{"id":7319,"date":"2008-01-03T01:00:00","date_gmt":"2008-01-03T06:00:00","guid":{"rendered":"https:\/\/valawyersweekly.com\/fulltext-opinions\/2008\/01\/03\/terry-v-commonwealth-of-virginia\/"},"modified":"2008-01-03T01:00:00","modified_gmt":"2008-01-03T06:00:00","slug":"terry-v-commonwealth-of-virginia","status":"publish","type":"post","link":"https:\/\/valawyersweekly.com\/fulltext-opinions\/2008\/01\/03\/terry-v-commonwealth-of-virginia\/","title":{"rendered":"TERRY v. COMMONWEALTH OF VIRGINIA"},"content":{"rendered":"

<\/font><\/p>\n

<\/font><\/font><\/a><\/p>\n

<\/font><\/p>\n

\n

TERRY v. COMMONWEALTH OF
\nVIRGINIA<\/strong><\/font><\/p>\n

\n

May 6, 1997<\/font>
\nRecord No. 2608-95-2 <\/font><\/p>\n

TYRONE TERRY<\/font><\/p>\n

v.<\/font><\/p>\n

COMMONWEALTH OF VIRGINIA<\/font><\/p>\n

Donald W. Lemons, Judge<\/font>
\nPresent: Judges Coleman, Elder and Fitzpatrick
\nArgued at Richmond, Virginia<\/font><\/p>\n

OPINION BY JUDGE SAM W. COLEMAN III <\/font>
\nFROM THE CIRCUIT COURT OF THE CITY OF RICHMOND<\/font><\/p>\n

Cullen D. Seltzer, Assistant Public Defender
\n(David J. Johnson, Public Defender, on briefs), for appellant.
\n<\/font><\/p>\n

Margaret Ann B. Walker, Assistant Attorney
\nGeneral (James S. Gilmore, III, Attorney General, on brief), for
\nappellee.
\n<\/font><\/p>\n

\n

The defendant, Tyrone Terry, was convicted in a
\njury trial for raping a minor child in violation of Code<\/font><\/p>\n

?18.2-61. On appeal, he contends that the
\nvictim’s complaint of rape to her mother, made ten months after
\nthe alleged rape, was not sufficiently recent and reliable to
\nhave been admissible into evidence under Code ?19.2-268.2. <\/font><\/p>\n

Finding no error, we affirm the defendant’s
\nconviction.<\/font><\/p>\n

BACKGROUND<\/u><\/font><\/p>\n

On appeal, we review the evidence
\nand all reasonable inferences fairly deducible therefrom in the
\nlight most favorable to the Commonwealth. Higginbotham v.
\nCommonwealth<\/u>, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
\nThe evidence proved that at the time of the offense the victim
\n(N.F.) was twelve years old. One evening during April 1994,
\nN.F.’s mother, a private duty nurse, had to stay overnight at a
\npatient’s home. The mother asked the defendant, a close friend,
\nto house-sit for her. The defendant and N.F. were alone in the
\nhouse that evening. Around 3:00 a.m., the defendant entered
\nN.F.’s bedroom and raped her. <\/font><\/p>\n

A few months after the rape, N.F.
\ntold her friend "Huck" that the defendant had raped
\nher. She did so after "Huck" told her about his niece
\nhaving been raped. He encouraged N.F. to tell her mother, but she
\nfeared her mother would not believe her. N.F. testified that she
\nalso felt partially responsible for the rape because she had
\nasked her mother if she could stay home that night. N.F. further
\ntestified that she did not tell her father because she feared he
\nwould become angry, injure the defendant, and end up in jail.
\nSometime after N.F. told "Huck" about the rape, she
\ntold her friend, Latisha. While discussing the rape with these
\ntwo friends, "Huck" threatened to tell N.F.’s mother if
\nshe did not. N.F. telephoned her mother, met her at home, and
\ntold her about the rape. The mother immediately called the
\npolice. <\/font><\/p>\n

Over defense counsel’s objection,
\nthe mother testified that N.F. called her on February 10, 1995,
\nand said she wanted to talk. N.F. then reported that the
\ndefendant had raped her in April 1994. The trial judge ruled that
\nthe ten month delay in reporting the rape had been sufficiently
\nexplained and ruled the evidence admissible. The trial judge then
\ninstructed the jury:<\/font><\/p>\n

\n

The evidence of a recent
\n complaint of sexual assault such as this is admissible and
\n you may consider it, but only for the purpose of
\n corroborating the other evidence in the case . . . . It is
\n not independent evidence of the act itself. It is only
\n corroborative in nature and that is the only basis upon which
\n you can receive it. The question of its timeliness and how
\n much time took place to make the report, is a matter for you
\n to consider as you weigh the evidence and the credibility of
\n the evidence.<\/font><\/p>\n<\/blockquote>\n

ANALYSIS<\/u><\/font><\/p>\n

The "recent complaint"
\nexception to the hearsay rule is derived from the early English
\ncommon law rule requiring the victim of a violent crime to raise
\na "hue and cry" in the neighborhood so the neighbors
\nwould come to the victim’s aid, engage in a search for the
\nattacker, and dispel the inference that the victim may have lied
\nabout having been attacked. See<\/u> Allan R. Pearlman, Case
\nNote, Fresh-Complaint Rule<\/u>, 23 Rutgers L.J. 189, 193
\n(1991). Under the "hue and cry" rule, which is now
\ndiscredited, a prosecutrix in a rape case was required to prove a
\ntimely complaint of rape in order to prove that a rape had
\noccurred. See<\/u> Woodard v. Commonwealth<\/u>, 19 Va. App.
\n24, 27, 448 S.E.2d 328, 330 (1994); Michael H. Graham, The Cry
\nof Rape: The Prompt Complaint Doctrine and the Federal Rules of
\nEvidence<\/u>, 19 Willamette L. Rev. 489, 491 (1983).<\/font><\/p>\n

Since the decline of the "hue
\nand cry" rule, three theories have emerged under which
\nevidence of a recent complaint of rape may be admissible. First,
\nthe complaint may be admitted to corroborate the complaining
\nwitness’ testimony and to rebut the inference of recent
\nfabrication that is raised by a victim’s silence. See<\/u> 4
\nWigmore, Evidence<\/u> ?1135(A), at 298-99 (Chadbourne rev.
\n1972); Graham, supra<\/u>, at 492-94. Under this approach, the
\nevidence is corroborative; thus, the substance or details of the
\ncomplaint are not admissible and the complaining witness is
\nrequired to testify before the complaint is admissible. See<\/u>
\nWigmore, supra<\/u>, ?1136, at 307; Graham, supra<\/u>, at
\n493. The second theory admits evidence of a recent complaint as a
\nprior consistent statement of the complainant to rebut a charge
\nof recent fabrication, improper influence or motive. See<\/u>
\nWigmore, supra<\/u>, ?1137, at 311; Graham, supra<\/u>, at
\n494-95. Under this approach, the complainant must testify;
\nhowever, the details of the complaint are admissible as long as
\nthe testimony is "rebutting in nature." Wigmore, supra<\/u>,
\n?138, at 311; Graham, supra<\/u>, at 494. The third theory
\nadmits evidence of a recent complaint under the "excited
\nutterance" or under the res<\/u> gestae<\/u> exception
\nto the hearsay rule. The details of the statement are admissible
\nand the complainant need not testify, but the complaint must have
\nbeen made immediately after or contemporaneous with the event,
\nmeeting the requirements for an excited utterance. Wigmore, supra<\/u>,
\n?39, at 313-14; Graham, supra<\/u>, at 495-500.<\/font><\/p>\n

Virginia has traditionally
\nfollowed the first theory, admitting evidence of recent
\ncomplaints of rape as corroborative evidence. See<\/u> Fisher
\nv. Commonwealth<\/u>, 228 Va. 296, 300, 321 S.E.2d 202, 204
\n(1984); Cartera v. Commonwealth<\/u>, 219 Va. 516, 518, 248
\nS.E.2d 784, 786 (1978) ("Only the fact that the complaint
\nwas made . . . is admissible; neither the details of the alleged
\noffense nor a description of the alleged assailant, as reported
\nby the victim, may be admitted."); Herron v. Commonwealth<\/u>,
\n208 Va. 326, 330, 157 S.E.2d 195, 198 (1967). Thus, under
\nVirginia’s common law "recent complaint" rule, evidence
\nof a prompt complaint of rape is admissible to corroborate the
\ncomplaining witness’ testimony regarding the occurrence of the
\nrape. See<\/u> McManus v. Commonwealth<\/u>, 16 Va. App. 310,
\n312, 429 S.E.2d 475, 476 (1993). <\/font><\/p>\n

Code ?19.268.2,enacted in 1993,
\nembodies the common law rule and states in pertinent part,
\n"in any prosecution for criminal sexual assault . . . the
\nfact that the person injured made complaint of the offense
\nrecently after commission of the offense is admissible, not as
\nindependent evidence of the offense, but for the purpose of
\ncorroborating the testimony of the complaining witness." The
\nstatute codifies Virginia’s common law "recent
\ncomplaint" hearsay exception, see<\/u> Report of The
\nCommission on The Reduction of Sexual Assault Victimization in
\nVirginia<\/u>, Sen. Doc. No. 31, at 3 (1993), and extends the
\ncommon law rule to crimes for which the rule did not previously
\napply, such as sodomy, aggravated sexual battery, fornication,
\nand indecent liberties with children. See<\/u> 2 Charles E.
\nFriend, The Law of Evidence in Virginia<\/u> ?18-29(4th ed.
\n1993); see also<\/u> Pepoon v. Commonwealth<\/u>, 192 Va.
\n804, 811, 66 S.E.2d 854, 858 (1951) (holding that the
\n"recent complaint" rule applies only to rape cases, not
\nsodomy cases).<\/font><\/p>\n

The dispositive question in this
\ncase is how recent or timely must a complaint of rape be in order
\nto be admissible. Originally, Virginia courts required the
\ncomplaint to be almost immediate in order to be admissible. <\/font><\/p>\n

\n

Such a victim must at once<\/u>
\n make complaint, or she will be suspected of consent. The
\n instincts of human nature, revolting at the unnatural and
\n heinous crime, compels [sic] the victim to cry out and
\n denounce its foul perpetrator; and such complaint, made under
\n the smart and indignation of such a cruel injury, has been
\n received by the courts as evidence. But even in such cases
\n the evidence is confined to the new complaint, and no
\n detailed statement of the transaction is permitted to go in
\n evidence.<\/font><\/p>\n<\/blockquote>\n

Haynes v. Commonwealth<\/u>, 69
\nVa. (28 Gratt.) 942, 947 (1877). In a 1951 sodomy case, the
\nVirginia Supreme Court said that,<\/font><\/p>\n

\n

[e]ven if the rule admitting
\n evidence of a recent complaint in rape cases were extended to
\n all sex offenses, including sodomy . . . it must first be
\n established that the testimony which is sought to be
\n introduced as a complaint was in fact a recent complaint and
\n conforms to the rules of evidence controlling the admission
\n of such testimony.<\/font><\/p>\n<\/blockquote>\n

Pepoon<\/u>, 192 Va. at 811, 66
\nS.E.2d at 858. In Herron v. Commonwealth<\/u>, the prosecutrix
\nreported the rape two days after it occurred. 208 Va. at 330, 157
\nS.E.2d at 198. The Supreme Court reiterated that a
\n"complaint should be made soon after the offense
\noccurred"; however, on the facts of the case, the court held
\nthat the prosecutrix’s delay of two days went to the weight to be
\ngiven to the complaint, not its admissibility. Id.<\/u><\/font><\/p>\n

In relaxing the requirement that a
\ncomplaint of rape must be immediate in order to be admissible,
\nthe Supreme Court has recognized that good reason may exist for a
\nvictim to delay reporting a rape. In Willis & Bell v.
\nCommonwealth<\/u>, 218 Va. 560, 563, 238 S.E.2d 811, 813 (1977),
\nthe Court stated that "[t]he failure to report an alleged
\nrape by force and violence for an unreasonable period after the
\nincident occurred casts suspicion and doubt on the truthfulness
\nof the story of a prosecutrix unless there is a credible
\nexplanation given for such delay." See also<\/u> Broaddus
\nv. Commonwealth<\/u>, 126 Va. 733, 748, 101 S.E. 321, 325-26
\n(1919) (holding that because the victim offered an explanation
\nfor delay which was not inherently incredible, the complaint was
\nadmissible and the delay was a credibility issue to be resolved
\nby the jury). <\/font><\/p>\n

This Court has held that the
\n"’only time requirement is that the complaint have been made
\nwithout a delay which is unexplained or is inconsistent with
\nthe occurrence of the offense<\/u>.’" Woodard<\/u>, 19 Va.
\nApp. at 27, 448 S.E.2d at 330 (quoting Edward W. Cleary, McCormick
\non Evidence<\/u> ‘297 (3d ed. 1984)). "The initial
\ndetermination of timeliness under the recent complaint rule is
\ncommitted to the sound discretion of the trial court, and
\nthereafter, timeliness is a matter for the trier of fact to
\nconsider in weighing the evidence." Id.<\/u> In Woodard<\/u>,
\nthe victim was thirteen years old and was raped by her mother’s
\ncousin. Several months after the rape, the victim told her
\nfriend, who was also a rape victim, what had happened. She also
\ntold her aunt one month after telling her friend. The Court held
\nthat the delay was reasonably "explained by and completely
\nconsistent with the all too common circumstances surrounding
\nsexual assault on minors — fear of disbelief by others and
\nthreat of further harm from the assailant." Id.<\/u> at
\n28, 448 S.E.2d at 330. <\/font><\/p>\n

In Lindsey v. Commonwealth<\/u>,
\n22 Va. App. 11, 467 S.E.2d 824 (1996), this Court upheld the
\nadmission of a complaint made two years after the rape and held
\nthat "while the lapse of time between the alleged event and
\nthe report is certainly an issue, it is a question of weight
\nrather than of admissibility." Id.<\/u> at 16, 467 S.E.2d
\nat 827. Quoting Wigmore on Evidence, the Court in Lindsey<\/u>
\nsaid that when the evidence of a complaint is offered to
\n"’negative the supposed silence of the woman, it is
\nperceived that the fact of complaint at any time<\/u> should be
\nreceived.’" Id.<\/u><\/font><\/p>\n

We do not read Lindsey<\/u> as
\nadopting a rule inconsistent with Woodard<\/u> and the Virginia
\ncommon law.<\/font>[1]<\/strong><\/font><\/a> Under both Woodard<\/u> and Lindsey<\/u>,
\ntimeliness is a factor in determining the admissibility of the
\ncomplaint, the weight of the evidence, and the credibility of the
\nprosecutrix. Thus, under Code ?19.2-268.2, timeliness, in
\nrelation to the reasons for the delay, must initially be decided
\nby the trial judge in order to determine whether evidence of the
\ncomplaint can be admitted. To the extent that the appellant reads
\nLindsey<\/u> to depart from the common law rule reiterated in Woodard<\/u>,
\nwe find that Code ?19.2-268.2 controls our decision, and Code
\n?19.2-268.2 is a codification of the common law as stated in Woodard<\/u>.<\/font><\/p>\n

Accordingly, we hold that the
\ntrial judge did not abuse his discretion by admitting N.F.’s
\ncomplaint to her mother. While N.F. did not tell her mother about
\nthe rape until ten months later, she explained the reasons for
\nthe delay. The trial judge found the explanation to be consistent
\nwith the nature and circumstances surrounding the offense. N.F.
\nwas afraid her mother would not believe her because the defendant
\nwas her mother’s good friend. She did not tell her father for
\nfear that he would hurt the defendant and end up in jail. She
\ntestified that she felt responsible for the rape because she
\ninsisted on staying home instead of going with her mother. Thus,
\nthe trial court did not err by holding the complaint sufficiently
\nrecent to be admissible and then permitting the jury to consider
\nthe timeliness of the complaint in determining the weight to give
\nthe evidence. <\/font><\/p>\n

For these reasons, we affirm the
\ndefendant’s conviction.<\/font><\/p>\n

Affirmed<\/u>.<\/font><\/p>\n

 <\/p>\n

FOOTNOTES: <\/font><\/p>\n

[1]<\/strong><\/font><\/a> Although Code ?19.2-268.2 had been enacted when the Lindsey<\/u>
\ncase was tried, it was not expressly relied upon by the trial
\ncourt or the Court of Appeals in its opinion as the basis for
\nadmitting the evidence of the recent complaint of rape.
\nNevertheless, because we have held that Code ?19.2-268.2
\nincorporated the common law and expanded it to other offenses,
\nthe holdings in Lindsey<\/u> and Woodard<\/u> are germane.<\/font><\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

TERRY v. COMMONWEALTH OF VIRGINIA May 6, 1997 Record No. 2608-95-2 TYRONE TERRY v. COMMONWEALTH OF VIRGINIA Donald W. Lemons, Judge Present: Judges Coleman, Elder and Fitzpatrick Argued at Richmond, Virginia OPINION BY JUDGE SAM W. COLEMAN III FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Cullen D. Seltzer, Assistant Public Defender (David J. …<\/p>\n","protected":false},"author":12,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[244],"tags":[],"class_list":["post-7319","post","type-post","status-publish","format-standard","hentry","category-virginia-court-of-appeals","always_free"],"_links":{"self":[{"href":"https:\/\/valawyersweekly.com\/fulltext-opinions\/wp-json\/wp\/v2\/posts\/7319"}],"collection":[{"href":"https:\/\/valawyersweekly.com\/fulltext-opinions\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/valawyersweekly.com\/fulltext-opinions\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/valawyersweekly.com\/fulltext-opinions\/wp-json\/wp\/v2\/users\/12"}],"replies":[{"embeddable":true,"href":"https:\/\/valawyersweekly.com\/fulltext-opinions\/wp-json\/wp\/v2\/comments?post=7319"}],"version-history":[{"count":0,"href":"https:\/\/valawyersweekly.com\/fulltext-opinions\/wp-json\/wp\/v2\/posts\/7319\/revisions"}],"wp:attachment":[{"href":"https:\/\/valawyersweekly.com\/fulltext-opinions\/wp-json\/wp\/v2\/media?parent=7319"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/valawyersweekly.com\/fulltext-opinions\/wp-json\/wp\/v2\/categories?post=7319"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/valawyersweekly.com\/fulltext-opinions\/wp-json\/wp\/v2\/tags?post=7319"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}