THE CIRCUIT COURT OF CHESTERFIELD COUNTY Edward A. Robbins,
S. Cooley for appellant.
Murphy, Senior Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Present: Chief Judge Decker, Judges Petty and Huff Argued at
GRAFF DECKER CHIEF JUDGE.
Scott Haas appeals his convictions for rape and indecent
liberties with a minor in violation of Code §§
18.2-61 and 18.2-370.1. On appeal, he challenges two of the
trial court's evidentiary rulings. First, he contends
that the court erred by excluding evidence through which he
sought to impeach the credibility of the complaining witness.
Second, he argues that the court erred by admitting evidence
of his refusal to provide a DNA sample pursuant to a search
warrant. We hold that the court's rulings on these
evidentiary matters were not error on the record before us.
Consequently, we affirm the appellant's convictions
offenses that are the subject of this appeal involved S.D., a
girl who was fifteen and sixteen years old at the time of the
crimes. The appellant was an acquaintance of S.D.'s
mother. The mother socialized with the appellant and trusted
him to "watch" her children while she was working,
attending school, or going out for the evening. S.D. reported
the offenses to her mother, who in turn notified the police.
appellant's jury trial, the Commonwealth presented
testimony from numerous witnesses including S.D. and her
mother. It also presented DNA evidence linking the appellant
to semen found on the sheets of S.D.'s mother's bed,
where S.D. said one of the crimes took place. The appellant
testified and denied S.D.'s allegations, claiming instead
that he had two sexual encounters with S.D.'s mother
rather than S.D. The jury disbelieved the appellant's
denials with regard to the rape and indecent liberties and
convicted him of those offenses. He was sentenced to eighteen
years in prison for the rape and five years for the indecent
appellant challenges the trial court's rulings on two
evidentiary issues. First, he argues that the court erred by
excluding evidence of statements that S.D. allegedly made to
her aunt, which he contends were relevant to the jury's
assessment of S.D.'s credibility. Second, the appellant
suggests that the court erred by admitting evidence that he
refused to submit to the seizure of his DNA pursuant to a
search warrant because the court told him that his compliance
was not required.
Standard of Review
courts review evidentiary rulings under an abuse of
discretion standard." Campos v. Commonwealth,
67 Va.App. 690, 702 (2017) (quoting Boone v.
Commonwealth, 63 Va.App. 383, 388 (2014)). This
"deferential standard" means that "a
'trial judge's ruling will not be reversed simply
because an appellate court disagrees.'" Id.
(quoting Thomas v. Commonwealth, 44 Va.App. 741,
753, adopted upon reh'g en banc, 45 Va.App. 811
(2005)). Only in those cases in which "reasonable
jurists could not differ" does the record support the
conclusion that an abuse of discretion has occurred.
Thomas, 44 Va.App. at 753.
party seeks to admit evidence, if "inquiry is made by
the trial judge concerning the purpose of evidence" or
the opposing party makes "a specific objection,"
"the proponent of the evidence has the burden of
establishing its admissibility." Neal v.
Commonwealth, 15 Va.App. 416, 420 (1992), cited with
approval in Creamer v. Commonwealth, 64 Va.App. 185,
194-95 (2015). "The measure of the burden of proof with
respect to factual questions underlying . . . admissibility .
. . is proof by a preponderance of the evidence."
Bloom v. Commonwealth, 262 Va. 814, 821 (2001)
(quoting Witt v. Commonwealth, 215 Va. 670, 674
(1975)). The "trial court determines these facts"
as part of its decision regarding whether to admit or exclude
proffered evidence. Id. Such subsidiary findings are
binding on appeal "unless 'plainly wrong' or
without evidence to support them." Campos, 67
Va.App. at 702 (quoting McGee v. Commonwealth, 25
Va.App. 193, 198 (1997) (en banc)). However, to the
extent that the admissibility determination involves a
question of law, the appellate court reviews that issue
de novo. Beckham v. Commonwealth, 67
Va.App. 654, 658 (2017); see John Crane, Inc. v.
Jones, 274 Va. 581, 586-87 (2007). Finally, an appellant
bears the burden of providing the appellate court with
authority and argument in support of his request for
reversal. See Bartley v. Commonwealth, 67 Va.App.
740, 744-45 (2017).
under these well-established principles that we review the
appellant's assignments of error.
Exclusion of the Complaining Witness' Alleged Prior
Statements About Lying
appellant argues that the trial court erred by excluding what
he describes as "direct evidence" of the
complainant's credibility. That evidence is a group of
alleged statements S.D. made to her aunt including that S.D.
"had lied to the police before and would lie again about
being sexually assaulted," statements that referenced
two men other than the appellant.
Relevant Factual Framework
trial, the appellant sought to offer testimony from
S.D.'s maternal aunt in an effort to impeach S.D. The
Commonwealth objected to the admission of the aunt's
testimony. In light of the objection, the judge heard her
testimony outside the presence of the jury.
aunt testified that during 2015, S.D.'s mother and two
daughters, including S.D., resided with her. In July of that
year, the aunt told the mother that she needed to "g[e]t
her own place" and gave the mother several months to do
so. According to the aunt, S.D.'s mother "got very
upset and started screaming" at her. The aunt said that
S.D. then informed her, "If you don't let my mom do
what she wants to do, then I'll just go and say that
Scott, . . . [the aunt's] boyfriend at the time, put his
hands on me [or touched me]." The aunt said that she
asked S.D. why she would "tell a lie like that to the
police" because Scott had "never been with them by
himself." The aunt further testified that S.D.
responded, "Well, I've done it before. I'll do
it again." S.D. also said "that her mom could take
her to the magistrate and that would be the end of it."
S.D.'s aunt then asked about a former boyfriend of
S.D.'s mother, about whom the aunt said S.D. had also
made a prior accusation, saying, "So you're telling
me that Chad never touched you, that you lied about
that?" The aunt testified that S.D. replied, "Well,
that's none of your business, but if I did lie[, ]
I'm getting away with it."
judge ruled that the statements were inadmissible because
they did not qualify as a prior false accusation of sexual
misconduct. The appellant objected to the exclusion.
He argued that analyzing admissibility under the prior false
statement rubric was error and repeatedly disclaimed any
effort to have the statements admitted under that theory. He
insisted that S.D.'s alleged assertions were admissible
as "affirmative evidence" of her willingness to lie
and the fact that they were made in reference to "an
alleged sexual abuse" was merely incidental. He
contended that he was entitled to have the aunt's
"credibility . . . judged by the trier of fact."
The appellant argued that in the context of the aunt's
question-"[W]hy [would you] lie like that to the
police[?]"-the "response" that "I did it
before and I will do it again" must
"mean . . . lying." He further asserted that the
judge, by refusing to admit S.D.'s statements, was
finding that the statements "couldn't possibly ...