COURT OF APPEALS OF VIRGINIA
Present: Judges Barrow * , Coleman and Koontz Argued at Salem, Virginia
CHARLES E. WILSON
v. Record No. 1324-93-3 MEMORANDUM OPINION** BY JUDGE SAM W. COLEMAN III COMMONWEALTH OF VIRGINIA MAY 16, 1995
FROM THE CIRCUIT COURT OF THE CITY OF BRISTOL Charles B. Flannagan, II, Judge James E. Green (Elliott, Lawson & Pomrenke, on briefs), for appellant.
Michael T. Judge, Assistant Attorney General (James S. Gilmore, III, Attorney General; Virginia B. Theisen, Assistant Attorney General, on brief), for appellee.
Charles Wilson was convicted of the sexual battery of Chris
Oliver. The appellant contends that the evidence was
insufficient, as a matter of law, to support the conviction; the
trial court erred by refusing to make available discovery
documents requested in a subpoena duces tecum by the defendant; and the trial court erred when it refused to enter an order
requiring the Commonwealth to respond to specific discovery
requests.
The complaining witness, Chris Oliver, resides at the "Sun
House" in Bristol, Virginia, a residence for people suffering * Judge Bernard G. Barrow participated in the hearing and decision of this case and joined in the opinion prior to his death. ** Pursuant to Code § 17-116.010 this opinion is not designated for publication. from mental retardation or mental deficiencies. One evening,
Chris went to his 8:30 p.m. karate class. He finished the class,
left the building at 9:30 p.m., and began walking to his
residence.
On his way home, two men, whom Chris did not know, called to
him. One man, who was later identified as the appellant, Charles
Wilson, approached Chris and asked him for money and "a light"
for a cigarette. When Chris said he had neither, Wilson asked
Chris to buy some beer. Chris testified that he was nervous and scared and went with
Wilson to buy beer. At a nearby convenience store, Chris
purchased the beer while the appellant waited outside. When
Chris returned with the beer, Wilson asked Chris to go with him
behind an adjacent building.
According to the statement of fact, Chris testified during
direct examination that while they were behind the building, the
appellant touched him on the "genitals." Chris stated that he
then pushed Wilson's hand away and told Wilson that he did not
like men. On cross-examination, Chris was asked to explain what
he meant by his testimony. Chris explained that Wilson "tried to
put his hand down" Chris's pants, and that when Wilson
"attempted" to do so, Chris pushed his hand away and told Wilson
not to do that. He further testified that "that was the limit of
the touching made on [Chris] by [Wilson]."
Wilson contends that the evidence is insufficient as a
-2- matter of law to sustain the conviction for sexual battery. To
commit sexual battery, the offender must have "sexually abuse[d]
the complaining witness, by force, threat or intimidation, or
through the use of the complaining witness's mental incapacity or
physical helplessness." Code § 18.2-67.4. Sexual abuse is
defined as "an act committed with the intent to sexually molest,
arouse or gratify any person, where: (a) the accused
intentionally touches the complaining witness's intimate parts or
clothing covering such intimate parts." Code § 18.2-67.10(6). In order to prove sexual abuse as an element of
Code § 18.2-67.4, an offender must either touch the complaining
witness's intimate parts or touch the clothing covering the
intimate parts. Based upon the statement of fact, the evidence
fails to prove that the appellant either touched Chris's genitals
or the clothing which covered Chris's genitals. This is not a
situation where the fact finder can determine what weight or
credibility should be given to conflicting testimony. Although
Chris, who is mentally retarded, testified that the appellant
touched his "genitals," when asked on cross-examination what he
meant by the statement, he explained that Wilson "tried" to put
his hands down his pants and that when Wilson "attempted" to do
so, Chris pushed his hand away and that these actions were the
"limit of the touching." Viewed in the light most favorable to
the Commonwealth, Chris's explanation disavows that Wilson
touched Chris's genitals and is insufficient as a matter of law
-3- to prove beyond a reasonable doubt the statutory element of
sexual abuse. See Johnson v. Commonwealth, 5 Va. App. 529,
534-35, 365 S.E.2d 237, 240 (1988). At most, the evidence proves
attempted sexual battery. Accordingly, we reverse and remand the
case for such further action as the Commonwealth may deem
appropriate.
Because the other two issues raised on appeal will
necessarily arise on remand, we address them. Pursuant to
Rule 3A:12, the appellant requested that the trial court issue a
subpoena duces tecum for the complaining witness's personal and medical records at Sun House. The court ordered that the records
be produced, the trial judge examined them in camera, and
disclosed one document to the appellant on the basis it contained
discoverable evidence. The appellant now complains that the
court's in camera review had the effect of "substantially
quash[ing]" the subpoena duces tecum and, therefore, denied the
appellant his constitutional right to call for evidence in his
favor.
Article I, § 8 of the Virginia Constitution provides that an
accused has a right "to call for evidence in his favor." To
foster this right, Rule 3A:12 provides that a criminal defendant
may apply for a subpoena duces tecum to obtain documents in the possession of third parties. See Gibbs v. Commonwealth, 16 Va.
App. 697, 432 S.E.2d 514 (1993).
On appeal, in order to establish that a trial court's
-4- failure to enforce discovery is reversible error, an appellant
must demonstrate that the information sought was material to the
case. See Coy v. Commonwealth, 237 Va. 324, 328, 315 S.E.2d 228,
230 (1984). If documents are material to the charged offense,
the accused has a right to examine them. Gibbs, 16 Va. App. at
699, 432 S.E.2d at 515. In order for a failure to order
discovery to justify reversal of a judgment, a "reasonable
probability [must exist] that, had the evidence been disclosed to
the defense, the result of the proceeding would have been
different." Patterson v. Commonwealth, 3 Va. App. 1, 8, 348
S.E.2d 285, 289 (1987) (quoting United States v. Bagley, 473 U.S.
667, 682 (1985)). Thus, while we are not considering whether the
undisclosed evidence is material for purposes of reversible
error, we consider for purposes of remand whether undisclosed
evidence is relevant and material in the traditional sense.
Evidence is relevant if it has any tendency, however slight,
to prove a material fact or element in the case. Jenkins v. Winchester Dep't of Social Services, 12 Va. App. 1178, 1186, 409
S.E.2d 16, 21 (1991). The credibility, bias, or prejudice of the
complaining witness is a material fact in a criminal prosecution.
See Burrows v. Commonwealth, 17 Va. App. 469, 472, 438 S.E.2d
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COURT OF APPEALS OF VIRGINIA
Present: Judges Barrow * , Coleman and Koontz Argued at Salem, Virginia
CHARLES E. WILSON
v. Record No. 1324-93-3 MEMORANDUM OPINION** BY JUDGE SAM W. COLEMAN III COMMONWEALTH OF VIRGINIA MAY 16, 1995
FROM THE CIRCUIT COURT OF THE CITY OF BRISTOL Charles B. Flannagan, II, Judge James E. Green (Elliott, Lawson & Pomrenke, on briefs), for appellant.
Michael T. Judge, Assistant Attorney General (James S. Gilmore, III, Attorney General; Virginia B. Theisen, Assistant Attorney General, on brief), for appellee.
Charles Wilson was convicted of the sexual battery of Chris
Oliver. The appellant contends that the evidence was
insufficient, as a matter of law, to support the conviction; the
trial court erred by refusing to make available discovery
documents requested in a subpoena duces tecum by the defendant; and the trial court erred when it refused to enter an order
requiring the Commonwealth to respond to specific discovery
requests.
The complaining witness, Chris Oliver, resides at the "Sun
House" in Bristol, Virginia, a residence for people suffering * Judge Bernard G. Barrow participated in the hearing and decision of this case and joined in the opinion prior to his death. ** Pursuant to Code § 17-116.010 this opinion is not designated for publication. from mental retardation or mental deficiencies. One evening,
Chris went to his 8:30 p.m. karate class. He finished the class,
left the building at 9:30 p.m., and began walking to his
residence.
On his way home, two men, whom Chris did not know, called to
him. One man, who was later identified as the appellant, Charles
Wilson, approached Chris and asked him for money and "a light"
for a cigarette. When Chris said he had neither, Wilson asked
Chris to buy some beer. Chris testified that he was nervous and scared and went with
Wilson to buy beer. At a nearby convenience store, Chris
purchased the beer while the appellant waited outside. When
Chris returned with the beer, Wilson asked Chris to go with him
behind an adjacent building.
According to the statement of fact, Chris testified during
direct examination that while they were behind the building, the
appellant touched him on the "genitals." Chris stated that he
then pushed Wilson's hand away and told Wilson that he did not
like men. On cross-examination, Chris was asked to explain what
he meant by his testimony. Chris explained that Wilson "tried to
put his hand down" Chris's pants, and that when Wilson
"attempted" to do so, Chris pushed his hand away and told Wilson
not to do that. He further testified that "that was the limit of
the touching made on [Chris] by [Wilson]."
Wilson contends that the evidence is insufficient as a
-2- matter of law to sustain the conviction for sexual battery. To
commit sexual battery, the offender must have "sexually abuse[d]
the complaining witness, by force, threat or intimidation, or
through the use of the complaining witness's mental incapacity or
physical helplessness." Code § 18.2-67.4. Sexual abuse is
defined as "an act committed with the intent to sexually molest,
arouse or gratify any person, where: (a) the accused
intentionally touches the complaining witness's intimate parts or
clothing covering such intimate parts." Code § 18.2-67.10(6). In order to prove sexual abuse as an element of
Code § 18.2-67.4, an offender must either touch the complaining
witness's intimate parts or touch the clothing covering the
intimate parts. Based upon the statement of fact, the evidence
fails to prove that the appellant either touched Chris's genitals
or the clothing which covered Chris's genitals. This is not a
situation where the fact finder can determine what weight or
credibility should be given to conflicting testimony. Although
Chris, who is mentally retarded, testified that the appellant
touched his "genitals," when asked on cross-examination what he
meant by the statement, he explained that Wilson "tried" to put
his hands down his pants and that when Wilson "attempted" to do
so, Chris pushed his hand away and that these actions were the
"limit of the touching." Viewed in the light most favorable to
the Commonwealth, Chris's explanation disavows that Wilson
touched Chris's genitals and is insufficient as a matter of law
-3- to prove beyond a reasonable doubt the statutory element of
sexual abuse. See Johnson v. Commonwealth, 5 Va. App. 529,
534-35, 365 S.E.2d 237, 240 (1988). At most, the evidence proves
attempted sexual battery. Accordingly, we reverse and remand the
case for such further action as the Commonwealth may deem
appropriate.
Because the other two issues raised on appeal will
necessarily arise on remand, we address them. Pursuant to
Rule 3A:12, the appellant requested that the trial court issue a
subpoena duces tecum for the complaining witness's personal and medical records at Sun House. The court ordered that the records
be produced, the trial judge examined them in camera, and
disclosed one document to the appellant on the basis it contained
discoverable evidence. The appellant now complains that the
court's in camera review had the effect of "substantially
quash[ing]" the subpoena duces tecum and, therefore, denied the
appellant his constitutional right to call for evidence in his
favor.
Article I, § 8 of the Virginia Constitution provides that an
accused has a right "to call for evidence in his favor." To
foster this right, Rule 3A:12 provides that a criminal defendant
may apply for a subpoena duces tecum to obtain documents in the possession of third parties. See Gibbs v. Commonwealth, 16 Va.
App. 697, 432 S.E.2d 514 (1993).
On appeal, in order to establish that a trial court's
-4- failure to enforce discovery is reversible error, an appellant
must demonstrate that the information sought was material to the
case. See Coy v. Commonwealth, 237 Va. 324, 328, 315 S.E.2d 228,
230 (1984). If documents are material to the charged offense,
the accused has a right to examine them. Gibbs, 16 Va. App. at
699, 432 S.E.2d at 515. In order for a failure to order
discovery to justify reversal of a judgment, a "reasonable
probability [must exist] that, had the evidence been disclosed to
the defense, the result of the proceeding would have been
different." Patterson v. Commonwealth, 3 Va. App. 1, 8, 348
S.E.2d 285, 289 (1987) (quoting United States v. Bagley, 473 U.S.
667, 682 (1985)). Thus, while we are not considering whether the
undisclosed evidence is material for purposes of reversible
error, we consider for purposes of remand whether undisclosed
evidence is relevant and material in the traditional sense.
Evidence is relevant if it has any tendency, however slight,
to prove a material fact or element in the case. Jenkins v. Winchester Dep't of Social Services, 12 Va. App. 1178, 1186, 409
S.E.2d 16, 21 (1991). The credibility, bias, or prejudice of the
complaining witness is a material fact in a criminal prosecution.
See Burrows v. Commonwealth, 17 Va. App. 469, 472, 438 S.E.2d
300, 304 (1993). Thus, a fact which tends to prove that the
complaining witness is not credible or is biased or prejudiced is
relevant and discoverable, unless it is privileged and not
discoverable for other reasons. Clinebell v. Commonwealth, 235
-5- Va. 319, 368 S.E.2d 263 (1988).
Upon our review of the records which the trial court
considered in camera, we find that certain of the documents are
relevant and material to the charged offense. The records
contained a written evaluation of Chris performed
October 17, 1989, which reported that he had produced drawings
which, in the evaluator's opinion, showed that Chris had
"possible ambivalent sexual fantasies," and manifested some
sexual frustration, and heard voices telling him to "do bad
things" like have sex. The report also states that while at the
group home, Chris had displayed inappropriate sexual behavior.
These portions of that document relate to issues that are
relevant to the credibility and believability of the complaining
witness. Accordingly, upon remand, in the event of a retrial,
the relevant portions of this document shall be provided to the
defendant. By so holding, we do not decide that the documents
are admissible, nor do we consider whether they may be exempt
from discovery for other reasons. We only determine that
facially, the document contains relevant evidence that appears to
be discoverable. As to the appellant's claim that the trial court erred when
it declined to enter his proposed specific detailed discovery
order and instead ordered discovery pursuant to Brady v.
Maryland, 373 U.S. 83 (1963), and Rule 4:9, we find no error in
the trial court's discretionary ruling. Although specificity in
-6- a discovery order is preferred and suggested, see Hackman v.
Commonwealth, 220 Va. 710, 713, 261 S.E.2d 555, 557-58 (1980), a
trial judge has wide latitude in fashioning a discovery order
depending upon the nature of the case and of the need for
discovery. The trial court's broad order in no way limited the
materials which the appellant sought. The discovery order was at
least as broad to require the production of all Brady material,
but it also included the production of evidence included by
Rule 3A:11, a rule designed to be used in felony trials. The appellant has made no showing of prejudice by the
judge's refusal to enter the specific order, nor has the
appellant shown that the Commonwealth did not comply with the
order of the court. See Ramdass v. Commonwealth, 246 Va. 413,
420, 437 S.E.2d 566, 570 (1993) (stating that nothing in the
record indicates that the Commonwealth's attorney has withheld
exculpatory evidence). We, therefore, find no error in this
aspect of the trial judge's order. Reversed and remanded.
-7-