‘Transcript’ precluded for impeachment purposes

The trial court correctly prevented appellant from using an unauthenticated document to impeach a witness with a prior inconsistent statement.

Further, in this case where appellant was convicted of raping his wife, there was sufficient evidence to convict despite appellant’s attack of his wife’s credibility.

‘Transcript’

“Before trial, defense counsel had an employee transcribe an audio recording of C.P.’s [appellant’s wife’s] testimony from the preliminary hearing. When C.P. testified on cross-examination that she did not recall making certain statements at the preliminary hearing, defense counsel confronted her with his ‘transcript’ in an apparent attempt to impeach her using a prior inconsistent statement. …

“The Commonwealth objected, arguing that defense counsel could not use the unauthenticated ‘transcript’ to impeach C.P. and that C.P. was incapable of authenticating it. Defense counsel countered that although a court reporter had not prepared the document, a ‘member of [his] staff’ had done so and ‘certified’ its accuracy.

“The trial court found that defense counsel was ‘attempting to authenticate a document through a witness who is manifestly incapable’ of doing so.

“Accordingly, the trial court ruled that defense counsel could not use the unauthenticated document to impeach the witness by admission of a prior inconsistent statement. Defense counsel then proceeded to use the document to refresh the recollection of witnesses.”

Appellant “Petrovics contends that the trial court erroneously ruled that he could not use a ‘transcript’ to impeach C.P. or Deputy Walker at trial. He asserts that the trial court incorrectly ruled that ‘only a court reporter could produce a transcript it would accept.’

“Citing Virginia Rule of Evidence 2:903 and Code § 47.1-2, Petrovics argues that the transcript he produced was ‘self-authenticating.’ Petrovics is wrong. …

“The record establishes that Petrovics failed to authenticate the ‘transcript’ as required for impeachment. The transcript had not been prepared by a court reporter and thus was not ‘self-authenticating’ under Code § 8.01-420.3. …

“Further, Petrovics did not call ‘another witness to prove the first witness had testified as reported in the transcript.’ … Specifically, he did not call a witness to testify regarding the document’s authenticity as a true and accurate transcription of C.P.’s testimony at the preliminary hearing.

“Although Petrovics questioned C.P. about the document, C.P. had no direct knowledge of its preparation and could not otherwise recall making a prior inconsistent statement.

“Accordingly, the trial court correctly concluded that C.P. was ‘manifestly incapable’ of authenticating the transcript and properly ruled it inadmissible to prove that she had previously testified inconsistently.”

Credibility

“Petrovics … contends that the evidence was insufficient to support his convictions for rape and domestic assault and battery, third offense. He does not dispute that C.P.’s version of events, if believed, would prove the elements of each offense.

“Rather, Petrovics contends that C.P.’s testimony was inherently incredible as a matter of law and that her description of the assault was ‘demonstrably impossible based upon the physical facts.’

“In addition, he argues that the victim’s intoxication, fear of arrest, and inconsistencies in her accounts demonstrate that she fabricated the allegations against him. We disagree. …

“In this case, Petrovics points to nothing that renders C.P.’s testimony inherently incredible as a matter of law. After weighing her inconsistent statements and potential motive to lie against the balance of the evidence, the trial court credited her testimony.

“Indeed, contrary to Petrovic’s assertion on brief, the physical evidence corroborated rather than detracted from C.P.’s testimony. … C.P. had abrasions on her left forearm and wrist and wounds on her right forearm that were consistent with Petrovics grabbing her arms during the assault.

“Moreover, C.P.’s fossa navicularis was injured, and Petrovic’s DNA was inside her vagina, consistent with aggressive sexual contact. Although C.P. had no marks on her neck, the forensic nurse whom Petrovics called as a witness testified that even in severe cases it is common for victims to have no apparent signs of strangulation. …

“In addition, C.P.’s description of the incident to Scott [a forensic nurse who interviewed C.P. at the hospital] was consistent with her trial testimony. …

“At the hospital, C.P. reported that Petrovics had said he was entitled to sex and that he forcibly raped her; afterward, he pinned her arms above her head, strangled her, and threatened to kill her to avoid imprisonment.

“She admitted that she had kicked Petrovics while resisting the attack. That Deputy Stocking observed a ‘knuckle mark’ on Petrovic’s head that conflicted with C.P.’s denial that she had struck him does not render her testimony inherently incredible. …

“Because C.P.’s testimony was not inherently incredible, the trial court was entitled to rely on it to convict.”

Affirmed.

Petrovics v. Commonwealth, Record No. 0393-22-2, May 16, 2023. CAV (unpublished opinion) (Callins). From the Circuit Court of Spotsylvania County (Glover). Michelle C. F. Derrico for appellant. Jason D. Reed, Jason S. Miyares for appellee. VLW 023-7-177, 14 pp.