Francisco Saucedo, etc v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Willis and Bray
Argued at Norfolk, Virginia
FRANCISCO SAUCEDO, S/K/A
FRANCISCO ZUNIGA SAUCEDO
v. Record No. 1978-94-1 MEMORANDUM OPINION *
BY JUDGE SAM W. COLEMAN III
COMMONWEALTH OF VIRGINIA JULY 5, 1995
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Frederick B. Lowe, Judge
Brandon Baade, Assistant Public Defender
(Office of the Public Defender, on brief),
for appellant.
Katherine P. Baldwin, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Francisco Zuniga Saucedo was convicted in a bench trial of
taking indecent liberties with his thirteen-year-old daughter.
The only issue on appeal is whether the trial judge erred by
refusing to permit defense counsel to ask the thirteen-year-old
victim whether she told the prosecutor that she wanted to drop
the charges against her father. Because the appellant failed to
proffer her answer to the question for the record, we are not
able to determine whether her answer would have been relevant or
material.
On New Year's Eve, Francisco Saucedo spent the evening at
home with his wife and children. At bedtime, all of Saucedo's
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
family retired to their respective bedrooms, except the
thirteen-year-old daughter, who fell asleep on the family room
sofa. During the night, the daughter was awakened by the
pressure of her father on top of her. Her panties and shorts
were partially down, and her father was feeling her breasts. She
told her father to get off her. He told her to be quiet. She
pushed him away and went to her bedroom. Saucedo was
subsequently charged with aggravated sexual battery, attempted
rape, child neglect, and taking indecent liberties. The trial
court convicted him of taking indecent liberties, and this appeal
followed.
On cross-examination of the daughter, defense counsel asked
her about conversations she had with a social worker. She
acknowledged that she had told the social worker that she wanted
to drop the charges against her father. Defense counsel then
asked, "[d]id you inform Mr. Zanin [the prosecutor] you wanted to
drop the charges." The trial court sustained the Commonwealth's
attorney's objection to the question, holding that it was not
relevant whether the thirteen-year-old daughter wanted to drop
the charges. The appellant argued that the answer would have
been relevant because it would have shown bias or prejudice and,
therefore, was exculpatory.
"When an objection is sustained and evidence is rejected, it
is incumbent upon the proponent of the evidence to make a proffer
of the expected answer; otherwise, the appellate court has no
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means of determining if the evidence is material or otherwise
admissible." Speller v. Commonwealth, 2 Va. App. 437, 440, 345
S.E.2d 542, 545 (1986); see also Mostyn v. Commonwealth, 14 Va.
App. 920, 924, 420 S.E.2d 519, 521 (1992); Smith v. Hylton, 14
Va. App. 354, 357-58, 416 S.E.2d 712, 715 (1992).
Although the appellant contends that the victim's answer
would have shown bias and, thus, would have provided exculpatory
evidence, we have no basis for examining that claim. See Spencer
v. Commonwealth, 238 Va. 295, 305, 385 S.E.2d 785, 792 (1989),
cert. denied, 493 U.S. 1093 (1990); see also Mackall v.
Commonwealth, 236 Va. 240, 256-57, 372 S.E.2d 759, 769, cert.
denied, 492 U.S. 925 (1988); Barrett v. Commonwealth, 231 Va.
102, 108, 341 S.E.2d 190, 194 (1986). The appellant's failure to
proffer the victim's answer precludes us from reviewing the
issue. Moreover, to the extent that the victim may have
expressed that sentiment to others in general, and assuming that
her sentiment along that line was relevant and admissible,
evidence that she expressed that sentiment to a social worker was
received in evidence without objection.
We, therefore, affirm the appellant's conviction.
Affirmed.
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