Keith Alexander Mayberry v. Commonwealth of Virginia , 66 Va. App. 93 ( 2016 )


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  •                                           COURT OF APPEALS OF VIRGINIA
    Present: Judges Chafin, O’Brien and Russell
    PUBLISHED
    Argued at Salem, Virginia
    KEITH ALEXANDER MAYBERRY
    OPINION BY
    v.      Record No. 0225-15-3                                   JUDGE MARY GRACE O’BRIEN
    MARCH 8, 2016
    COMMONWEALTH OF VIRGINIA
    FROM THE CIRCUIT COURT OF CAMPBELL COUNTY
    John T. Cook, Judge
    Joseph A. Sanzone (Sanzone & Baker L.L.P., on brief), for
    appellant.
    Virginia B. Theisen, Senior Assistant Attorney General (Mark R.
    Herring, Attorney General, on brief), for appellee.
    A jury convicted Keith Alexander Mayberry (“appellant”) of three crimes: object sexual
    penetration, in violation of Code § 18.2-67.2; indecent liberties with a child while in a custodial or
    supervisory relationship, in violation of Code § 18.2-370.1; and aggravated sexual battery of a child
    less than thirteen years old, in violation of Code § 18.2-67.3. Following a sentencing hearing, the
    court imposed the jury verdicts of life imprisonment for the object sexual penetration charge, five
    years of incarceration for the indecent liberties charge, and twenty years of incarceration for the
    aggravated sexual battery charge. Appellant asserts the following assignments of error:
    I.    The [t]rial court erred by not allowing defendant’s counsel to
    introduce a transcript of the complaining witness’ prior sworn
    testimony as a recent complaint as the defendant has a sixth
    amendment and fourteenth amendment right to a fair trial, which
    would prohibit evidence from being solely used to benefit the
    Commonwealth in a criminal trial.
    II.    The trial court erred by failing to give an instruction which informed
    the jury that if the defendant claimed accidental touching, and that
    the Commonwealth had the burden to prove that the touching was
    not accidental.
    I. BACKGROUND
    “On appeal, ‘we review the evidence in the light most favorable to the Commonwealth,
    granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth,
    
    26 Va. App. 1
    , 11, 
    492 S.E.2d 826
    , 831 (1997) (quoting Martin v. Commonwealth, 
    4 Va. App. 438
    , 443, 
    358 S.E.2d 415
    , 418 (1987)). So viewed, the evidence established that on June 5, 2013,
    the complaining witness (“K.M.”), who was twelve years old, spent the night at appellant’s mobile
    home. Appellant, K.M.’s uncle, lived with his girlfriend, Angela Lopez, and her three sons. Lopez
    and her children were out of town on the evening of June 5.
    K.M. testified that after she and appellant bathed his dog, they sat down to watch television.
    At that time, appellant started hugging her. She stated that he began “touching [her] more
    inappropriately . . . [on her] chest and [her] lower area.” Initially, he touched her over her clothing,
    but eventually he put his hand inside her shorts and underwear. When asked by the prosecutor if
    “any part of [appellant] touch[ed] inside” her private parts, K.M. answered, “Yes.”
    On both direct and cross-examination, K.M. acknowledged that she previously testified at
    the preliminary hearing that appellant did not penetrate “any part” of her. Defense counsel
    cross-examined her at some length concerning her statements at the preliminary hearing. K.M.
    explained that the preliminary hearing was her first time in a courtroom and she was very nervous.
    She asserted that despite her prior inconsistent statements at the preliminary hearing, her trial
    testimony was accurate. Appellant’s counsel attempted to read from and introduce the transcript of
    the preliminary hearing. The Commonwealth’s Attorney objected to the introduction of the
    transcript on the grounds that K.M. never denied making an inconsistent statement during her
    testimony at the preliminary hearing. The trial court sustained the objection.
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    Angela Lopez testified that the victim would often speak to her about what was happening
    in K.M.’s life. Approximately five days after the incident, K.M. told her that on June 5, appellant
    “wouldn’t leave her alone the whole time that she was there, that he kept tickling her.” Lopez stated
    that K.M. said she had asked appellant to stop but he would not, and she was “uncomfortable.”
    K.M. showed Lopez where appellant had been tickling her, on her inner thigh.
    Melissa Nelson, a child protective services investigator, testified at trial. She is certified as a
    forensic interviewer and is trained to speak with children about allegations of sexual abuse. Nelson
    explained that she met with K.M. on June 21, and K.M. told her about the events of June 5. Nelson
    testified that K.M. told her that appellant put his finger in her vagina.
    Investigator Brian Dudley of the Campbell County Sheriff’s Department testified that he
    interviewed appellant on June 12 and June 13, 2013. Appellant confirmed that he was alone with
    K.M. on June 5 and on that night he “had consumed a lot of alcohol and . . . was well on his way to
    being drunk.” During the second interview, Investigator Dudley told appellant that the police had
    recovered appellant’s DNA from inside the victim, which was not true. In response to that
    allegation, appellant told Investigator Dudley that the penetration must have been an accident.
    Appellant testified on his own behalf during trial and unequivocally denied committing the
    offenses. He said that he and K.M. were merely wrestling and tickling but “nothing out of the
    ordinary” happened. He testified that he did not put his finger on or in the victim’s vagina. He said
    that he did not penetrate K.M.’s vagina accidentally, and the only reason he told Investigator
    Dudley that he might have touched her accidentally was because Investigator Dudley lied to him
    about the DNA evidence. At trial, however, he repeatedly testified that no such penetration
    occurred.
    At the conclusion of the testimony, appellant’s counsel moved to introduce the transcript
    from the preliminary hearing both as a recent complaint under Code § 19.2-268.2 and as evidence of
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    a prior inconsistent statement. The trial court sustained the Commonwealth’s objection to the
    introduction of the transcript.
    Appellant proffered a jury instruction that modified an instruction from the Virginia Model
    Jury Instructions from accidental killing to “accidental touching.” The court held that the
    instruction referred to accidental touching as a defense to the charge, but found “touching . . . [is]
    not an element” of any of the charges. Therefore, the court held that the instruction could be
    confusing to the jury and declined to give it.
    II. ANALYSIS
    A. Assignment of Error I: Preliminary Hearing Transcript
    Appellant contends the trial court erred by refusing to admit the transcript of K.M.’s
    testimony at the preliminary hearing because it constituted a recent complaint and was therefore
    admissible pursuant to Code § 19.2-268.2.
    1. Standard of Review
    “Generally, the admissibility of evidence is within the discretion of the trial court and [the
    appellate court] will not reject the decision of the trial court unless [the appellate court] find[s] an
    abuse of discretion.” Midkiff v. Commonwealth, 
    280 Va. 216
    , 219, 
    694 S.E.2d 576
    , 578 (2010). A
    court abuses its discretion
    when a relevant factor that should have been given significant weight
    is not considered; when an irrelevant or improper factor is considered
    and given significant weight; and when all proper factors, and no
    improper ones, are considered, but the court, in weighing those
    factors, commits a clear error of judgment.
    Turner v. Commonwealth, 
    284 Va. 198
    , 206, 
    726 S.E.2d 325
    , 329 (2012) (quoting Landrum v.
    Chippenham & Johnston-Willis Hosps., Inc., 
    282 Va. 346
    , 352, 
    717 S.E.2d 134
    , 137 (2011)).
    -4-
    2. Admissibility of the Transcript Under Code § 19.2-268.2
    Appellant asserts that K.M.’s preliminary hearing testimony was admissible under the
    provisions of Code § 19.2-268.2 and that the court erred by denying the introduction of the
    transcript. We disagree.
    Code § 19.2-268.2 provides:
    Notwithstanding any other provision of law, in any prosecution for
    criminal sexual assault under Article 7 (§ 18.2-61 et seq.) of Chapter
    4 of Title 18.2, a violation of §§ 18.2-361, 18.2-366, 18.2-370 or
    § 18.2-370.1, the fact that the person injured made complaint of the
    offense recently after commission of the offense is admissible, not as
    independent evidence of the offense, but for the purpose of
    corroborating the testimony of the complaining witness.
    Code § 19.2-268.2 is often referred to as the “recent complaint” statute. The statute’s origins are
    found in the common-law rule that a prosecutrix of an alleged rape was required to prove a timely
    complaint to corroborate her claim that an assault was committed against her will. Woodard v.
    Commonwealth, 
    19 Va. App. 24
    , 27, 
    448 S.E.2d 328
    , 330 (1994). Otherwise, the lack of such an
    outcry was viewed historically as casting doubt on the claim that the crime actually occurred. See
    Terry v. Commonwealth, 
    24 Va. App. 627
    , 634, 
    484 S.E.2d 614
    , 617 (1997). Code § 19.2-268.2
    codified this common-law principle and expanded the recent complaint provisions to extend to
    numerous sexual offenses, not only rape.
    Furthermore, we have held that “evidence of an out-of-court complaint by a victim is
    admissible, not as independent evidence of the offense, but as corroboration.” Wilson v.
    Commonwealth, 
    46 Va. App. 73
    , 83, 
    615 S.E.2d 500
    , 505 (2005) (quoting Lindsey v.
    Commonwealth, 
    22 Va. App. 11
    , 14, 
    467 S.E.2d 824
    , 826 (1996)). Accordingly, while Code
    § 19.2-268.2 provides an exception to the hearsay rule, it is only the fact of the complaint that is
    admissible, not the details of the complaint. Breeden v. Commonwealth, 
    43 Va. App. 169
    , 185, 
    596 S.E.2d 563
    , 571 (2004). Further, “the scope of admissibility lies within the sound discretion of the
    -5-
    trial court” on this issue. 
    Id. (quoting Mitchell
    v. Commonwealth, 
    25 Va. App. 81
    , 86, 
    486 S.E.2d 551
    , 553 (1997)).
    K.M.’s testimony at the preliminary hearing was not a “complaint of the offense” as
    contemplated by the statute. The transcript that appellant sought to introduce was not an
    “out-of-court complaint by a victim,” 
    Wilson, 46 Va. App. at 83
    , 615 S.E.2d at 505, but rather,
    in-court testimony by a witness. The portion of the preliminary hearing transcript that appellant
    sought to admit as a “recent complaint” consisted of questions presented to K.M. on
    cross-examination and included her answers, under oath, from the witness stand. Testimony at a
    preliminary hearing differs significantly from the statements that are described in Code
    § 19.2-268.2. Accordingly, the trial court did not err by refusing to admit the preliminary hearing
    transcript under Code § 19.2-268.2.
    3. Admissibility of the Transcript for Impeachment Purposes
    Appellant also asserts that the trial court’s refusal to permit the introduction of the
    preliminary hearing transcript precluded him from introducing evidence in his defense. He argues
    that the transcript “can be used to establish inconsistencies with [K.M.’s] testimony.”1
    The inconsistency between the victim’s testimony at the preliminary hearing and at trial was
    presented to the jury, first by the Commonwealth, and then, through extensive cross-examination,
    by appellant’s counsel. Appellant’s counsel had the opportunity to impeach K.M. with her prior
    1
    In his brief, appellant also argues that Code § 19.2-268.2 “unlawfully and
    unconstitutionally restricts the defendant’s right to counsel and to a fair trial.” Appellant never
    contended at trial that the statute was unconstitutional and deprived him of the right to a fair trial.
    Under Rule 5A:18, “No ruling of the trial court . . . will be considered as a basis for reversal unless
    an objection was stated with reasonable certainty at the time of the ruling.” Although appellant
    noted an objection to the trial court’s ruling that the transcript was inadmissible, he never asserted
    that the statute itself was unconstitutional. Accordingly, we do not consider this argument on
    appeal.
    -6-
    statements. She acknowledged that her testimony differed at the preliminary hearing and offered an
    explanation for the discrepancy.
    We have held that when a witness acknowledges making a prior inconsistent statement, it is
    not error for the trial court to refuse to admit the earlier statement into evidence. Currie v.
    Commonwealth, 
    30 Va. App. 58
    , 72-73, 
    515 S.E.2d 335
    , 342 (1999) (affirming trial court’s denial
    of admission of preliminary hearing testimony when the witness acknowledged making the
    inconsistent statement). Therefore, we find that appellant was not denied an opportunity to impeach
    the victim with her testimony at the preliminary hearing.
    B. Assignment of Error II: Jury Instruction on Accidental Touching
    Appellant argues that the trial court erred by failing to give an instruction to the jury
    regarding “accidental touching.” We disagree.
    1. Standard of Review
    Granting or denying jury instructions “rest[s] in the sound discretion of the trial court.”
    Cooper v. Commonwealth, 
    277 Va. 377
    , 381, 
    673 S.E.2d 185
    , 187 (2009). On appeal, we review
    the trial court’s ruling for an abuse of discretion. Gaines v. Commonwealth, 
    39 Va. App. 562
    , 568,
    
    574 S.E.2d 775
    , 778 (2003) (en banc).
    “A reviewing court’s responsibility in reviewing jury instructions is ‘to see that the law has
    been clearly stated and that the instructions cover all issues which the evidence fairly raises.’”
    Darnell v. Commonwealth, 
    6 Va. App. 485
    , 488, 
    370 S.E.2d 717
    , 719 (1988) (quoting Swisher v.
    Swisher, 
    223 Va. 499
    , 503, 
    290 S.E.2d 856
    , 858 (1982)). However, while a defendant is entitled to
    have the jury instructed on his theory of the case, such an instruction must be supported by “[m]ore
    than a scintilla of evidence.” Eaton v. Commonwealth, 
    240 Va. 236
    , 255, 
    397 S.E.2d 385
    , 397
    (1990). “The weight of the credible evidence that will amount to more than a mere scintilla . . . is a
    matter to be resolved on a case-by-case basis.” Woolridge v. Commonwealth, 
    29 Va. App. 339
    ,
    -7-
    348, 
    512 S.E.2d 153
    , 157 (1999). Upon review, the evidence must be viewed in the light most
    favorable to the proponent of the instruction. King v. Commonwealth, 
    64 Va. App. 580
    , 583, 
    770 S.E.2d 214
    , 216 (2015) (en banc).
    2. Jury Instruction on Accidental Touching
    At the conclusion of the evidence, appellant requested that the following instruction be
    given to the jury (“Instruction B”):
    Where the defense is that the touching was an accident, the
    defendant is not required to prove this fact. The burden is on the
    Commonwealth to prove beyond a reasonable doubt that the
    touching was not accidental. If after considering all the evidence you
    have a reasonable doubt whether the touching was accidental or
    intentional, then you shall find the defendant not guilty.
    Instruction B is a modification of the Model Jury Instruction that addresses “accident” as a defense
    to homicide. At trial, appellant argued that “accidental explanations for any intentional act are the
    same.”
    The evidence presented at trial did not support granting Instruction B. Appellant’s theory of
    the case was not that any touching was accidental; he vehemently and repeatedly denied ever
    sexually abusing K.M. or penetrating her vagina with his finger. The only evidence supporting an
    “accident” defense was appellant’s statement during his second interview with the investigator that
    if his DNA was found inside the victim, it must have been because his finger slipped. However,
    appellant repudiated that statement at trial.
    At trial, appellant explained that he only said that he may have committed the offense “by
    accident” because he was deceived by the investigator’s false statement that his DNA was found
    inside the victim, not because he actually thought he might have accidentally touched K.M. When
    asked by the Commonwealth’s Attorney, “[W]ell did it happen, or did it not happen?,” appellant’s
    response was that “[i]t did not happen.”
    -8-
    A defendant is only entitled to instruct the jury “on those theories of the case that are
    supported by evidence.” Connell v. Commonwealth, 
    34 Va. App. 429
    , 436, 
    542 S.E.2d 49
    , 52
    (2001) (emphasis added). Accidental touching was not the defense theory of the case. Appellant
    testified that he never touched the victim’s vagina, intentionally or otherwise. Rather, as defense
    counsel argued during closing, the defense theory was that “[t]he poor thing [referring to K.M.] is
    making it up as she goes along.” The court did not err by denying the jury instruction.2
    III. CONCLUSION
    For the foregoing reasons, the decision of the trial court is affirmed.
    Affirmed.
    2
    Because we hold that the evidence did not support granting the jury instruction, we need
    not address any alleged error in the trial court’s finding that touching was not an element of any
    of the offenses.
    -9-