David Lee Thompson v. Commonwealth ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Annunziata
Argued at Alexandria, Virginia
DAVID LEE THOMPSON
OPINION BY
v. Record No. 2550-97-4 JUDGE JERE M. H. WILLIS, JR.
DECEMBER 1, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Benjamin N. A. Kendrick, Judge
Jerry C. Lyell for appellant.
Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Upon appeal from his conviction for forcible anal sodomy, in
violation of Code § 18.2-67.1, David Lee Thompson contends that
the trial court erroneously granted the Commonwealth's motion in
limine, prohibiting him from cross-examining the victim
concerning her allegedly false statement about prior sexual acts.
We find no error and affirm the judgment of the trial court.
I. BACKGROUND
At the time of the incident on trial, the victim was
thirteen years old. She and her two younger siblings stayed at
their grandmother's house while their mother was at work.
Thompson, the victim's uncle, lived with the grandmother and was
often home when the children were there. On June 29, 1996, the
victim called her mother at work and complained that Thompson was
"messing with her." The victim's mother called the police and
left work immediately to go to the grandmother's house.
When the victim's mother arrived at the house, the police
were already there. Upon being questioned in the presence of her
mother, the victim told the police that Thompson had sodomized
her anally two weeks before, on June 14, 1996. She further
stated, in the presence of her mother, that she had never engaged
in any type of sexual intercourse before that incident. She was
then taken to Fairfax Hospital and was examined by a registered
nurse who specialized in sexual assault examinations. The nurse
found on the victim's rectum a healed scar, signifying an injury
that had occurred at least ten days earlier. Although the victim
had told the police that she had never before been sexually
active, she admitted to the nurse that she had engaged in
consensual vaginal intercourse at least twice, with two young
boys.
Thompson was charged with forcible anal sodomy, in violation
of Code § 18.2-67.1. The Commonwealth moved in limine to bar
Thompson from cross-examining the victim about the acts of
consensual sexual intercourse with the two boys and about her
statements to the police and the nurse. The trial court granted
the motion in limine. The jury found Thompson guilty of forcible
anal sodomy and fixed his sentence at seven years in prison.
II. THE "RAPE SHIELD STATUTE"
Code § 18.2-67.7, the "Rape Shield Statute" provides, in
pertinent part:
A. In prosecutions [for forcible sodomy],
general reputation or opinion evidence of the
complaining witness's unchaste character or
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prior sexual conduct shall not be admitted.
Unless the complaining witness voluntarily
agrees otherwise, evidence of specific
instances of his or her prior sexual conduct
shall be admitted only if it is relevant and
is:
1. Evidence offered to provide an
alternative explanation for physical evidence
of the offense charged which is introduced by
the prosecution, limited to evidence designed
to explain the presence of semen, pregnancy,
disease, or physical injury to the
complaining witness's intimate parts; or
. . . .
By cross-examining the victim concerning her false statement
to the police and her subsequent admission to the nurse, Thompson
would have injected into the case evidence of the victim's prior
sexual conduct. Thompson argues that this evidence would have
provided an alternative theory of the crime, explaining the
victim's rectal scar. Code § 18.2-67.7(A)(1). He argues that
the rectal scarring could have been caused by consensual anal
intercourse with a third party. No evidence supports that
theory. The suppressed cross-examination could not have done so.
Consensual vaginal intercourse would not have caused the scar on
the victim's rectum. Thus, evidence of the victim's false denial
of earlier intercourse does not fall within the exception
contained in Code § 18.2-67.7(A)(1).
Evidence of the victim's past sexual activity would have
served only to degrade her reputation. Such evidence would have
been highly prejudicial and is specifically what the "Rape Shield
Statute" was designed to prevent. "Where . . . the only purpose
offered for introducing evidence of the victim's prior sexual
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conduct is to establish her propensity to engage in consensual
sexual acts or to impeach her general credibility, such evidence
is rendered inadmissable under [Code § 18.2-67.7]." Currie v.
Commonwealth, 10 Va. App. 204, 207-08, 391 S.E.2d 79, 81 (1990).
III. IMPEACHMENT
Thompson argues that he sought to disclose not the victim's
prior sexual conduct but merely her false statement to the
police, seeking thereby to impeach her credibility. The
suppressed evidence would have been improper for that purpose.
If Thompson wished to impeach the victim's credibility, the
proper method was by evidence of her general reputation for
truthfulness, not by proof of a single false statement. See
Clark v. Commonwealth, 202 Va. 787, 789-90, 120 S.E.2d 270, 272
(1961).
IV. PROOF OF A FALSE ACCUSATION
In Clinebell v. Commonwealth, 235 Va. 319, 368 S.E.2d 263
(1988), the Supreme Court enunciated a special rule relating to
impeachment in sexual assault cases. The Court said:
[O]ne method of impeaching a witness is by
attacking that witness' character.
Ordinarily, character is attacked by
presenting testimony that the witness'
general reputation and veracity is bad.
Generally, . . . character may not be
impeached by showing specific facts of
untruthfulness or bad conduct.
In sex offense cases, however, . . . 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.
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Id. at 323-24, 368 S.E.2d at 265 (citations omitted) (emphasis
added).
Consequently, in a sex crime case, the
complaining witness may be cross-examined
about prior false accusations, and if the
witness denies making the statement, the
defense may submit proof of such charges.
Id. at 325, 368 S.E.2d at 266 (citations omitted).
Thompson argues that the foregoing rule authorized
cross-examination of the victim concerning her denial to the
police and in the presence of her mother that she had engaged in
prior intercourse and the falsity of that statement. We
disagree.
The suppressed statement was not an accusation. It was a
personal denial, induced, no doubt, by embarrassment and fear.
In no sense could it be deemed a false accusation. Nor could it
be construed as part of a system of false accusations, casting
doubt on the victim's accusation against Thompson.
For the foregoing reasons, the judgment of the trial court
is affirmed.
Affirmed.
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