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Present: Chief Judge Fitzpatrick, Judges Bumgardner and Frank

Argued at Salem, Virginia

Record No. 0058-03-3







DECEMBER 16, 2003


Henry A. Vanover, Judge

C. Eric Young (C. Eric Young, P.C., on brief), for appellant.

Leah A. Darron, Assistant Attorney General (Jerry W. Kilgore,

Attorney General, on brief), for appellee.

A jury convicted Richard Frederick Mott of rape, Code ?
18.2-61. He maintains the trial

court denied him the right to cross-examine the victim regarding
her sexual activity before or

after the offense.[2]
Finding no error, we affirm.

The 12-year-old victim testified the defendant raped her while
she visited her friend. The

defendant was the boyfriend of the friend’s mother. The victim
denied she had sexual

intercourse before the incident. A doctor examined her when she
reported the assault

approximately two months later. The doctor determined her hymen
was broken and diagnosed a

vaginal infection usually caused by sexual intercourse. At
trial, the doctor testified the victim

told him she was on her knees facing away from the defendant
during the rape. That testimony

conflicted with the victim’s earlier testimony that she had
been facing the defendant.

At the close of the Commonwealth’s case-in-chief, the
defendant made a motion to strike

the evidence arguing the victim was not credible. While arguing
the motion, the defendant

"ask[ed] permission to cross examine her" on the
inconsistency between her trial testimony and

the statement she made to the doctor about the direction in
which she faced. The defendant

conditioned the request on whether the trial court relied upon
the doctor’s testimony to bolster

the victim’s credibility. The trial court denied the request
and overruled the motion.

The defendant presented evidence, but did not call the victim as
a witness. At the close

of the defendant’s case, he renewed his motion to strike. Two
months after the verdict was

returned, the defendant filed a motion to vacate and grant a new
trial alleging he "was not

permitted to cross examine witnesses against him regarding
relevant, probative facts introduced

by the Commonwealth." The trial court denied the motion and
noted, "At no time . . . has any

evidence been proffered as to any prior sexual activity by the
complaining witness or any

evidence that might be admissible on behalf of the defendant
under the rape shield statute."

A motion to strike is "an attack upon the sufficiency of
the evidence presented." Charles

E. Friend, The Law of Evidence in Virginia ? 1.4(C), at 12 (6th
ed. 2003). See also Burks

Pleading and Practice ? 284 (4th ed. 1952). On a motion to
strike, the trial court is limited to

reviewing the sufficiency of the evidence. Cf. William Poole v.
Commonwealth, 211 Va. 258,

260, 176 S.E.2d 821, 823 (1970) (admissibility of evidence may
not be considered in motion to

strike). A conditional request made during an argument on a
motion to strike is not the proper

place to move to recall a Commonwealth’s witness and reopen
cross-examination of that witness.

Even if it were, the trial court did not err in denying the
request in this instance.

"[A] party has an absolute right to cross-examine his
opponent’s witness on a matter

relevant to the case, which the opponent has put in issue by
direct examination of the witness."

Friend, supra ? 3.8, at 112. The defendant fully
cross-examined the victim and the doctor after

their direct examinations. He had a copy of the doctor’s
office notes when he did cross-examine

them. While he contends he was denied the right to
cross-examine, the defendant was denied, at

most, the opportunity to recall the victim to address points not
previously recognized or

appreciated. After a witness has been subjected to
cross-examination, the trial court has

discretion to allow or disallow further questioning. Shanklin v.
Commonwealth, 222 Va. 862,

864, 284 S.E.2d 611, 612 (1981). The trial court did not abuse
its discretion by denying renewed


Though the court did not permit reopening the Commonwealth’s
case for further

cross-examination of the victim, the defendant had the
opportunity to call the victim as his own

witness. He could have requested to examine her under the rules
applicable to

cross-examination. Code ? 8.01-401; see Mastin v. Theirjung,
238 Va. 434, 440, 384 S.E.2d 86,

89 (1989) (permissible to recall witness as adverse witness
during rebuttal). The defendant

elected not to do so.

The defendant argues the inconsistency in the victim’s and
doctor’s testimony raised a

"strong inference" that the victim had engaged in
another sexual encounter. He maintains such

evidence would have provided an alternative explanation for the
victim’s injury. The defendant

concedes the rape shield law, Code ? 18.2-67.7, controlled
introduction of any evidence that the

victim had other sexual activity. As the trial court noted, the
defendant failed to proffer any

evidence of sexual acts in which the victim engaged. A proper
proffer would be an avowal or

stipulation of the "testimony expected." Whittaker v.
Commonwealth, 217 Va. 966, 969, 234

S.E.2d 79, 81 (1977).

The defendant maintains Neeley v. Commonwealth, 17 Va. App. 349,
358, 437 S.E.2d

721, 726 (1993), permitted him to offer evidence that provided
an alternative explanation of the

physical evidence reported by the doctor. Neeley held the rape
shield law did not exclude

evidence that rebutted the Commonwealth’s assertion that the
defendant was the source of a hair

found in the victim’s cervix. However, Neeley proffered
testimony that could have provided an

alternate explanation of the Commonwealth’s evidence. In this
case, the defendant made no

proffer of the expected testimony that could have rebutted the
Commonwealth’s evidence of

rape. Without a proper proffer, we do not address the argument.
O’Dell v. Commonwealth, 234

Va. App. 672, 697, 364 S.E.2d 491, 505 (1988).

For the reasons stated, we affirm the conviction.




[1]Pursuant to
Code ? 17.1-413, this opinion is not designated for publication.


[2]The defendant
also maintains he was denied the right to effective assistance of counsel.

We will not consider an argument raised for the first time on
appeal. Rule 5A:18.