Home / Fulltext Opinions / Virginia Court of Appeals / THOMPSON v. COMMONWEALTH OF VA



DECEMBER 1, 1998

Record No. 2550-97-4








Benjamin N. A. Kendrick,

Argued at Alexandria,

Present: Chief Judge
Fitzpatrick, Judges Willis and Annunziata

Jerry C. Lyell for

Leah A. Darron,
Assistant Attorney General (Mark L. Earley, Attorney General, on
brief), for appellee.

Upon appeal from his
conviction for forcible anal sodomy, in violation of Code Sect.
18.2-67.1, David Lee Thompson contends that the trial court
erroneously granted the Commonwealth’s motion in limine,
prohibiting him from cross-examining the victim concerning her
allegedly false statement about prior sexual acts. We find no
error and affirm the judgment of the trial court.


At the time of the
incident on trial, the victim was thirteen years old. She and her
two younger siblings stayed at their grandmother’s house while
their mother was at work. Thompson, the victim’s uncle, lived
with the grandmother and was often home when the children were
there. On June 29, 1996, the victim called her mother at work and
complained that Thompson was "messing with her." The
victim’s mother called the police and left work immediately to go
to the grandmother’s house.

When the victim’s mother
arrived at the house, the police were already there. Upon being
questioned in the presence of her mother, the victim told the
police that Thompson had sodomized her anally two weeks before,
on June 14, 1996. She further stated, in the presence of her
mother, that she had never engaged in any type of sexual
intercourse before that incident. She was then taken to Fairfax
Hospital and was examined by a registered nurse who specialized
in sexual assault examinations. The nurse found on the victim’s
rectum a healed scar, signifying an injury that had occurred at
least ten days earlier. Although the victim had told the police
that she had never before been sexually active, she admitted to
the nurse that she had engaged in consensual vaginal intercourse
at least twice, with two young boys.

Thompson was charged
with forcible anal sodomy, in violation of Code Sect. 18.2-67.1.
The Commonwealth moved in limine to bar Thompson
from cross-examining the victim about the acts of consensual
sexual intercourse with the two boys and about her statements to
the police and the nurse. The trial court granted the motion in
limine. The jury found Thompson guilty of forcible anal
sodomy and fixed his sentence at seven years in prison.


Code Sect. 18.2-67.7,
the "Rape Shield Statute" provides, in pertinent part:

A. In prosecutions
[for forcible sodomy], general reputation or opinion evidence
of the complaining witness’s unchaste character or prior
sexual conduct shall not be admitted. Unless the complaining
witness voluntarily agrees otherwise, evidence of specific
instances of his or her prior sexual conduct shall be
admitted only if it is relevant and is:

1. Evidence offered
to provide an alternative explanation for physical evidence
of the offense charged which is introduced by the
prosecution, limited to evidence designed to explain the
presence of semen, pregnancy, disease, or physical injury to
the complaining witness’s intimate parts; or
. . . .

By cross-examining the
victim concerning her false statement to the police and her
subsequent admission to the nurse, Thompson would have injected
into the case evidence of the victim’s prior sexual conduct.
Thompson argues that this evidence would have provided an
alternative theory of the crime, explaining the victim’s rectal
scar. Code Sect. 18.2-67.7(A)(1). He argues that the rectal
scarring could have been caused by consensual anal intercourse
with a third party. No evidence supports that theory. The
suppressed cross-examination could not have done so. Consensual
vaginal intercourse would not have caused the scar on the
victim’s rectum. Thus, evidence of the victim’s false denial of
earlier intercourse does not fall within the exception contained
in Code Sect. 18.2-67.7(A)(1).

Evidence of the victim’s
past sexual activity would have served only to degrade her
reputation. Such evidence would have been highly prejudicial and
is specifically what the "Rape Shield Statute" was
designed to prevent. "Where . . . the only purpose
offered for introducing evidence of the victim’s prior sexual
conduct is to establish her propensity to engage in consensual
sexual acts or to impeach her general credibility, such evidence
is rendered inadmissable under [Code Sect. 18.2-67.7]." Currie
v. Commonwealth
, 10 Va. App. 204, 207-08, 391 S.E.2d 79, 81


Thompson argues that he
sought to disclose not the victim’s prior sexual conduct but
merely her false statement to the police, seeking thereby to
impeach her credibility. The suppressed evidence would have been
improper for that purpose. If Thompson wished to impeach the
victim’s credibility, the proper method was by evidence of her
general reputation for truthfulness, not by proof of a single
false statement. See Clark v. Commonwealth, 202 Va.
787, 789-90, 120 S.E.2d 270, 272 (1961).


In Clinebell v.
, 235 Va. 319, 368 S.E.2d 263 (1988), the Supreme
Court enunciated a special rule relating to impeachment in sexual
assault cases. The Court said:

[O]ne method of
impeaching a witness is by attacking that witness’ character.
Ordinarily, character is attacked by presenting testimony
that the witness’ general reputation and veracity is bad.
Generally, . . . character may not be impeached by
showing specific facts of untruthfulness or bad conduct.

In sex offense
cases, however, . . . evidence of prior false
is admissible to impeach the complaining
witness’ credibility or as substantive evidence tending to
prove that the instant offense did not occur.

Id. at 323-24,
368 S.E.2d at 265 (citations omitted) (emphasis added).

Consequently, in a
sex crime case, the complaining witness may be cross-examined
about prior false accusations, and if the witness denies
making the statement, the defense may submit proof of such

Id. at 325, 368
S.E.2d at 266 (citations omitted).

Thompson argues that the
foregoing rule authorized cross-examination of the victim
concerning her denial to the police and in the presence of her
mother that she had engaged in prior intercourse and the falsity
of that statement. We disagree.

The suppressed statement
was not an accusation. It was a personal denial, induced, no
doubt, by embarrassment and fear. In no sense could it be deemed
a false accusation. Nor could it be construed as part of a system
of false accusations, casting doubt on the victim’s accusation
against Thompson.

For the foregoing
reasons, the judgment of the trial court is affirmed.