Opinion
MOON, J.
Paul James Kauffmann, Jr., seeks reversal of his conviction for the aggravated sexual battery of his fourteen year-old daughter. His principal claims are (1) that his confessions were not admissible because they were involuntarily given and because they were obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966); and (2) that out-of-court statements made by his deceased daughter, and which suggested that Kauffmann had molested her, were improperly admitted into evidence.
Although we find that Kauffmann’s confessions were voluntary and were not obtained in violation of Miranda, we reverse the conviction and remand because we find that the statements made by the daughter were inadmissible hearsay. On other issues concerning jury instructions, we uphold the trial judge’s rulings that contributing to the delinquency of a minor is not a lesser included offense of aggravated sexual battery and that the facts of this case did not support the giving of an instruction for the lesser included offense of sexual battery.
On April 1, 1986, Kristi Kauffmann, age 14, threw herself in front of a train in Manassas and was killed. Many of her fellow students at Osborn Park High School witnessed the incident.
[403]*403Detective John Urban, who investigated the incident, interviewed Candy Machalske, one of the students who saw the suicide, at the scene. Machalske said that Kristi had joked about committing suicide earlier in the day and had said, immediately before she jumped in front of the train, “it’s my parents. I can’t handle it. My dad molests me in the morning before school.”
Detective Urban then went to the Kauffmann house and asked the Kauffmanns if he could go through Kristi’s belongings. He told them that it was routine for the police to view a suicide victim’s belongings, but he did not tell the Kauffmanns about Candy Machalske’s statement. At trial, Urban testified that he was searching for anything that might incriminate Kauffmann and that he was afraid the Kauffmanns would not allow him to search if he told them about Machalske’s statement.
During Urban’s search of Kristi’s room, he found a spiral notebook. Urban found one entry, dated March 10, 1986, in which Kristi had written that her father was an “incestive molesting jerk.” Urban did not show Kauffmann the notebook, but he asked Kauffmann to follow him to the police station for further questioning.
At the station, Urban confronted Kauffmann with Machalske’s statement. Kauffmann expressed concern whether anything he said would be used against him or told to his wife. Urban told him that his wife would not be told and that he would not be arrested. The father then told Urban that he had fondled his daughter. No Miranda warnings were given at that first interview.
Two days later, on April 3, 1986, the Kauffmanns went to the police station for a meeting with a social worker who was scheduled to help the Kauffmanns deal with Kristi’s death. Kauffmann was called into a room with Detective Urban and Jean Amos, a social worker. Urban and Amos both testified that Kauffmann was palpably upset, disturbed, and grieving. The daughter’s funeral was scheduled for the next morning.
Detective Urban again questioned Kauffmann about the fondling incidents. Urban again told him that his wife would not be told about his statements, but Urban did read the Miranda warnings to him. Kauffmann repeated his statement of April 1, concerning the fondling of his daughter.
[404]*404The father was indicted for aggravated sexual battery of his daughter. The trial court admitted both Candy Machalske’s testimony about what Kristi said before she jumped in front of the train and the spiral notebook diary. Both statements were admitted under the state-of-mind exception to the hearsay rule. The defendant objected to the evidence as inadmissible hearsay. The court relied upon Church v. Commonwealth, 230 Va. 208, 335 S.E.2d 823 (1985), in holding that the statements showed Kristi’s state of mind at the time the statements were made and were circumstantial evidence tending to corroborate that the father molested her.
In addition, the court allowed testimony by Bridgette Maloney that during the week of January 10, 1986, she and Kristi Kauffmann discussed the movie Fatal Vision while riding the school bus. Maloney testified that she asked Kristi, “[w]ell, wouldn’t it be awful if your father had gone in and killed your mother and you and your family?” and Kristi replied, “[m]y father molests me.” Michaelle Kalua, another Osborn Park student, was allowed to testify that two weeks before her death, Kristi Kauffmann told a joke about sexual contact between a parent and a child and then said “. . . my dad does that, too.”
The court also admitted the defendant’s statement to the police officer on April 1 and 3, 1986.
The Confessions
In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court held that when the police ask questions of a suspect in . custody without administering the prescribed warnings, the answers to the questions must be presumed compelled and the answers must be excluded at trial. Since the police did not give Kauffmann the warnings before he made his first statement, Kauffmann claims that the first statement should have been excluded at trial under Miranda. However, Miranda does not apply to the initial questioning of Kauffmann because he was not then in custody. Kauffmann had followed Detective Urban to the police station in his own car. At the station, Urban told Kauffmann that he did not have to answer any questions. He was told that he was free to leave and that he was not under arrest. In fact, he was not under restraint and he left after the interview. The Miranda warnings [405]*405are not required merely because the interview takes place at a police station or because the investigation has centered on the person being questioned. Oregon v. Mathiason, 429 U.S. 492, 495 (1977).
The police did give Kauffmann the Miranda warnings before he made his second statement, which was clearly admissible. Therefore, even if the first statement had been obtained in violation of Miranda, its admission would have been harmless error under the analysis in Oregon v. Elstad, 470 U.S. 298 (1985). In Elstad, the suspect in a burglary case was arrested at his home and questioned in a non-coercive manner by the police at the house. The police did not give the suspect Miranda warnings, but the suspect admitted participating in the burglary. Later, the police took him to the police station, gave him his Miranda warnings, and asked him to read and sign a confession.
Nevertheless, the confession, even if obtained in full compliance with Miranda, may be inadmissible if it was not voluntary. In order to assess the voluntariness of a confession, an appellate court must conduct an independent review of the circumstances surrounding the confession. Miller v. Fenton,
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Opinion
MOON, J.
Paul James Kauffmann, Jr., seeks reversal of his conviction for the aggravated sexual battery of his fourteen year-old daughter. His principal claims are (1) that his confessions were not admissible because they were involuntarily given and because they were obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966); and (2) that out-of-court statements made by his deceased daughter, and which suggested that Kauffmann had molested her, were improperly admitted into evidence.
Although we find that Kauffmann’s confessions were voluntary and were not obtained in violation of Miranda, we reverse the conviction and remand because we find that the statements made by the daughter were inadmissible hearsay. On other issues concerning jury instructions, we uphold the trial judge’s rulings that contributing to the delinquency of a minor is not a lesser included offense of aggravated sexual battery and that the facts of this case did not support the giving of an instruction for the lesser included offense of sexual battery.
On April 1, 1986, Kristi Kauffmann, age 14, threw herself in front of a train in Manassas and was killed. Many of her fellow students at Osborn Park High School witnessed the incident.
[403]*403Detective John Urban, who investigated the incident, interviewed Candy Machalske, one of the students who saw the suicide, at the scene. Machalske said that Kristi had joked about committing suicide earlier in the day and had said, immediately before she jumped in front of the train, “it’s my parents. I can’t handle it. My dad molests me in the morning before school.”
Detective Urban then went to the Kauffmann house and asked the Kauffmanns if he could go through Kristi’s belongings. He told them that it was routine for the police to view a suicide victim’s belongings, but he did not tell the Kauffmanns about Candy Machalske’s statement. At trial, Urban testified that he was searching for anything that might incriminate Kauffmann and that he was afraid the Kauffmanns would not allow him to search if he told them about Machalske’s statement.
During Urban’s search of Kristi’s room, he found a spiral notebook. Urban found one entry, dated March 10, 1986, in which Kristi had written that her father was an “incestive molesting jerk.” Urban did not show Kauffmann the notebook, but he asked Kauffmann to follow him to the police station for further questioning.
At the station, Urban confronted Kauffmann with Machalske’s statement. Kauffmann expressed concern whether anything he said would be used against him or told to his wife. Urban told him that his wife would not be told and that he would not be arrested. The father then told Urban that he had fondled his daughter. No Miranda warnings were given at that first interview.
Two days later, on April 3, 1986, the Kauffmanns went to the police station for a meeting with a social worker who was scheduled to help the Kauffmanns deal with Kristi’s death. Kauffmann was called into a room with Detective Urban and Jean Amos, a social worker. Urban and Amos both testified that Kauffmann was palpably upset, disturbed, and grieving. The daughter’s funeral was scheduled for the next morning.
Detective Urban again questioned Kauffmann about the fondling incidents. Urban again told him that his wife would not be told about his statements, but Urban did read the Miranda warnings to him. Kauffmann repeated his statement of April 1, concerning the fondling of his daughter.
[404]*404The father was indicted for aggravated sexual battery of his daughter. The trial court admitted both Candy Machalske’s testimony about what Kristi said before she jumped in front of the train and the spiral notebook diary. Both statements were admitted under the state-of-mind exception to the hearsay rule. The defendant objected to the evidence as inadmissible hearsay. The court relied upon Church v. Commonwealth, 230 Va. 208, 335 S.E.2d 823 (1985), in holding that the statements showed Kristi’s state of mind at the time the statements were made and were circumstantial evidence tending to corroborate that the father molested her.
In addition, the court allowed testimony by Bridgette Maloney that during the week of January 10, 1986, she and Kristi Kauffmann discussed the movie Fatal Vision while riding the school bus. Maloney testified that she asked Kristi, “[w]ell, wouldn’t it be awful if your father had gone in and killed your mother and you and your family?” and Kristi replied, “[m]y father molests me.” Michaelle Kalua, another Osborn Park student, was allowed to testify that two weeks before her death, Kristi Kauffmann told a joke about sexual contact between a parent and a child and then said “. . . my dad does that, too.”
The court also admitted the defendant’s statement to the police officer on April 1 and 3, 1986.
The Confessions
In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court held that when the police ask questions of a suspect in . custody without administering the prescribed warnings, the answers to the questions must be presumed compelled and the answers must be excluded at trial. Since the police did not give Kauffmann the warnings before he made his first statement, Kauffmann claims that the first statement should have been excluded at trial under Miranda. However, Miranda does not apply to the initial questioning of Kauffmann because he was not then in custody. Kauffmann had followed Detective Urban to the police station in his own car. At the station, Urban told Kauffmann that he did not have to answer any questions. He was told that he was free to leave and that he was not under arrest. In fact, he was not under restraint and he left after the interview. The Miranda warnings [405]*405are not required merely because the interview takes place at a police station or because the investigation has centered on the person being questioned. Oregon v. Mathiason, 429 U.S. 492, 495 (1977).
The police did give Kauffmann the Miranda warnings before he made his second statement, which was clearly admissible. Therefore, even if the first statement had been obtained in violation of Miranda, its admission would have been harmless error under the analysis in Oregon v. Elstad, 470 U.S. 298 (1985). In Elstad, the suspect in a burglary case was arrested at his home and questioned in a non-coercive manner by the police at the house. The police did not give the suspect Miranda warnings, but the suspect admitted participating in the burglary. Later, the police took him to the police station, gave him his Miranda warnings, and asked him to read and sign a confession.
Nevertheless, the confession, even if obtained in full compliance with Miranda, may be inadmissible if it was not voluntary. In order to assess the voluntariness of a confession, an appellate court must conduct an independent review of the circumstances surrounding the confession. Miller v. Fenton, 474 U.S. 104 (1985). In conducting its review, the court “must determine whether, in light of the totality of the circumstances, including not only the details of the interrogation, but also the characteristics of the accused, the statement was the product of an essentially free and unconstrained choice by its maker, or whether the maker’s will was overcome and his capacity for self-determination critically impaired.” Goodwin v. Commonwealth, 3 Va. App. 249, 253, 349 S.E.2d 161, 163-64 (1986) (citations omitted).
The basis for Kauffmann’s claim that his confession was not voluntary is that he “was under severe psychological strain during this time due to his daughter’s death.” The detective observed that Kauffmann was visibly upset and disturbed, and Jean Amos, the social worker who was present at the second interview, described Kauffmann as grieving and upset. Mrs. Kauffmann stated that her husband was in an awful condition. Lawrence Tracy, a long-time friend of Kauffmann, testified that Kauffmann was “hysterical” from April 1 through April 5 due to the loss of his daughter, and that Kauffmann did not seem to understand what Tracy was saying to him during their conversations at that time.
[406]*406In conducting the independent review of voluntariness, this court may be aided by the subsidiary findings of facts made by the trial judge. Goodwin, 3 Va. App. at 237, 349 S.E.2d at 166. The trial court found that Kauffmann’s statements were voluntarily given. The court did not believe that “the statements made by the officer or the investigator overbore the will of the accused nor attended the voluntariness of the statement to be made.” It is important to note that the United States Supreme Court has held that “the Fifth Amendment privilege is not concerned with ‘moral and psychological pressures to confess emanating from sources other than official coercion.’ ” Colorado v. Connelly, 479 U.S. 157 (1986). Since there was no coercion by the state in this case, Kauffmann’s confession was not involuntary so as to constitute a Fifth Amendment violation. We agree with the trial judge’s findings that both confessions were voluntary.
The Hearsay Evidence
If admitted to prove the truth of their content, the statements made at trial by Candy Machalske, Bridgette Maloney, and Michaelle Kalua were hearsay because they reported out-of-court statements. However, if the statements were admitted for a purpose other than proving the proposition that Kristi Kauffmann was molested, the statements were not hearsay. See Donahue v. Commonwealth, 225 Va. 145, 151-52, 300 S.E.2d 768, 771 (1983). The trial court admitted the statements under the state-of-mind exception to the hearsay rule because the statements showed Kristi’s state of mind when she made the statements.
It has long been settled in Virginia that the complaints of children claiming that they were sexually abused are not admissible under the state-of-mind exception to the hearsay rule. For instance, in Pepoon v. Commonwealth, 192 Va. 804, 811, 66 S.E.2d 854, 858 (1951), the Supreme Court held that the testimony of the mother of a young child who had complained to her of molestation was not admissible because the child’s statements were not made at the time of the molestation and because the complaints recalled past events. The Pepoon court relied on O’Boyle v. Commonwealth, 100 Va. 785, 40 S.E. 121 (1901), a murder case, in which the Supreme Court prohibited the admission of hearsay statements of the decedent concerning her mental and physical condition. The basis of the rule in O’Boyle was Greenleafs trea[407]*407tise on evidence, which stated:
Wherever the bodily or mental feelings of an individual are material to be proved, the usual expressions of such feelings, made at the time in question, are also original evidence. If they were the natural language of the affection, whether of body or mind, they furnish satisfactory evidence, and often the only proof of its existence. And whether they were real or feigned is for the jury to determine. . . . The rule admits, however, only exclamations of present pain, or statements of present symptoms. All statements made by the sick person relating to past transactions, however closely they may be connected with the present sickness or injury, should be rejected even if made to a physician for treatment, unless the statements are otherwise admissible, as part of the res gestae.
100 Va. at 797, 40 S.E. at 125. Further, statements describing or narrating the cause of the declarant’s mental or physical condition are not admissible under the state-of-mind exception. Insurance Co. v. Mosley, 75 U.S. (8 Wall.) 397, 405 (1869).
In this case, the statements made by Kristi to her friends and her entries in the spiral notebook both recalled past events and described the cause of her emotional distress. There was no showing, nor, do we believe, could there be, why Kristi’s state of mind was relevant to any issue in this case. Thus, the hearsay statements were improperly admitted under the state-of-mind exception to the hearsay rule.
Additionally, this hearsay evidence is not admissible as the recent complaint of a rape victim. Although the Virginia Supreme Court has held since Haynes v. Commonwealth, 69 Va. (28 Gratt.) 942 (1877), that the recent complaint of a rape victim is admissible for the purpose of corroborating her testimony, the Court has not extended the “recent complaint” rule to crimes other than rape and attempted rape. See Cartera v. Commonwealth, 219 Va. 516, 248 S.E.2d 784 (1978) (rule does not apply to sodomy charges); Moore v. Commonwealth, 222 Va. 72, 278 S.E.2d 822 (1981) (rule is unique to rape cases); Leybourne v. Commonwealth, 222 Va. 374, 282 S.E.2d 812 (1981) (rule does not apply to charges of taking indecent liberties with children). Since Kauffmann was accused of aggravated sexual battery in this [408]*408case, Kristi’s complaints may not be admitted against him.
Therefore, the court is constrained by precedent to find that the hearsay statements of Kristi Kauffmann were improperly admitted at trial. Because of the palpably prejudicial content of the statements, we cannot say that their admission was harmless error; therefore, we must reverse the conviction.
The Railroad Records
Before trial, Kauffmann sought discovery of the Norfolk Southern Corporation’s records concerning the death of Kristi Kauffmann. Norfolk Southern had conducted an investigation of the incident because Kauffmann was hit by one of Norfolk Southern’s trains. Norfolk Southern refused to disclose voluntarily its records to Kauffmann because of the railroad’s fear of a civil suit by Kauffmann and his wife. On motion of Kauffmann’s counsel, the trial court issued a subpoena duces tecum to the railroad. The railroad then filed a motion to quash the subpoena because the railroad’s records of how Kristi Kauffmann was killed were not material to the proof of whether Kauffmann molested the daughter. The trial court quashed the subpoena, and Kauffmann appeals that order.
Kauffmann did not make a colorable showing that the railroad investigation of Kristi’s death was material to his defense for aggravated sexual battery. Such a showing is required by Rule 3A: 12(b). In support of the request to subpoena the railroad report, defense counsel said “there may be something out of those records that would be [admissible at trial]. I think I have a right to peruse the records and see what may or may not be admissible.” This statement indicates that the defense merely sought to go on a “fishing expedition” of the kind strictly forbidden by Farish v. Commonwealth, 2 Va. App. 627, 346 S.E.2d 736 (1986).
The Jury Instructions
Kauffmann also asserts that the trial judge erred in refusing to give an instruction on lesser included offenses for contributing to the delinquency of a minor, Code § 18.2-371, taking indecent liberties with a child, Code § 18.2-370.1, and sexual battery, Code § 18.2-67.4.
[409]*409A lesser included offense is an offense which is composed entirely of elements that are also elements of the greater offense. Thus, in order for one crime to be a lesser included offense of another crime, every commission of the greater offense must also be a commission of the lesser offense. See Sansone v. United States, 380 U.S. 343 (1963). As an exception to the American rule barring merger of criminal offenses, a criminal defendant is entitled to jury instructions for all lesser included offenses supported by the evidence. Keeble v. United States, 412 U.S. 205 (1973); Miller v. Commonwealth, 5 Va. App. 22, 24, 359 S,E.2d 841, 842 (1987).
Based on this, we find that the trial court properly denied the instruction on sexual battery. The difference between aggravated sexual battery and sexual battery is the age of the victim. Sexual abuse of a child at least thirteen but less than fifteen years of age when against the will of the victim by force, threat or intimidation is, by definition, aggravated sexual battery. Code § 18.2-67.3. Since the evidence would not support a finding that Kristi was not between thirteen and fifteen years of age, it being uncontradicted that she was fourteen, a sexual battery instruction would have been inappropriate in this case. Miller, 5 Va. App. at 24, 359 S.E.2d at 842.
We also find that the trial court properly denied the instruction on contributing to the delinquency of a minor because it is not a lesser included offense of aggravated sexual battery; that is, not every case of aggravated sexual battery is also necessarily a case of contributing to the delinquency of a minor as defined by the statute. Contributing to the delinquency of a minor, Code § 18.2-371, requires that a person eighteen years of age or older willfully contribute to an act, omission, or condition that renders a child, delinquent, in need of services, or abused or neglected as defined in Code § 16.1-228(5). The offense of aggravated sexual battery does not require proof that the defendant was eighteen years of age or older; thus, all of the elements of Code § 18.2-371 are not included within the offense of Code § 18.2-67.3. In this case, Kauffmann’s conduct constituted contributing to the delinquency of a minor, and Kauffmann could have been charged with contributing to the delinquency of a minor. Nevertheless, the fact that in this particular case, the defendant may, in fact, have been eighteen years of age or older does not turn what is not a necessa[410]*410rily lesser included offense as a matter of law into one that is, merely as a matter of fact. See Jones v. Commonwealth, 218 Va. 18, 22, 235 S.E.2d 313, 315 (1977). We express no opinion on the issue whether, apart from the age element of Code § 18.2-371, the child victim of an aggravated sexual battery also necessarily is a child in need of services as defined by Code § 16.1-228(5).
Further, we find that, based on the record, the defense did not offer at trial an instruction on taking indecent liberties with a child. Therefore, we may not consider the propriety of that instruction on appeal. Rule 5A:18.
It is well established that the choice of offenses for which a criminal defendant will be charged is within the discretion of the Commonwealth’s Attorney, Davis v. Commonwealth, 4 Va. App. 27, 30, 353 S.E.2d 905, 907 (1987), and it is not a legally cognizable argument for Kauffmann to complain that he was tried for the crime of aggravated sexual battery rather than the different offenses that may have arisen from his relationship with Kristi.
Reversed and remanded.
Cole, J., concurred.