David G. Lindsey v Commonwealth

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COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Annunziata and Senior Judge Hodges
Argued at Norfolk, Virginia

DAVID G. LINDSEY

Vv. Record No. 0088-95-1 OPINION BY
JUDGE ROSEMARIE ANNUNZIATA
COMMONWEALTH OF VIRGINIA MARCH 12, 1996

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Walter J. Ford, Judge

Charles E. Haden for appellant.
Robert B. Beasley, Jr., Assistant Attorney

General (James S. Gilmore, III, Attorney
General, on brief), for appellee.

The appellant, David G. Lindsey ("Lindsey"), was tried by
the court on three counts of statutory rape. The court convicted
Lindsey on one count and sentenced him to forty-five years
imprisonment, with thirty-three years suspended. On appeal,
Lindsey argues that the trial court erred in (1) admitting into
evidence a complaint of rape made approximately two years after
the alleged incident; and (2) allowing the witness to relate
details of the complaint as described by the victim. Finding no
error, we affirm the conviction.

Thirteen-year-old N.D. testified that Lindsey raped her
sometime between July and September 1991 when she was eleven
years old. Lindsey was N.D.'s basketball coach during that time.

N.D. testified that Lindsey picked her up from her house to take
her to basketball practice. She further testified that Lindsey

took her instead to his house where he engaged in sexual

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intercourse with her. 	Lindsey testified in his own defense and
denied the allegations.
N.D. remained silent about the alleged rape until she told
her friend, Latoya M., approximately two years after the alleged
offense. 	N.D. said she had been too frightened to tell her
mother about the incident.
At trial, the Commonwealth asked Latoya what N.D. had told
her about what had happened between N.D. and Lindsey. 	Lindsey
objected, stating that the question called for hearsay. 	The
court ruled that the statement was admissible as the "first
outcry" in a rape, stating, however, that it would not allow the
Commonwealth to elicit a "long dissertation." 	Latoya then
testified that the two girls were at a school carnival sometime
in the middle of the 1993 school year when N.D. told her that
Lindsey had raped her. 	On cross-examination, Latoya testified
that N.D. told her that the rape occurred at the appellant's
house. 	On redirect, Latoya testified without objection that N.D.
told her she had been at the appellant's house because he was
dropping her off after basketball practice.
N.D.'s mother first learned of the alleged rape in 1994,
upon finding a note written by her daughter describing the event.
Assigned to write on the topic of happiness or sadness, N.D.
wrote about the alleged rape. 	However, N.D. placed the writing
in her pocket instead of turning it in to her teacher. 	After
finding the note, N.D.'s mother contacted the police.

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The complaint made by a rape victim has long been considered
an expected and natural expression of the victim's feelings in
response to the offense. 	See, e.g., Haynes v. Commonwealth, 69
Va. (28 Gratt.) 942, 947 (1877). 	The complaint is a relevant
circumstance in determining the complainant's credibility, on the
theory that the failure to bring a complaint raises suspicion and
doubt about the truth of the report. 	See Willis & Bell v.
Commonwealth, 218 Va. 560, 563-64, 238 S.E.2d 811, 813 (1977); 4
Wigmore, Evidence § 1135, at 298-99 (Chadbourne rev. 1972). 	As
such, "under a rule unique to rape trials, evidence of an out-of-
court complaint by a victim is admissible, not as independent
evidence of the offense, but as corroboration." 	McManus v.
Commonwealth, 16 Va. App. 310, 312, 429 S.E.2d 475, 475-76
(1993); Cartera v. Commonwealth, 219 Va. 516, 518, 248 S.E.2d
784, 786 (1978). 	The rule applies even where "the victim's
consent is not a defense to the charge of rape." 	McManus, 16 Va.
App. at 312, 429 S.E.2d at 476. 	When offered for the purpose of
corroborating the victim's complaint, the details of the alleged
rape are not admissible. 	See, e.g., Cartera, 219 Va. at 519, 248
S.E.2d at 786.
Lindsey contends that the trial court erred in admitting the
complaint as evidence corroborating the alleged rape in this case
because the complaint was made approximately two years after the
alleged incident. 	Indeed, admission of such evidence has often
been predicated on establishing that the complaint was recent,

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reflecting the rule's historical roots in the rule of
"hue-and-cry" and its requirement for "fresh complaint."
Wigmore, supra, at 298, 301. 	Early Virginia case law described
the rule as allowing "complaint of the outrage [made] soon after
its commission." 	Pepoon v. Commonwealth, 192 Va. 804, 810, 66
S.E.2d 854, 858 (1951); see also Haynes, 69 Va. (28 Gratt.) at
947 (describing rule as requiring victim to "at once make
complaint, or . . . be suspected of consent"); Brogy v.
Commonwealth, 51 Va. (10 Gratt) 722, 725-26 (1853) (describing
rule admitting "recent complaint").
However, the rule admitting an out-of-court complaint of
rape to negative a victim's silence is an exception to
the hearsay rule which is not to be confused with the
rule permitting hearsay under the res gestae of the
event. 	See Haynes, 69 Va. (28 Gratt.) at 948. 	Under
the res gestae exception to the hearsay rule, the lapse
of time between the event and the report is critical to
the report's admission. 	See, e.g., Harris v.
Commonwealth, 8 Va. App. 424, 430, 382 S.E.2d 292, 295
(1989).1 To impose a similar requirement to admit an
1 The admissibility of an out-of-court complaint of rape
evidences a history which is "unusually complicated in principles
and confused in precedents," because three distinct general
principles govern its admission. 	Wigmore, supra, at 297-98. 	In
addition to the rule admitting a complaint to negative a victim's
silence, such evidence may be admitted as a prior consistent
statement to rehabilitate an impeached witness or as a res gestae
declaration. 	Wigmore, supra, at 311-13. 	Each of the three
principles governing admissibility differs in the foundation
required and the scope of the evidence to be admitted. 	Id. at

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out-of-court complaint as corroborative evidence
ignores the purpose of such evidence.
[I]f it be considered that the purpose of the
evidence [of an out-of-court complaint of
rape] is merely to negative the supposed
silence of the woman, it is perceived that
the fact of complaint at any time should be
received. 	After a long delay, to be sure,
the fact is of trifling weight, but it
negatives silence, nevertheless, and the
accompanying circumstances must determine how
far the delay has been successfully explained
away.
Wigmore, supra, at 302-03.
Citing Wigmore, the Virginia Supreme Court adopted this
rationale and established the modern rule. 	Herron, 208 Va. at
330, 157 S.E.2d at 198 (1967) (citing 4 Wigmore, Evidence 1135,
at 222 (3rd ed. 1940)). 	The Supreme Court held that the "delay
in making a report . . . should bear upon the weight to be given
the evidence, not its admissibility." 	Id. 	Thus, while the lapse
of time between the alleged event and the report is certainly an
issue, it is a question of weight rather than of admissibility.
"[T]he accompanying circumstances must determine how far the
delay has been successfully explained away." 	Wigmore, supra, at
(..continued)
297-314 passim. 	For example, where the complaint is offered to
negative silence, only the fact of the complaint is admissible;
neither the details of the offense or a description of the
assailant may be admitted. 	See, e.g., Cartera, 219 Va. at
518-19, 248 S.E.2d at 786; Wigmore, supra, at 306-07. 	If the
evidence is offered either to rehabilitate an impeached witness
or under the res gestae exception to hearsay, the details may be
admissible. 	Wigmore, supra, at 311-14. 	Furthermore, as noted in
the text, under the res gestae exception, the timeliness of the
report is critical to its admissibility.

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303; see also Willis & Bell, 218 Va. at 563, 238 S.E.2d at 813;
Corvin v. Commonwealth, 13 Va. App. 296, 299, 411 S.E.2d 235, 237
(1991).
In this case, testimony of the victim's complaint was
properly admitted; the issue of the two-year delay was one of
credibility properly left to the trier of fact. 	Furthermore,
contrary to Lindsey's contention, the witness did not improperly
relate the details of the offense. 	The witness testified that,
while attending a school carnival, she and the complaining
witness encountered Lindsey, whom both the victim and witness
knew, and the victim told her that Lindsey had raped her. 	The
recitation of these facts does not constitute a discussion of the
details of the rape or a description of the assailant within the
meaning of Cartera.
Testimony about where the rape occurred was elicited by the
appellant on cross-examination and, therefore, cannot be cause
for complaint. 	See Fisher v. Commonwealth, 236 Va. 403, 417, 374
S.E.2d 46, 54 (1988), cert. denied, 490 U.S. 1028 (1989). 	The
defense opened the door to this line of inquiry, entitling the
Commonwealth to make further inquiry on redirect examination.
Furthermore, the appellant failed to object to the question asked
on redirect, waiving his right to raise the issue on appeal.
Rule 5A:18; Knight v. Commonwealth, 18 Va. App. 207, 216, 443
S.E.2d 165, 170 (1994).
Accordingly, we affirm the decision of the trial court.

Affirmed.
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