Clifford v. Commonwealth

• Decision Date: 08 August 2006
• Docket Number: Record No. 1310-05-1.
• Citation: 48 Va. App. 499,633 S.E.2d 178
• Court: Virginia Court of Appeals
• Parties: Michael T. CLIFFORD v. COMMONWEALTH of Virginia.

Page 178

633 S.E.2d 178

48 Va. App. 499

Michael T. CLIFFORD v. COMMONWEALTH of Virginia.

Record No. 1310-05-1.

Court of Appeals of Virginia, Chesapeake.

August 8, 2006.

COPYRIGHT MATERIAL OMITTED

Esther J. Windmueller for appellant.

Michael T. Judge, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: FELTON, C.J., and ELDER and BEALES, JJ.

ELDER, Judge.

Michael T. Clifford (appellant) appeals from his jury trial convictions for four counts of aggravated sexual battery against four sisters. On appeal, he contends the trial court erroneously ruled he could not question one of the complainants about prior accusations of sexual abuse she made against a third party. He also contends the evidence was insufficient to support his convictions because the evidence as to the time of the alleged offenses was deficient, the testimony of the Commonwealth's witnesses was inherently incredible, and the evidence failed to prove he acted with the requisite intent. We hold the court's refusal to allow appellant to cross-examine one of the complainants about prior sexual abuse was error but was harmless because the court permitted appellant to cross-examine the complainant's mother on the subject. Further, we hold that appellant failed to preserve for appeal his argument that the evidence was insufficient to prove he acted with the requisite intent. Finally, we hold that the testimony of the Commonwealth's witnesses was not inherently incredible and that, because time was not of the essence in regard to the charged offenses, the Commonwealth's proof regarding when the abuse occurred was sufficient to support appellant's convictions. Thus, we affirm the convictions.

I. BACKGROUND

In January 2005, appellant was indicted for sexually abusing four sisters — A., H., J., and C. — "[o]n or about[ ] April 1, 2004[,] through May 31, 2004," when all of the sisters were under thirteen years of age.¹ Appellant and his wife were friends of the girls' parents, Mr. and Mrs. H., whom they had met through their church, and appellant and his wife served as surrogate grandparents to Mr. and Mrs. H.'s ten minor children, including the four sisters he was indicted for sexually abusing. At the time of the alleged abuse, A. was 11 and 12 years old, H. was 10, J. was 9, and C. was 6 and 7. In a jury trial, appellant was convicted of aggravated sexual battery against A., H., J., and C. After sentencing, he noted this appeal.

II. ANALYSIS

A. RAPE SHIELD STATUTE AND SCOPE OF CROSS-EXAMINATION

At trial, appellant sought leave to cross-examine Mrs. H. and J. about the alleged 1998 sexual abuse of J. for which a third party, D.W., was tried in February 2004, resulting in a hung jury, and again in September 2004, resulting in an acquittal. Based on Mrs. H.'s testimony as to why she did not report appellant's alleged abuse or stop appellant from coming over any earlier than she did, appellant argued the pending charges against D.W., coupled with the H. family's related involvement with the Commonwealth's Attorney's Office and Department of Social Services during that period of time, were relevant to impeach Mrs. H.'s and J.'s credibility.² The Commonwealth agreed that the evidence was relevant to credibility but argued that the subject matter of J.'s alleged prior sexual abuse by D.W. fell squarely within the protections of Code § 18.2-67.7, Virginia's rape shield statute, and did not fall under any of the statute's exceptions. The trial court ruled that appellant could cross-examine the mother about the prior allegations but could not cross-examine the daughter "because it is much more closely related to the issue of prior sexual conduct of the child."

The rape shield statute provides in relevant part as follows:

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 [falls within one of three categories specified in the statute, none of which are alleged to apply in appellant's case].

Code § 18.2-67.7(A). "[P]rior sexual conduct" is defined as "any sexual conduct on the part of the complaining witness which took place before the conclusion of the trial, excluding the conduct involved in the offense alleged under this article." Code § 18.2-67.10(5).

By enacting the rape shield statute, "`[t]he General Assembly intended to preclude evidence of general reputation or opinion of the unchaste character of the complaining witness in all circumstances.'" Cairns v. Commonwealth, 40 Va.App. 271, 283, 579 S.E.2d 340, 345 (2003) (quoting Winfield v. Commonwealth, 225 Va. 211, 220, 301 S.E.2d 15, 20 (1983)). It also intended to preclude admission of evidence of specific prior sexual conduct except in those instances enumerated in the statute. Id.; see id. (quoting Neeley v. Commonwealth, 17 Va. App. 349, 358, 437 S.E.2d 721, 726 (1993), for proposition that "`the trial judge must admit other relevant, material evidence not within the enumerated exceptions, when the exclusion of such evidence would deny the defendant the constitutional right to a fair opportunity to present evidence probative of his defense of the charges against him'"). However, "where relevant evidence is not of prior sexual `conduct,' Code § 18.2-67.7 does not apply." Brown v. Commonwealth, 29 Va. App. 199, 215, 510 S.E.2d 751, 759 (1999).

Virginia's appellate courts have on several occasions considered what qualifies as "prior sexual conduct" within the meaning of Code § 18.2-67.7. In Clinebell v. Commonwealth, 235 Va. 319, 320-21, 368 S.E.2d 263, 263 (1988), the defendant was convicted, inter alia, of raping and sodomizing his daughter and, on appeal, he argued the trial court improperly applied the rape shield statute to exclude evidence of certain prior statements made by his daughter. Those statements included references to a classmate that she was pregnant, that her father and uncle had raped her, that her grandfather had molested her, and that another boy had impregnated her. Id. at 321-22, 368 S.E.2d at 264. The defendant argued that by introducing his daughter's statements, he was not attempting to prove that she "has engaged in `prior sexual conduct' or that she has an unchaste character." Id. at 322, 368 S.E.2d at 264. The Supreme Court characterized the defendant's efforts as "seek[ing] to prove for impeachment purposes that his daughter makes false statements concerning sexual behavior," and it "conclude[d] that such statements are not [sexual] `conduct' within the meaning of Code § 18.2-67.7." Id.

We considered the meaning of the term "prior sexual conduct" as used in the rape shield statute in Brown, 29 Va.App. at 212-16, 510 S.E.2d at 757-59. There, the trial court prevented the defendant from cross-examining the complaining witness about testimony she had given in a prior rape prosecution of a different defendant. Id. at 212, 510 S.E.2d at 757. We noted

[The testimony of] Jane Doe[, the complaining witness] in this case[,] bore many striking similarities to her earlier testimony in Glymph [, the prior prosecution in which she had testified]. In both cases, Doe claimed that she did not know her attacker prior to the day of each incident. In both cases, Doe drove each man around in her own automobile and admittedly spent time talking with each. She also testified that she voluntarily consumed alcoholic beverages and socialized with each man prior to the alleged attacks. In each case, Doe stated that she requested and was permitted to go to the bathroom after each man had started to molest her. Such substantial similarities may suggest fabrication.

Id. at 215-16, 510 S.E.2d at 759. We reversed the trial court's exclusion of this evidence, holding that Brown "did not seek to introduce evidence of any sexual acts in which [the complaining witness] was involved." Id. at 216, 510 S.E.2d at 759. We explained further that

Brown's counsel sought to question Doe about prior testimony, not her prior conduct. Furthermore, the testimony sought was not about sexual conduct. Brown's counsel asked Doe questions relating to what allegedly occurred between Brown and Doe prior to any possible sexual conduct. After Doe responded to these questions, Brown's counsel attempted to ask Doe if what she described constituted "a striking[ly] similar story to the story you told in a rape case in 1989 — ." The Commonwealth objected to this question, citing the "rape shield" law. The court sustained the objection. The similarities between Doe's prior testimony and her testimony in this case could have affected her credibility and evidenced possible fabrication of her testimony in this case.

Id. (emphasis added). We concluded that "[e]vidence of prior testimony in an unrelated rape prosecution, when offered to show its substantial similarity for the purpose of testing the credibility of the witness," is not "prior sexual conduct" under Code § 18.2-67.7. Id.

In Brown, we also cited the decision in State v. Lampley, 859 S.W.2d 909 (Mo.Ct. App.1993), in which the reviewing court reversed the trial court's exclusion, under a similar rape shield statute, of evidence showing the complaining witness' prior complaint of abuse against a third party. Brown, 29 Va.App. at 214-15, 510 S.E.2d at 758-59 (citing Lampley, 859 S.W.2d at 910-12).

In Lampley, the defendant argued that the stepdaughter's previous complaint of sexual abuse was relevant to show "... how she benefited [sic] from the prior complaint." [859 S.W.2d] at 910. The evidence showed that the prior abuse complaint resulted in removal of the subject of the complaint from the stepdaughter's house. See id. at 911. The defendant argued that the stepdaughter did not like him and "accusing him of sexual...