Roy G.E. Longfield (s/k/a Roy W.) v. Commonwealth ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Clements and Agee
Argued at Richmond, Virginia
ROY G. E. LONGFIELD, S/K/A
ROY W. LONGFIELD
MEMORANDUM OPINION * BY
v. Record No. 0303-01-2 JUDGE G. STEVEN AGEE
JANUARY 29, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF WESTMORELAND COUNTY
Horace A. Revercomb, III, Judge
Gordon A. Wilkins (Wilkins & Davison, on
brief), for appellant.
Eugene Murphy, Assistant Attorney General
(Randolph A. Beales, Attorney General, on
brief), for appellee.
Roy G.E. Longfield (Longfield) was found guilty by a jury
and convicted of two counts of aggravated sexual battery, in
violation of Code § 18.2-67.3, and of having carnal knowledge of
a child between the ages of 13 and 15, in violation of Code
§ 18.2-63. He was sentenced to serve a term of four years
incarceration and to pay fines totaling $3,000. On appeal he
contends the trial court erred by (1) allowing more than two
witnesses to testify in corroboration of the victim's complaint
being made and (2) refusing to declare a mistrial after a
witness testified that the victim was afraid Longfield would
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
hurt other children. For the following reasons, we affirm the
decisions of the trial court.
I. BACKGROUND
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, only those facts necessary to a disposition of this
appeal are recited.
Longfield sexually assaulted the complainant (the victim)
in 1998 when she was twelve years old. In 1999, shortly after
the victim turned thirteen years old, Longfield had sexual
intercourse with her. Two weeks after this incident, the victim
told her brother and a friend of the assaults. The brother
arranged for their mother to be told about the incident. Later,
the victim described the assaults to her special education
teacher, an investigating police officer and her therapist.
At trial, the brother, the mother, the teacher, the
investigating officer and the therapist each testified as to the
victim's outcry to him or her. Longfield objected to the
testimony of the teacher, the officer and the therapist as "a
parade of witnesses" and "piling on evidence." The objection
was overruled.
The therapist also testified that the victim "was very
concerned that [Longfield], would harm other young girls."
Longfield objected to this statement and moved for a mistrial.
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The trial judge took the motion under advisement and later
instructed the jury to ignore the statement.
II. THE ALLOWANCE OF MULTIPLE WITNESSES
Longfield's first contention on appeal is that the trial
court erred in allowing more than two witnesses to testify as to
the victim telling each of them of her assault. Longfield does
not argue that all witness testimony regarding the victim's
complaints of sexual assault should have been excluded, only
those made to the teacher, the investigating officer and the
therapist. He does not challenge the timeliness of any of the
complaints, nor does he suggest that the foundation provided for
the witnesses' testimony was improper. He contends the
Commonwealth was limited to two witnesses to the victim's
complaint and the testimony of any additional witnesses is
barred by the hearsay rule. Further, he argues that the
testimony given by the teacher, the investigating officer and
the therapist of the victim's prior consistent statements was
"merely cumulative and . . . prejudicial to [him]." Upon a
review of the record, we find no reversible error.
A. STANDARD OF REVIEW
Whether evidence is admissible lies within the sound
discretion of the trial court and will not be disturbed on
appeal absent an abuse of discretion. See Blain v.
Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988).
Longfield bears the burden of showing that the trial court's
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ruling to admit the evidence of the victim's complaints of
sexual assault constituted reversible error. See Fore v.
Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731, cert.
denied, 449 U.S. 1017 (1980). Longfield failed to meet this
burden.
B. THE TESTIMONY WAS NOT INADMISSIBLE HEARSAY
The testimony of the teacher, the investigating officer and
the therapist was admitted as corroboration of the victim's
testimony that Longfield had sexually assaulted her and that she
had been consistent in her allegations. Longfield complains
that the trial court erred in allowing the testimony, averring
the Commonwealth was limited by the hearsay rule to two "recent
complaint" witnesses (the mother and brother of the victim).
"As a general rule, a prior consistent statement of a
witness is inadmissible hearsay." Faison v. Hudson, 243 Va.
397, 404, 417 S.E.2d 305, 309 (1992). However, Virginia common
law permitted an exception to the general rule of exclusion to
admit into evidence recent complaints of rape or other sexual
abuse as corroborating evidence. Terry v. Commonwealth, 24 Va.
App. 627, 632-33, 484 S.E.2d 614, 616-17 (1997). The General
Assembly codified this exception when Code § 19.2-268.2 was
adopted in 1993, which provides that "in any prosecution for
criminal sexual assault . . ., 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
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offense, but for the purpose of corroborating the testimony of
the complaining witness."
The plain language of the statute does not limit the number
of recent complaints that the Commonwealth may introduce into
evidence to corroborate the victim's testimony. There is also
no case law barring the Commonwealth from presenting more than
two corroborating witnesses. Therefore, each witness' testimony
was admissible and not barred by the hearsay rule.
C. THE TESTIMONY WAS NOT UNDULY CUMULATIVE OR PREJUDICIAL
Longfield further challenges the testimony of the three
witnesses as cumulative and unduly prejudicial. Again, we do
not find the admittance of the testimony to be reversible error.
The testimony of the teacher, the investigating officer and
the therapist corroborated the victim's testimony that her
accusations against Longfield were not inconsistent
fabrications. Corroborative evidence is evidence that "adds to,
strengthens, and confirms the [witness'] testimony." Clay v.
Commonwealth, 33 Va. App. 96, 110, 531 S.E.2d 623, 629 (2000).
Longfield put the victim's credibility into question on
cross-examination of the victim and through his own witnesses.
He asked the victim whether she recalled telling two of her
friends/classmates that she was not abused. He asked if she
recalled being willing to move, after the alleged assaults, into
the same house where Longfield was living. Longfield presented
witnesses who testified the victim told them the alleged events
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of sexual abuse did not occur. His questions indicated that the
victim was inconsistent and was fabricating the alleged abuse.
To contradict Longfield's direct challenge to the victim's
veracity, the Commonwealth was fully entitled to present
witnesses to confirm that the victim had complained of the
abuse.
Even if the corroborating testimony was also cumulative, it
was admissible. "'Where testimony is material "even though
cumulative to some extent" it should nonetheless be
considered.'" Id. at 110, 531 S.E.2d at 630 (quoting Massey v.
Commonwealth, 230 Va. 436, 442, 337 S.E.2d 754, 758 (1985)).
"Evidence is admissible if it tends to prove a matter that is
properly at issue in the case and if its probative value
outweighs policy considerations." Blain, 7 Va. App. at 17, 371
S.E.2d at 842. "Evidence which 'tends to cast any light upon
the subject of the inquiry' is relevant." Cash v. Commonwealth,
5 Va. App. 506, 510, 364 S.E.2d 769, 771 (1988) (quoting McNeir
v. Greer-Hale Chinchilla Ranch, 194 Va. 623, 629, 74 S.E.2d 165,
169 (1953)). Here, whether the victim's allegation was a
fabrication or that she was inconsistent in relaying her
complaint to witnesses, was a central and controlling issue in
this case. The testimony of the witnesses was, therefore,
probative.
Upon finding the testimony to be material, we are now
required to determine whether the probative value of this
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testimony is outweighed by any prejudicial effect to Longfield.
Clay, 33 Va. App. at 107, 531 S.E.2d at 628.
Some of the factors which may be considered
in determining whether the evidence is
unduly prejudicial and the trial court
abused its discretion in judging the balance
in favor of admission include whether the
content of the statements tends to "arouse
the jury's hostility or sympathy for one
side without regard to the probative value
of the evidence," McCormick on Evidence
§ 185, at 780 [(4th ed. 1992)], and whether
it tends to confuse or mislead the trier of
fact, see id. at 781, or distract it to
irrelevant considerations. See id.
Finally, where the proofs and counterproofs
of such facts require an inordinate amount
of time to accomplish, the evidence may
properly be excluded. See id.; State v.
Patricia A. M., 500 N.W.2d 289, 294 (Wis.
1993) ("Evidence is unduly prejudicial when
it threatens fundamental goals of accuracy
and fairness of trial by misleading [the]
jury or by influencing [the] jury to decide
[the] case on [an] improper basis, and
unfairness attaches if evidence tends to
influence outcome by improper means, or it
appeals to [the] jury's sympathies, arouses
its sense of horror, promotes its desire to
punish or otherwise causes [the] jury to
base its decision on extraneous
considerations.").
Id. at 107-08, 531 S.E.2d at 628.
We find the probative effect of the evidence was not
outweighed by any potential for prejudicing the jury in its
consideration of the issues. The probative value of knowing
that the victim had consistently informed several witnesses of
the alleged abuse outweighed any prejudice perceived by
Longfield.
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Therefore, the trial court, within its discretion,
correctly admitted the collaborating testimony of the teacher,
the investigating officer and the therapist. There was no
reversible error.
III. MOTION FOR MISTRIAL
Longfield's second contention on appeal is that the trial
court erred in failing to grant a mistrial after a witness
testified that the victim was concerned Longfield would harm
other young girls. He argues the testimony was prejudicial and
could not be sufficiently cured by a cautionary instruction to
the jury to disregard the statement.
"Whether improper evidence is so prejudicial as to require
a mistrial is a question of fact to be resolved by the trial
court in each particular case." Beavers v. Commonwealth, 245
Va. 268, 280, 427 S.E.2d 411, 420 (1993) (citing Lewis v.
Commonwealth, 211 Va. 80, 83, 175 S.E.2d 236, 238 (1970)).
"[W]hether a trial court should grant a mistrial is a matter
resting within its discretion, and absent a showing of abuse of
discretion, the court's ruling will not be disturbed on appeal."
Cheng v. Commonwealth, 240 Va. 26, 40, 393 S.E.2d 599, 607
(1990). The judgment "will not be reversed for the improper
admission of evidence that a court subsequently directs a jury
to disregard because juries are presumed to follow prompt,
explicit, and curative instructions." Beavers, 245 Va. at 280,
427 S.E.2d at 420. Only if a manifest probability existed as a
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matter of law that the improper evidence prejudiced Longfield by
remaining on the minds of the jury and influencing their verdict
despite the instruction to disregard it, will the trial court's
decision be reversed. See Mills v. Commonwealth, 24 Va. App.
415, 420, 482 S.E.2d 860, 862 (1997). "Whether a manifest
probability exists that the improper evidence prejudiced the
accused despite [a court's] cautionary instruction depends upon
the nature of the incompetent evidence when considered in
relation to the nature of the charges, the other evidence in the
case, and [the] manner in which the prejudicial evidence was
presented." Id. at 420-21, 482 S.E.2d at 862-63. 1
Upon review of the record, we hold that the curative
instruction was clear and easily understood by the jury that the
therapist's statement was not evidence in the case and it was
not to be considered by the jury. The therapist was asked "Did
she[, the victim,] express to you any concerns with regards to
Mr. Longfield after she came to you?" The therapist replied,
"Yes she did. She was very concerned that he would harm other
young girls." Longfield immediately objected and asked for a
mistrial. The trial judge, recognizing the response was
"extremely prejudicial," addressed the jury: "I instruct you to
1
There is no allegation in this case that the witness'
testimony was contrived or intentionally offered by the witness
to prejudice the jury. That is in distinct contrast to the
contested testimony in Mills, which appeared to be deliberately
manipulated by the witness to be prejudicial.
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entirely disregard that statement, and set it aside. You cannot
consider that testimony at all."
In view of the weight of the submitted evidence that the
victim had been assaulted, the manner in which the victim's
fears were mentioned by the therapist and the speed, clarity and
decisiveness of the trial judge's curative instruction, we do
not find that a manifest probability existed that the jury's
verdict was affected by hearing the testimony in question.
Accordingly, we cannot say that the trial court abused its
discretion as a matter of law.
For the forgoing reasons, we uphold the decisions of the
trial court and affirm Longfield's convictions.
Affirmed.
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