Poff v. Commonwealth

• Decision Date: 24 January 2017
• Docket Number: Record No. 0911-15-1
• Court: Court of Appeals of Virginia
• Parties: TERRY LEE POFF, S/K/A TERRY LEE POFF, JR. v. COMMONWEALTH OF VIRGINIA

TERRY LEE POFF, S/K/A TERRY LEE POFF, JR. v. COMMONWEALTH OF VIRGINIA

Record No. 0911-15-1

COURT OF APPEALS OF VIRGINIA

JANUARY 24, 2017

UNPUBLISHED

Present: Judges Beales, Chafin and Senior Judge Bumgardner

Argued at Chesapeake, Virginia

MEMORANDUM OPINION^* BY JUDGE RANDOLPH A. BEALES

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK

Junius P. Fulton, III, Judge

James O. Broccoletti (Randall J. Leeman, Jr.; Zoby, Broccoletti & Normile, P.C., on brief), for appellant.

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

Terry Lee Poff ("appellant") was indicted for and convicted in a jury trial of one count of taking indecent liberties with a minor while in a custodial or supervisory role in violation of Code § 18.2-370.1 and one count of forcible sodomy in violation of Code § 18.2-67.1.¹ On appeal, we consider whether the trial court abused its discretion in refusing to admit witness testimony about an alleged prior false accusation previously made by the alleged victim in this case.

I. BACKGROUND

The alleged victim, K.A.,² is the daughter of appellant's live-in girlfriend. At the time of the alleged offense, K.A. was fifteen years old. In the early morning hours of January 23, 2014, as appellant and K.A. sat in the living room alone together, appellant told K.A. that he had a scar on his penis and offered to show her. She testified that, although she said that she did not want to see it, he pulled down his pants and asked her to touch his penis because "I can only show you if my penis is hard." When she said she did not want to touch his penis, he said, "Just do it." K.A. testified that he then told her to "give [him] a blow job." K.A. testified that, after she said no, he said, "Why? It's clean." K.A. also testified that appellant then told her to stop and lie down. When she laid down, he told her to remove her pants. When she eventually complied, she testified that he proceeded to have vaginal intercourse with her. After five to six minutes, appellant told her, "[W]e should stop before your mom wakes up. Put your pants back on." He allowed her to go to her room, and she locked herself in her room and called her grandmother. She then slipped out of her house and met her grandmother at a nearby 7-Eleven. The grandmother alerted K.A.'s father, who came and took K.A. to the hospital for examination. K.A. told police and the sexual assault nurse examiner (SANE) that she had been assaulted.

The police collected DNA evidence from appellant around 2:00 p.m. on January 23, 2014. Don Cunnius, a forensic scientist with the Virginia Department of Forensic Science, examined the swabs taken from appellant's genitals and underwear for DNA. Mr. Cunnius testified before the jury that he was "able to develop a [DNA] profile from [appellant's ] pubic area swabs, as well as the inner fly area of the underpants." Mr. Cunnius testified, "[K.A.]cannot be eliminated as a contributor of this foreign profile." It was more than 1.3 quadrillion times more likely to be DNA from K.A. than anyone else.

When K.A. testified, she was cross-examined by appellant's trial counsel regarding a "prior false accusation" made to her friend, A.H.

[Appellant's Attorney:] You ever made any comments to [A.H.] about having been raped, three men tied you to a tree and raped you?

[K.A.:] That I never said to her.

[Attorney:] You deny telling her that?

[K.A.:] I deny telling her that.

[Attorney:] You made comments to her about having been raped by a person named Panda?

[K.A.:] Is his name Michael?

[Attorney:] Yes.

[K.A.:] Yes.

[Attorney:] So you told her you were raped by another person?

[K.A.:] Sure.

[Attorney:] Sure?

[K.A.:] Yes.

[Attorney:] Did you tell her that was a falsehood?

[K.A.:] What?

[Attorney:] Did you tell the young lady, [A.H.] -

[K.A.:] That it never happened?

[Attorney:] Yeah.

[K.A.:] At the time she was my best friend, and when I told her, I was joking around.

[Attorney:] You were joking around?

[K.A.:] Yes.

[Attorney:] All a big joke to you?

[K.A.:] No.

During appellant's case-in-chief, appellant's counsel sought to have A.H. testify as A.H. had been K.A.'s best friend. Appellant's counsel asked the trial court to allow A.H. to testify because

on direct examination and cross examination of the victim in this - alleged victim in this case, I asked her if she ever told [A.H.] about the fact that she had been tied to a tree and raped by three men. She said no, she had not. [A.H.], I believe, will testify to the effect, in fact, [K.A.] did tell her that, and [K.A.] said that was a lie, not true.

A.H. gave testimony under oath before the trial court but outside of the presence of the jury. A.H. testified that K.A. "was my best friend. She lived a couple blocks away from me." A.H. also testified to the following:

[Appellant's Attorney:] Was there ever a conversation initiated by [K.A.] with regard to a rape scenario regarding three men?

[A.H.:] Yes.

[Attorney:] Could you tell the judge what the conversation was?

[A.H.:] She called me one day, and she told me that she had just been raped, and she said that she was riding her dirt bike and three men came up to her and they tied her up to a tree, and then she said she, like, blacked out and she woke up in a bed, and then she called her girlfriend to come get her.

[Attorney:] And approximately when did this conversation take place?

[A.H.:] A couple years ago.

[Attorney:] And you're sure it was [K.A.] who made the conversation call to you?

[A.H.:] Yes.

[Attorney:] And after that conversation, was there any other conversation between you and [K.A.] regarding this incident?

[A.H.:] Yes. About in, like, last December, we were talking about another boy she had had sex with, and then I brought up the three-guys incident, and then she said that she had just been joking about it.

The trial court said, "Just so the record is clear, the issues that counsel and the Court have to deal with is whether or not under the circumstance of this case where the defense claims that the victim made a false allegation of rape and then acknowledged the falsity of that allegation should come in."

Appellant's trial counsel made his position clear by stating, "It was my position, Judge, that it was an issue of credibility. It's not an issue that comes under the rape shield law." The trial court ultimately sustained the Commonwealth's objection and did not permit A.H. to testify. The trial court determined that no principle of law permits the use of extrinsic evidence to attack the credibility of a witness and ruled A.H.'s testimony was therefore inadmissible. The trialcourt focused on Clinebell v. Commonwealth, 235 Va. 319, 368 S.E.2d 263 (1988), and found that the testimony was not permitted under Virginia's rape shield statute. The trial court stated:

[I]t should be noted that [K.A.] denies ever making that statement to the witness who just testified, [A.H.]. And also, the subsequent statement attributed to [K.A.] by the witness [A.H.] admitting that the past sexual assault did not take place, that's also denied by [K.A.]. Given the weight of the evidence in Clinebell and the other cases that the counsel and the court has brought up in our discussions on this matter, I'm going to note your exception to the court's ruling and deny the opportunity for her to testify.

Ultimately, the jury found appellant guilty of forcible sodomy and taking indecent liberties with a minor while in a custodial or supervisory role, but acquitted appellant of rape and of abduction with intent to defile.

II. ANALYSIS

A. Standard of Review

"We review a circuit court's decision to admit or exclude evidence under an abuse of discretion standard and, on appeal, will not disturb a circuit court's decision to admit evidence absent a finding of abuse of that discretion." Herndon v. Commonwealth, 280 Va. 138, 143, 694 S.E.2d 618, 620 (2010). However, this Court reviews questions of law, such as questions of statutory construction and issues of constitutional law, de novo.

B. Prior False Accusations: Proper Impeachment Evidence?

Appellant raises the following assignment of error:

The trial court erred and abused its discretion by not allowing the defendant to introduce relevant testimony concerning the alleged victim's prior false allegation of rape. The trial court's ruling that such testimony was inadmissible extrinsic evidence deprived the defendant of the opportunity to provide evidence that was vital to his defense.

On appeal, appellant argues, "[A.H.], who was an unbiased witness and who was described by both herself and [K.A.] as [K.A.'s] best friend, proffered testimony that was indirect contradiction to [K.A.'s] denial of the second false allegation of rape." Pet. for App. at 16. As such, appellant argues that A.H. should have been allowed to testify in order to impeach K.A.'s credibility.

1. Prior False Accusation Not Protected by the Rape Shield Statute

The Commonwealth argues that A.H.'s testimony about a prior false accusation was governed by the rape shield statute and that appellant was not allowed to offer A.H.'s testimony to the jury because appellant did not seek a hearing pursuant to the rape shield statute. As a threshold matter, A.H.'s testimony about a false accusation of rape cannot fall under Code § 18.2-67.7 (sometimes referred to as the "rape shield statute") because it is not testimony about her past sexual activity but an alleged lie that she told about alleged sexual activity. K.A. never asserted at trial that the "three-person rape" was true, but simply claimed that she never told such a story to A.H. In Clinebell v. Commonwealth, 235 Va. 319, 368 S.E.2d 263 (1988), the Supreme Court explained, "[Appellant] 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 [the rape shield statute], and therefore, the section is inapplicable." Id. at 323, 368 S.E.2d at 264. Similarly, ...