                       COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Bray and Fitzpatrick
Argued at Alexandria, Virginia

LEONARD SIMMS WOODEN

v.          Record No. 2173-93-4             MEMORANDUM OPINION * BY
                                          JUDGE JOHANNA L. FITZPATRICK
COMMONWEALTH OF VIRGINIA                          MAY 2, 1995


              FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
                       LeRoy F. Millette, Jr., Judge

        Darrell M. Allen for appellant.
        Donald R. Curry, Senior Assistant Attorney General (James S.
        Gilmore, III, Attorney General, on brief), for appellee.


        Leonard Simms Wooden (appellant) was convicted in a jury

trial of rape in violation of Code § 18.2-61.         On appeal, he

argues that the trial court erred in:       (1) failing to allow

evidence of the post-incident relationship between appellant and

the victim; (2) failing to allow evidence of a Maryland acquittal

verdict in a similar case involving appellant and the victim; and

(3) denying appellant's counsel's request for reimbursement of

defense expenses.      For the reasons that follow, we affirm the

trial court.

        Appellant and the victim had a sexual relationship that

began in the summer of 1991 and continued until October 24, 1992,

when the victim stopped seeing appellant.       On the evening of

November 4, 1992, appellant met the victim as she drove to her

home.       He entered the driver's side of her car and drove to a

        *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
logging trail on Bull Run Mountain in Prince William County.

The victim testified that he forced her to have sexual

intercourse and perform oral sex on him.      Appellant then drove to

Reston, where he left the car.    The victim immediately reported

the rape to the Fairfax County Police Department.      In a separate

incident, appellant was tried by a jury on similar charges in

Talbot County, Maryland, and was acquitted prior to the Virginia

trial.
     Before trial, appellant submitted a motion in limine to

allow evidence of:   (1) the prior sexual relationship of the

parties, and (2) the Maryland trial and verdict.      The court held

that the prior sexual conduct of the parties was admissible

pursuant to Code § 18.2-67.7(A)(2).      Appellant moved to introduce

the Maryland trial and verdict to show that the victim had a

pattern of making false accusations against appellant.      The judge

denied this part of the motion and noted that "a not guilty or an

acquittal may have been the result of a failure for witnesses to

appear or failure of evidence--for a whole lot of reasons other

than the fact that it was just a false statement."      Appellant

objected to the court's ruling.    At trial, appellant did not

attempt to introduce evidence of the post-incident relationship

of the parties, including the Maryland incident.

     The court also denied appellant's pre-trial request for

funds to employ an investigator.       After trial, the court found it

had no authority to grant appellant's ex parte motion for witness



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fees and expenses for Detective David Sears, a Maryland police

officer who testified as a fact witness concerning the condition

of the victim's car.
             EVIDENCE OF THE POST-INCIDENT RELATIONSHIP

     Appellant argues that the trial court erred in failing to

allow evidence of his post-incident relationship with the victim.

     Code § 18.2-67.7 provides as follows:
          general reputation or opinion evidence of the
          complaining witness's unchaste character or
          prior sexual conduct shall not be admitted.
          Unless the complaining witness voluntarily
          agrees otherwise, evidence of specific
          instances of his or her prior sexual conduct
          shall be admitted only if it is relevant and
          is:
                2. Evidence of sexual conduct between
          the complaining witness and the accused
          offered to support a contention that the
          alleged offense was not accomplished by
          force, threat or intimidation or through the
          use of the complaining witness's mental
          incapacity or physical helplessness, provided
          that the sexual conduct occurred within a
          period of time reasonably proximate to the
          offense charged under the circumstances of
          this case . . . .


"Prior sexual conduct" of a complaining witness includes "any

sexual conduct on the part of the complaining witness which took

place before the conclusion of the trial, excluding the conduct

involved in the offense alleged."    Code § 18.2-67.10(5).   See

also Currie v. Commonwealth, 10 Va. App. 204, 207, 391 S.E.2d 79,

81 (1990).

     At the motion hearing, the judge ruled that evidence of

"prior sexual conduct" between appellant and the victim would be




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admissible at trial.   Under Code § 18.2-67.10(5), "prior sexual

conduct" includes the Maryland incident because it occurred

before the conclusion of the Virginia trial and was reasonably

proximate to the November 4, 1992 incident.   The trial court's

ruling allowed evidence of the parties' ongoing relationship,

but, as a matter of trial strategy, appellant chose not to pursue

it.   This does not constitute trial error.
                 EVIDENCE OF THE ACQUITTAL VERDICT

      Appellant further argues that the trial court erred in

failing to allow appellant to introduce the Maryland verdict of

acquittal into evidence.   We hold that the trial court properly

excluded the Maryland trial results.

      "'The admissibility of evidence is within the broad

discretion of the trial court, and a ruling will not be disturbed

on appeal in the absence of an abuse of discretion.'"    Crews v.

Commonwealth, 18 Va. App. 115, 118, 442 S.E.2d 407, 409 (1994)

(quoting Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d

838, 842 (1988)).   "'[E]vidence is relevant if it tends to

establish the proposition for which it is offered.'   Evidence is

material if it relates to a matter properly at issue."
Evans-Smith v. Commonwealth, 5 Va. App. 188, 196, 361 S.E.2d 436,

441 (1987) (citation omitted).

      The court's exclusion of the Maryland trial and acquittal

verdict was not an abuse of discretion.   The blanket acquittal in

the Maryland trial failed to prove that the victim "lied" or made




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a "false accusation."   Rather, a general verdict of acquittal can

be read only for the proposition that the prosecution failed to

prove each of the required elements beyond a reasonable doubt.

The Maryland verdict is not relevant to whether appellant

committed rape on November 4, 1992.
                     REIMBURSEMENT OF EXPENSES

     Finally, appellant argues that the trial court erred in

denying his request for reimbursement of expenses associated with

an investigator and an out-of-state, non-expert witness.
     Code § 19.2-163 provides that "[t]he circuit or district

court shall direct the payment of such reasonable expenses

incurred by such court-appointed attorney as it deems appropriate

under the circumstances of the case."   (Emphasis added).    See

Singleton v. Commonwealth, 16 Va. App. 841, 842, 433 S.E.2d 507,

508 (1993).   Under the circumstances of this case, the court did

not abuse its discretion in failing to award appellant his

requested expenses for an investigator or the $400 appearance fee

for the Maryland detective.

     Accordingly, the decision of the trial court is affirmed.
                                                 Affirmed.




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