Lonnie Ray Myers v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Humphreys and Senior Judge Overton
Argued at Chesapeake, Virginia
LONNIE RAY MYERS
MEMORANDUM OPINION * BY
v. Record No. 0651-00-1 JUDGE JERE M. H. WILLIS, JR.
JUNE 5, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Frederick H. Creekmore, Judge
James B. Melton for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
On appeal from his conviction of committing forcible sodomy
upon a child under the age of thirteen years, in violation of Code
§ 18.2-67.1, Lonnie Ray Myers contends that the trial court erred
in admitting irrelevant, hearsay testimony by the victim's mother.
Finding no error, we affirm the judgment of the trial court.
I. BACKGROUND
In October 1998, Myers invited A.M., the nine-year-old
victim, and K.M., her eight-year-old sister, to his house. The
two girls and Myers played "the monster game" where the girls
were "explorers . . . and [Myers] tries to eat [them] like he's
a big fierce monster." A.M. testified that, during the course
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
of playing the game, Myers "pulled down [her] pants and
underwear," held her legs apart, and used his fingers to
separate her "vagina" and licked it.
At trial, the Commonwealth elicited from A.M.'s mother,
over Myers' objection, testimony regarding changes in A.M.'s
behavior following the alleged sexual abuse. The following
colloquy occurred:
[COMMONWEALTH]
Q: How has [A.M.] been dealing with
this since it's all come to light?
[DEFENSE COUNSEL]: Judge, I
object here on relevance grounds. I don't
see why that is relevant.
THE COURT: I overrule the
objection.
THE WITNESS: Since this has come
to light, [A.M.] wishes she were dead. She
says that to me constantly throughout the
past ten months. She doesn't understand why
it happened to her.
[DEFENSE COUNSEL]: This is all
hearsay, too. So I'm objecting. It's based
on [A.M.'s] statements to her.
[COMMONWEALTH]: Your Honor, she
is her mother. She is able to determine how
her daughter -- the feelings that she has,
how her reactions and her behavior has been
since this has all come to light. That's
what the Commonwealth is trying to elicit
from her mother.
THE COURT: I think under those
circumstances that that would be a proper
question. Therefore, I overrule your
objection.
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[COMMONWEALTH]
Q: If you could, continue, please.
A: Okay. She would wake up in the
middle of the night with nightmares. She's
had flashbacks. She doesn't trust hardly
anybody anymore.
Q: This has been very hurtful?
A: To say the least. This wasn't a
stranger. This was someone that we all
trusted. So, I mean, I can't handle it.
How can she?
Q: And what have you done for [A.M.]
since this has all come to light in order to
alleviate that pain for her?
A: She's been seeing therapists.
She's on antidepressants to help with her
suicidal thoughts. I mean, she's ten years
old, and she wants to kill herself.
The jury convicted Myers of committing sodomy on a child
under thirteen years of age, in violation of Code § 18.2-67.1.
II. THE TESTIMONY
"The admissibility of evidence is within the broad
discretion of the trial court, and a ruling will not be
disturbed on appeal in the absence of an abuse of discretion."
Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842
(1988). Myers contends that the trial court erred in admitting
irrelevant, hearsay testimony of the victim's mother. We
disagree.
A. RELEVANCE
Evidence is generally admissible if it is both relevant and
material. See Evans-Smith v. Commonwealth, 5 Va. App. 188, 196,
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361 S.E.2d 436, 441 (1987). "Evidence is relevant if it has any
logical tendency, however slight, to establish a fact at issue
in the case." Ragland v. Commonwealth, 16 Va. App. 913, 918,
434 S.E.2d 675, 678 (1993).
Applying this standard, we cannot say that the trial court
abused its discretion in ruling that the mother's testimony was
relevant and in allowing her to testify about A.M.'s behavior
following the alleged sexual abuse. The testimony addressed
A.M.'s mental state resulting from the alleged assault. A.M.'s
mental state was a circumstance tending to prove a material
issue in the case, namely whether she had been sexually abused.
Therefore, it was relevant. 1
B. HEARSAY
"Hearsay is a statement, other than one made by the
declarant while testifying at trial, which is offered to prove
the truth of the matter asserted." Clark v. Commonwealth, 14
1
Our decision to treat this testimony as relevant accords
with other jurisdictions that have decided the issue. See State
v. Reser, 767 P.2d 1277, 1279 (Kan. 1989) (reasoning that
victim's behavior subsequent to reported assault is relevant
corroborative evidence); State v. Dube, 598 A.2d 742, 746 (Me.
1991) (holding that evidence of changes in victim's personality
and behavior was relevant); State v. Messa, 542 A.2d 1071,
1074-75 (R.I. 1988) (holding that changes in victim's behavior
was admissible); State v. Cosey, 873 P.2d 1177, 1182 (Utah Ct.
App. 1994) (holding that evidence of a drastic change in the
victim's behavior is relevant circumstantial evidence that a
traumatic experience has occurred); State v. Denny, 617 A.2d
425, 427 (Vt. 1992) (holding that evidence of changes in
victim's behavior and personality after the incident was
material to whether the sexual abuse had occurred).
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Va. App. 1068, 1070, 421 S.E.2d 28, 30 (1992). "Unless it is
offered to show its truth, an out-of-court statement is not
subject to the rule against hearsay and is admissible if
relevant." Church v. Commonwealth, 230 Va. 208, 212, 335 S.E.2d
823, 825 (1985).
In Church, the Supreme Court addressed the statement of a
young victim who told her mother that sex was "'dirty, nasty and
it hurt.'" Id. at 211-15, 335 S.E.2d at 825-27. The Court
ruled that the child's statement was not hearsay. See id.
The Commonwealth did not offer the child's
statement to prove that sex is "dirty, nasty
and it hurt." Rather, it was offered to
show the child's attitude toward sex, an
attitude likely to have been created by a
traumatic experience. Although the child
made no prompt report of the crime, the
Commonwealth was entitled to prove, by
circumstantial evidence, that she had been a
victim. Thus, the child's out-of-court
statement was not hearsay, but was
admissible as circumstantial evidence
tending to establish the probability of a
fact in issue.
Id. at 212, 335 S.E.2d at 825-26.
Similarly, in this case, the challenged testimony was not
offered for the truth of its content. It was offered only to
show A.M.'s behavioral changes following the event, changes
likely to have resulted from a traumatic experience.
Accordingly, we cannot say that the trial court abused its
discretion in admitting the mother's testimony into evidence.
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For these reasons, we affirm the judgment of the trial
court.
Affirmed.
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