A:9(b)(2) ("[A]ny defense or objection that is capable of...

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