Haas v. Commonwealth

• Decision Date: 29 October 2019
• Docket Number: Record No. 0621-18-2
• Citation: 833 S.E.2d 886,71 Va.App. 1
• Parties: Jeffrey Scott HAAS v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

71 Va.App. 1

833 S.E.2d 886

Jeffrey Scott HAAS

v.COMMONWEALTH of Virginia

Record No. 0621-18-2

Court of Appeals of Virginia, Richmond.

OCTOBER 29, 2019

Craig S. Cooley, Richmond, for appellant.

Eugene Murphy, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Chief Judge Decker, Judges Petty and Huff

OPINION BY CHIEF JUDGE MARLA GRAFF DECKER

Jeffrey Scott Haas appeals his convictions for rape and indecent liberties with a minor in violation of Code §§ 18.2-61 and 18.2-370.1. On appeal, he challenges two of the trial court’s evidentiary rulings. First, he contends that the court erred by excluding evidence through which he sought to impeach the credibility of the complaining witness. Second, he argues that the court erred by admitting evidence of his refusal to provide a DNA sample pursuant to a search warrant. We hold that the court’s rulings on these evidentiary matters were not error on the record before us. Consequently, we affirm the appellant’s convictions.

I. BACKGROUND¹

The offenses that are the subject of this appeal involved S.D., a girl who was fifteen and sixteen years old at the time of the crimes. The appellant was an acquaintance of S.D.’s mother. The mother socialized with the appellant and trusted him to "watch" her children while she was working, attending school, or going out for the evening. S.D. reported the offenses to her mother, who in turn notified the police.

At the appellant’s jury trial, the Commonwealth presented testimony from numerous witnesses including S.D. and her mother. It also presented DNA evidence linking the appellant to semen found on the sheets of S.D.’s mother’s bed, where S.D. said one of the crimes took place. The appellant testified and denied S.D.’s allegations, claiming instead that he had two sexual encounters with S.D.’s mother rather than S.D. The jury disbelieved the appellant’s denials with regard to the rape and indecent liberties and convicted him of those offenses. He was sentenced to eighteen years in prison for the rape and five years for the indecent liberties.

II. ANALYSIS

The appellant challenges the trial court’s rulings on two evidentiary issues. First, he argues that the court erred by excluding evidence of statements that S.D. allegedly made to her aunt, which he contends were relevant to the jury’s assessment of S.D.’s credibility. Second, the appellant suggests that the court erred by admitting evidence that he refused to submit to the seizure of his DNA pursuant to a search warrant because the court told him that his compliance was not required.

A. Standard of Review

"Appellate courts review evidentiary rulings under an abuse of discretion standard." Campos v. Commonwealth, 67 Va. App. 690, 702, 800 S.E.2d 174 (2017) (quoting Boone v. Commonwealth, 63 Va. App. 383, 388, 758 S.E.2d 72 (2014) ). This "deferential standard" means that "a ‘trial judge’s ruling will not be reversed simply because an appellate court disagrees.’ " Id. (quoting Thomas v. Commonwealth, 44 Va. App. 741, 753, 607 S.E.2d 738, adopted upon reh’g en banc, 45 Va. App. 811, 613 S.E.2d 870 (2005) ). Only in those cases in which "reasonable jurists could not differ" does the record support the conclusion that an abuse of discretion has occurred. Thomas, 44 Va. App. at 753, 607 S.E.2d 738.

When a party seeks to admit evidence, if "inquiry is made by the trial judge concerning the purpose of evidence" or the opposing party makes "a specific objection," "the proponent of the evidence has the burden of establishing its admissibility." Neal v. Commonwealth, 15 Va. App. 416, 420, 425 S.E.2d 521 (1992), cited with approval in Creamer v. Commonwealth, 64 Va. App. 185, 194-95, 767 S.E.2d 226 (2015). "The measure of the burden of proof with respect to factual questions underlying ... admissibility ... is proof by a preponderance of the evidence." Bloom v. Commonwealth, 262 Va. 814, 821, 554 S.E.2d 84 (2001) (quoting Witt v. Commonwealth, 215 Va. 670, 674, 212 S.E.2d 293 (1975) ). The "trial court determines these facts" as part of its decision regarding whether to admit or exclude proffered evidence. Id. Such subsidiary findings are binding on appeal "unless ‘plainly wrong’ or without evidence to support them." Campos, 67 Va. App. at 702, 800 S.E.2d 174 (quoting McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259 (1997) (en banc )). However, to the extent that the admissibility determination involves a question of law, the appellate court reviews that issue de novo . Beckham v. Commonwealth, 67 Va. App. 654, 658, 799 S.E.2d 689 (2017) ; see John Crane, Inc. v. Jones, 274 Va. 581, 586-87, 650 S.E.2d 851 (2007). Finally, an appellant bears the burden of providing the appellate court with authority and argument in support of his request for reversal. See Bartley v. Commonwealth, 67 Va. App. 740, 744-45, 800 S.E.2d 199 (2017).

It is under these well-established principles that we review the appellant’s assignments of error.

B. Exclusion of the Complaining Witness’ Alleged Prior Statements About Lying

The appellant argues that the trial court erred by excluding what he describes as "direct evidence" of the complainant’s credibility. That evidence is a group of alleged statements S.D. made to her aunt including that S.D. "had lied to the police before and would lie again about being sexually assaulted," statements that referenced two men other than the appellant.

1. Relevant Factual Framework

At trial, the appellant sought to offer testimony from S.D.’s maternal aunt in an effort to impeach S.D. The Commonwealth objected to the admission of the aunt’s testimony. In light of the objection, the judge heard her testimony outside the presence of the jury.

The aunt testified that during 2015, S.D.’s mother and two daughters, including S.D., resided with her. In July of that year, the aunt told the mother that she needed to "g[e]t her own place" and gave the mother several months to do so. According to the aunt, S.D.’s mother "got very upset and started screaming" at her. The aunt said that S.D. then informed her, "If you don’t let my mom do what she wants to do, then I’ll just go and say that Scott, ... [the aunt’s] boyfriend at the time, put his hands on me [or touched me]." The aunt said that she asked S.D. why she would "tell a lie like that to the police" because Scott had "never been with them by himself." The aunt further testified that S.D. responded, "Well, I’ve done it before. I’ll do it again." S.D. also said "that her mom could take her to the magistrate and that would be the end of it." S.D.’s aunt then asked about a former boyfriend of S.D.’s mother, about whom the aunt said S.D. had also made a prior accusation, saying, "So you’re telling me that Chad never touched you, that you lied about that?" The aunt testified that S.D. replied, "Well, that’s none of your business, but if I did lie[,] I’m getting away with it."

The judge ruled that the statements were inadmissible because they did not qualify as a prior false accusation of sexual misconduct.² The appellant objected to the exclusion. He argued that analyzing admissibility under the prior false statement rubric was error and repeatedly disclaimed any effort to have the statements admitted under that theory. He insisted that S.D.’s alleged assertions were admissible as "affirmative evidence" of her willingness to lie and the fact that they were made in reference to "an alleged sexual abuse" was merely incidental. He contended that he was entitled to have the aunt’s "credibility ... judged by the trier of fact." The appellant argued that in the context of the aunt’s question—"[W]hy [would you] lie like that to the police[?]"—the "response" that "I did it before and I will do it again" must "mean[ ] ... lying." He further asserted that the judge, by refusing to admit S.D.’s statements, was finding that the statements "couldn’t possibly mean [a] lie," thereby depriving the jury of "the opportunity to make their own decisions" about the evidence. The judge again ruled that the proffered testimony was inadmissible.³

2. Merits Analysis of Exclusion of Proffered Impeachment Testimony

The appellant argues that the trial court erred in refusing to admit evidence that S.D. allegedly told her aunt that she had previously lied to police about being sexually assaulted by a third party and would lie again on the subject of sexual assault. Although the appellant does not rely on any specific rule of evidence to support his general argument regarding impeachment, we review his challenge in the context of the rules.

a. Overview of Permissible Impeachment

The applicable legal principles concerning impeachment are largely outlined in Virginia’s Rules of Evidence. See generally Va. R. Evid. 2:102 ("These Rules state the law of evidence in Virginia. ... As to matters not covered by these Rules, the existing law remains in effect."). The language of Rule of Evidence 2:607(a) is broadly worded, stating that "[i]n [g]eneral," "the credibility" of an opposing party’s "witness may be impeached ... with any proof that is relevant to the witness’s credibility." It lists a variety of specific ways that "[i]mpeachment may be undertaken." Va. R. Evid. 2:607(a). Those methods include introducing evidence of the witness’ "bad general reputation for the traits of truth and veracity" and any "bias[ ] for or prejudice[ ] against a party." Va. Rs. Evid. 2:607(a)(i), (v), 2:610. In addition, the rule provides that a witness may be impeached by evidence that contradicts her testimony and "any other evidence which is probative on the issue of credibility because of a logical tendency to convince the trier of fact that the witness’s perception, memory, or narration is defective or impaired, or that the sincerity or veracity of the witness is questionable."⁴ Va. R. Evid. 2:607(a)(vii)-(viii); see also Kent Sinclair, The Law of Evidence in Virginia § 12-2[a], at 670 (8th ed. 2018) (noting that the rule provides "an excellent...