Roy T. Hutchison v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: April 28, 1998
• Docket: 0131973
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Bumgardner Argued at Salem, Virginia

ROY T. HUTCHISON MEMORANDUM OPINION * BY v. Record No. 0131-97-3 JUDGE RUDOLPH BUMGARDNER, III APRIL 28, 1998 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CRAIG COUNTY Duncan M. Byrd, Jr., Judge Michelle T. Gibson (Harvey S. Lutins; Gordon H. Shapiro; Jonathan S. Kurtin; Lutins, Shapiro & Kurtin, on brief), for appellant.

H. Elizabeth Shaffer, Assistant Attorney General (Richard Cullen, Attorney General, on brief), for appellee.

Roy T. Hutchison was convicted at a bench trial of rape of a

female under the age of thirteen years. The defendant claims

that the trial court erred in admitting the victim's hearsay

statements under the recent complaint exception to that rule. We

find that any error was harmless and affirm the conviction.

The indictment charged that the rape occurred between July

1989 and July 1994. At the time of the trial, July 1997, the

victim was seventeen. She testified that the defendant, who was

her uncle, had touched her vagina and breasts and had placed his

penis in her vagina about ten different times. The first time

was when she was eleven years old and in the fourth grade. This

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. occurred at her grandmother's home where the defendant lived.

The victim first made a complaint in 1995 to her school

counselor. She told the counselor that the first rape occurred

when she was in the third grade. The episodes had continued

until that May and also included digital penetration of her

vagina and anus, forced oral sex, and threats if she ever told

anyone. On cross-examination, the victim testified that her

cousin had seen one incident. The victim's cousin, sixteen at trial, testified that she

saw the defendant rape the victim. John Young, a long time

acquaintance of the defendant, testified the defendant told him

he had sexual relations with the victim. The statement was an

unsolicited one before the defendant had been accused of

anything. The defendant admitted to the sheriff's department

that he had put his penis in the victim on three occasions. At

trial he denied making that statement or having had any improper

relations with the victim.

The defendant complains that the statements of the victim to

the counselor should not have been admitted because they were not

made recently after the commission of the offense. The recent

complaint of rape exception to the hearsay rule was expanded in

its application and then enacted as Code § 19.2-268.2. Early

cases indicated that the complaint needed to be made soon after

the rape. See Pepoon v. Commonwealth, 192 Va. 804, 810, 66

S.E.2d 854, 858 (1951). Later cases held that delay in making

the report should not control its admissibility but should be a - 2 - factor bearing on the weight to be given the evidence. See

Herron v. Commonwealth, 208 Va. 326, 330, 157 S.E.2d 195, 198

(1967).

Timeliness of the complaint bears on the exercise of the

discretion vested in the trial court in deciding whether to admit

it. Thereafter, timeliness is a factor considered by the trier

of fact in weighing the evidence. See Woodard v. Commonwealth,

19 Va. App. 24, 27, 448 S.E.2d 328, 330 (1994); Terry v. Commonwealth, 24 Va. App. 627, 634-35, 484 S.E.2d 614, 617-18

(1997). It is a question of weight rather than admissibility.

See Lindsey v. Commonwealth, 22 Va. App. 11, 16, 467 S.E.2d 824,

827 (1996). We find that the trial court did not abuse its

discretion in admitting the statement though it was made long

after the event.

The defendant also complains that the trial court erred in

admitting details of the statement made to the school counselor

rather than just the fact of the complaint. We find that any

error made in admitting more detail than permitted was harmless.

The evidence of other witnesses independent of anything the

school counselor attributed to the victim clearly established

everything contained in that statement. "Even though testimony

is objectionable as hearsay, its admission is harmless error when

the content of the extra-judicial declaration is clearly

established by other competent evidence." Schindel v. Commonwealth, 219 Va. 814, 817, 252 S.E.2d 302, 304 (1979).

Although the trial court may have erred in admitting details

- 3 - of the victim's statement, the defendant is entitled to a

reversal of his conviction only where the "improper evidence

suggests a manifest probability that it was prejudicial to the

defendant." Rider v. Commonwealth, 8 Va. App. 595, 600, 383

S.E.2d 25, 27 (1989). "An error does not affect a verdict if a

reviewing court can conclude, without usurping the jury's fact

finding function, that, had the error not occurred, the verdict

would have been the same." Lavinder v. Commonwealth, 12 Va. App.

1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc). Considering that the victim's cousin observed the defendant

rape the victim, the defendant confessed to law enforcement that

he had inserted his penis in the victim on three occasions, and a

long time acquaintance of the defendant testified that the

defendant had told him that he had sexual relations with the

victim, we find no reversible error by the admission of the

challenged evidence. Upon review of the entire record, any error

was "inconsequential when viewed in comparison to the

overwhelming evidence of [the defendant's] guilt." Hanson v.

Commonwealth, 14 Va. App. 173, 176, 416 S.E.2d 14, 16 (1992).

We affirm the conviction of the defendant.

Affirmed.

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