Virginia Lawyers Weekly VA Lawyers Weekly
Where the victim of inappropriate touching by the defendant had allegedly told the defendant that she did not want to say the things people were making her say, the hearsay statement was not admissible under the state-of-mind exception because it contained elements of memory.
Background
Nine-year-old D.C. spent most weekends visiting her great aunt, Reina Castellon. When Castellon noticed that D.C. became upset when she had to return home on Sunday and often asked to stay another night, Castellon questioned her. D.C. told her that Selvin Colindres Mancedo, the romantic partner of her mother, Isabel Hernandez, had inappropriately touched her on a number of occasions over the past year.
However, when Castellon brought D.C. to discuss the matter with Hernandez and Mancedo, D.C. told Hernandez that the allegations were untrue. Approximately three weeks later, Castellon contacted Child Protective Services to report the incident. D.C. was interviewed by detective Alyson Russo and CPS caseworker Laurie Johnson on two occasions, and D.C. provided consistent details about the inappropriate touching incident both times.
At Mancedo’s trial, D.C. explained that she was truthful when she spoke with Russo and Johnson, but she was untruthful when she denied the incidents to Hernandez because she didn’t want to make her mother unhappy. Mancedo sought to admit a statement D.C. made to him and Hernandez that she didn’t want him to go to jail and didn’t want to say the things they were telling her to say. Mancedo sought to use that statement to demonstrate that Heranndez’s family told D.C. to lie about the inappropriate touching because they never liked Mancedo. The trial court ruled that the statement was inadmissible under the rape shield statute.
Mancedo also sought to introduce testimony that Castellon had contacted him and Hernandez and offered her silence in exchange for their trailer and money. The trial court allowed Mancedo to question Castellon about this on cross-examination but did not allow Hernandez to testify about the statement because it was extrinsic evidence of a prior inconsistent statement.
Mancedo was convicted of two counts of aggravated sexual battery and this appeal followed.
Analysis
The trial court erred by excluding D.C.’s statement under the rape shield statute because the statement did not involve D.C.’s sexual conduct or past sexual activity. Nevertheless, the exclusion of the statement can still be affirmed under the right result for the wrong reason doctrine because it is a hearsay statement that does not qualify under the state-of-mind exception to the hearsay rule.
It is well settled that the state-of-mind exception cannot apply to statements that contain elements of memory within them. In the statement at issue, D.C. told Mancedo and Hernandez, “I don’t want you to go to jail. I don’t want to say the things they’re telling me to say.” In the very moment that D.C. made this statement, however, no one was telling her to say anything. As such, the individuals she referenced must have told her these “things” previously. Because the individuals told her these “things” previously, she relied on her memory during this statement to Hernandez and Mancedo. Because there is a sense of memory implicit within this second sentence, it was not admissible under the state-of-mind exception.
The trial court also properly prevented Mancedo from testifying about Castellon’s alleged offer to stay silent in exchange for money and Mancedo’s and Hernandez’s trailer. Although a party may impeach a witness by cross-examining the witness about a prior inconsistent statement, the party may not introduce extrinsic evidence that the statement was made unless the inconsistent statement is material to the case.
Here, the only relevance of Castellon’s statement is that it may cast doubt on her testimony by demonstrating her motive to fabricate. If Castellon did not testify, however, the statement would not be relevant because it does not make it more or less likely that Mancedo inappropriately touched D.C. As such, the statement was not material to the case.
While Mancedo claims the testimony is material because it is evidence of Castellon’s bias against him, Mancedo never raised this issue to the trial court. Rather, he relied exclusively on the fact that the statement was a prior inconsistent statement. As Mancedo never alerted the trial court that it should consider bias as a basis for admitting the statement, he has waived his right to raise this argument on appeal.
Affirmed.
Mancedo v. Commonwealth of Virginia, Record No. 1926-18-4, May 14, 2019. CAV (Huff), from Fairfax Cir. Ct. (Mann). Jessica Newton for Appellant; Brittany A. Dunn-Pirio for Appellee. VLW 019-7-091. 11 pp. Unpublished.
