Clinebell v. Com.

• Decision Date: 22 April 1988
• Docket Number: No. 870168,870168
• Citation: 368 S.E.2d 263,235 Va. 319
• Parties: Michael Wayne CLINEBELL v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 263

368 S.E.2d 263

235 Va. 319

Michael Wayne CLINEBELL v. COMMONWEALTH of Virginia.

Record No. 870168.

Supreme Court of Virginia.

April 22, 1988.

Jonathan S. Kurtin (Harvey S. Lutins, on briefs), for appellant.

Marla Lynn Graff, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., Birdie H. Jamison, Asst. Atty. Gen., on brief), for appellee.

Present: All the Justices.

STEPHENSON, Justice.

In this appeal, we decide whether (1) the indictments sufficiently informed the defendant of the dates of the crimes charged against him, and (2) the trial court erred in excluding certain evidence proffered by the defendant to impeach the complaining witness in five criminal sexual assault cases.

Tried by a jury, Michael Wayne Clinebell was convicted of two counts of rape of his daughter, a child under the age of 13, in violation of Code § 18.2-61, of two counts of sodomy of the child, in violation of Code § 18.2-67.1, and of one count of sexual penetration of the child with an inanimate object, in violation of Code § 18.2-67.2. In accordance with the jury's verdicts, the trial court (the Circuit Court of the City of Roanoke) sentenced Clinebell to 10 years' imprisonment for each of the rape convictions, to 15 years in prison for each of the sodomy convictions, and to 10 years' imprisonment for the object penetration conviction. The trial court's judgments in each case were affirmed by the Court of Appeals of Virginia. Clinebell v. Commonwealth, 3 Va.App. 362, 349 S.E.2d 676 (1986).

Clinebell first contends that the indictments were fatally defective because they failed to specify the exact dates of the alleged offenses. We conclude that the indictments are legally sufficient, and on this issue, we affirm the holding and rationale of the Court of Appeals. See Clinebell, 3 Va.App. at 364-67, 349 S.E.2d at 677-79.

We next consider the evidentiary issues. Prior to the trial of this case, the Commonwealth, relying upon Code § 18.2-67.7 (sometimes referred to as the "rape shield" law), ¹ filed a motion in limine to have the trial court prohibit the "offer or reference to any past sexual contact of the [daughter] with any person other than [Clinebell]." Specifically, the Commonwealth sought to prohibit any reference at trial to the following statements allegedly made by the daughter: (1) that in 1983, she told a classmate that she was pregnant; (2) that in 1984, she told the classmate that both her father and her uncle had raped her; (3) that in 1984, she told a cousin that a boy named Wesley, who lived in Stewartsville, had gotten her pregnant; and (4) that she had claimed that her paternal grandfather had sexually abused her. ²

Clinebell resisted the granting of the motion in limine. He argued that Code § 18.2-67.7 was not applicable because the evidence was not being offered to prove that the daughter engaged in prior sexual conduct, but only to prove that she falsely claimed to have engaged in such conduct. The purpose of introducing the statements was to attack the daughter's credibility. According to Clinebell, the statements would be evidence from which the jury could infer that the daughter was fantasizing about sexual matters, including the claims against her father. If the jury believed this to be the case, the daughter would be impeached.

The trial court rejected Clinebell's argument and granted the motion in limine. The court opined that the statements were excluded by Code § 18.2-67.7. We do not agree.

Code § 18.2-67.7 was enacted to exclude evidence in criminal assault cases of the "general reputation ... of the complaining witness's unchaste character or prior sexual conduct." See Winfield v. Commonwealth, 225 Va. 211, 217-19, 301 S.E.2d 15, 19-20 (1983) (discussing ills General Assembly sought to cure by enacting Code § 18.2-67.7). "Prior 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).

In the present case, Clinebell does not seek to prove that his daughter has engaged in "prior sexual conduct" or that she has an unchaste character. He seeks to prove for impeachment purposes that his daughter makes false statements concerning sexual behavior. We conclude that such statements are not "conduct" within the meaning of Code § 18.2-67.7, and therefore, the section is inapplicable. Accord Snider v. State, 274 Ind. 401, 405, 412 N.E.2d 230, 233 (1980) (complainant's bet that she could "take her father to bed" arguably not excluded under rape shield statute because not "past sexual conduct"); Cox v. State, 51 Md.App. 271, 281, 443 A.2d 607, 613 (1982) (false, recanted testimony not related to chastity or sexual conduct), aff'd, 298 Md. 173, 468 A.2d 319 (1983); State v. Zaehringer, 280 N.W.2d 416, 419-20 (Iowa 1979) (posing nude not sexual conduct excludable under rape shield law); Commonwealth v. Bohannon, 376 Mass. 90, 94-95, 378 N.E.2d 987, 991-92 (1978) (proposed cross-examination questions concerning whether complainant previously had made false allegations of rape did not relate to her prior sexual activity or reputation for chastity; therefore, rape shield statute not applicable); People v. Hackett, 421 Mich. 338, 348, 365 N.W.2d 120, 128 (1985) (complainant's statement of sexual dissatisfaction at home not within rape shield law); People v. Arenda, 416 Mich. 1, 13, 330 N.W.2d 814, 818 (1982) (past sexual conduct does not include, inter alia, conversing with others); State v. Durham, 74 N.C.App. 159, 167, 327 S.E.2d 920, 926 (1985) (child's accusation of abuse by father, told to mother, evidence of conversation or language and, therefore, not excluded by rape shield statute); State v. Baron, 58 N.C.App. 150, 153-54, 292 S.E.2d 741, 743-44 (1982) (complainant's prior statements accusing others of improper sexual advances not sexual activity); State v. Smith, 45 N.C.App. 501, 502-03, 263 S.E.2d 371, 372 (discussions about complainant's sexual problems not sexual behavior), rev. denied, 301 N.C. 104, 273 S.E.2d 460 (1980); State v. LeClair, 83 Or.App. 121, 126-27, 730 P.2d 609, 613 (1986) (evidence of child's previous false accusations of sexual abuse not evidence of past sexual behavior under rape shield law), rev. denied, 303 Or. 74, 734 P.2d 354 (1987); State v. Vonesh, 135 Wis. 2d 477, 490, 401 N.W.2d 170, 176-77 (Wis.App.1986) (written expressions of sexual desires or activities not sexual conduct or behavior).

The Court of Appeals did not address the applicability of Code § 18.2-67.7. The court held, however, that the trial court did not err in excluding this evidence, opining that "[t]he proper way to have impeached the [daughter] ... would have been to show that she had a bad reputation for truth and veracity." Clinebell, 3 Va.App. at 370, 349 S.E.2d at 681.

We agree with the Court of Appeals that one method of impeaching a witness is by attacking that witness' character. Ordinarily, character is attacked by presenting testimony that the witness' general reputation for truth and veracity is bad. Bradley v. Commonwealth, 196 Va. 1126, 1133-34, 86 S.E.2d 828, 833 (1955). Generally, as the Court of Appeals recognized, a witness' character may not be impeached by showing specific acts of untruthfulness or bad conduct.

In sex offense cases, however, the weight of authority recognizes more liberal rules concerning impeachment of complaining witnesses. Accordingly, a majority of jurisdictions that have considered the issue hold that evidence of prior false accusations is admissible to impeach the complaining witness' credibility or as substantive evidence tending to prove that the instant offense did not occur. See Covington v. Alaska, 703 P.2d 436, 442 (Alaska App.1985) (credibility); State v. Hutchinson, 141 Ariz. 583, 587, 688 P.2d 209, 211-13 (App.1984) (substantive evidence); West v. Arkansas, 290 Ark. 329, 334, 719 S.W.2d 684, 687 (1986) (substantive evidence); People v. Adams, 243 Cal.Rptr. 580, 583-84, 198 Cal.App.3d 10, 18-19 (1988); People v. Hurlburt, 166 Cal.App.2d 334, 342-43, 333 P.2d 82, 87-88 (1958) (substantive evidence); People v. Simbolo, 188 Colo. 49, 52, 532 P.2d 962, 963-64 (1975) (credibility); State v. Schwartzmiller, 107 Idaho 89, 92, 685 P.2d 830, 833 (1984) (credibility); People v. Gorney, 107 Ill. 2d 53, 58-61, 89 Ill.Dec. 830, 832-33, 481 N.E.2d 673, 675-76 (1985) (credibility); Little v. State, 413 N.E.2d 639, 643 (Ind.App.1980) (credibility); State v. Cox, 298 Md. 173, 183, 468 A.2d 319, 324 (1983), aff'g, 51 Md.App. 271, 443 A.2d 607 (1982) (credibility); Bohannon, 376 Mass. at 94, 378 N.E.2d at 991 (credibility); People v. Evans, 72 Mich. 367, 380, 40 N.W. 473, 478-79 (1888) (substantive evidence); People v. Garvie, 148 Mich.App. 444, 448, 384 N.W.2d 796, 798 (1986) (credibility); State v. Caswell, 320 N.W.2d 417, 419 (Minn.1982) (credibility); State v Anderson, 686 P.2d 193, 198-201 (Mont.1984) (probative of state of mind); State v. Johnson, 102 N.M. 110, 117-18, 692 P.2d 35, 43 (App.1984) (credibility); Baron, 58 N.C.App. at 153-54, 292 S.E.2d at 743-44; State v. Kringstad, 353 N.W.2d 302, 311 (N.D.1984) (credibility); Woods v. State, 657 P.2d 180, 181-82 (Okla.1983) (substantive evidence); State v. Nab, 245 Or. 454, 458-60, 421 P.2d 388, 390-91 (1966); State v. McCarthy, 446 A.2d 1034, 1034-35 (R.I.1982) (credibility); Thomas v. State, 669 S.W.2d 420, 423 (Tex.App. 1 Dist.1984) (credibility); State v. Demos, 94 Wash.2d 733, 736, 619 P.2d 968, 970 (1980) (credibility). See generally 3A J. Wigmore, Evidence in Trials at Common Law §§ 924a, 934a, 963, 979 (Chadbourn rev. 1970); Galvin, Shielding Rape Victims in the State and Federal Courts: A Proposal for the Second Decade, 70 Minn.L.Rev. 763, 858-63 (1986).

At least in the context of prosecutions of sexual offenses, evidentiary constraints must sometimes yield to a defendant's right of cross-examination. E.g., LeClai...