                                          COURT OF APPEALS OF VIRGINIA


            Present: Judges Chafin, O’Brien and Russell
PUBLISHED


            Argued at Salem, Virginia


            KEITH ALEXANDER MAYBERRY
                                                                                  OPINION BY
            v.      Record No. 0225-15-3                                   JUDGE MARY GRACE O’BRIEN
                                                                                 MARCH 8, 2016
            COMMONWEALTH OF VIRGINIA


                                FROM THE CIRCUIT COURT OF CAMPBELL COUNTY
                                              John T. Cook, Judge

                            Joseph A. Sanzone (Sanzone & Baker L.L.P., on brief), for
                            appellant.

                            Virginia B. Theisen, Senior Assistant Attorney General (Mark R.
                            Herring, Attorney General, on brief), for appellee.


                    A jury convicted Keith Alexander Mayberry (“appellant”) of three crimes: object sexual

            penetration, in violation of Code § 18.2-67.2; indecent liberties with a child while in a custodial or

            supervisory relationship, in violation of Code § 18.2-370.1; and aggravated sexual battery of a child

            less than thirteen years old, in violation of Code § 18.2-67.3. Following a sentencing hearing, the

            court imposed the jury verdicts of life imprisonment for the object sexual penetration charge, five

            years of incarceration for the indecent liberties charge, and twenty years of incarceration for the

            aggravated sexual battery charge. Appellant asserts the following assignments of error:

                      I.    The [t]rial court erred by not allowing defendant’s counsel to
                            introduce a transcript of the complaining witness’ prior sworn
                            testimony as a recent complaint as the defendant has a sixth
                            amendment and fourteenth amendment right to a fair trial, which
                            would prohibit evidence from being solely used to benefit the
                            Commonwealth in a criminal trial.

                     II.    The trial court erred by failing to give an instruction which informed
                            the jury that if the defendant claimed accidental touching, and that
                the Commonwealth had the burden to prove that the touching was
                not accidental.

                                         I. BACKGROUND

        “On appeal, ‘we review the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth,

26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App.

438, 443, 358 S.E.2d 415, 418 (1987)). So viewed, the evidence established that on June 5, 2013,

the complaining witness (“K.M.”), who was twelve years old, spent the night at appellant’s mobile

home. Appellant, K.M.’s uncle, lived with his girlfriend, Angela Lopez, and her three sons. Lopez

and her children were out of town on the evening of June 5.

        K.M. testified that after she and appellant bathed his dog, they sat down to watch television.

At that time, appellant started hugging her. She stated that he began “touching [her] more

inappropriately . . . [on her] chest and [her] lower area.” Initially, he touched her over her clothing,

but eventually he put his hand inside her shorts and underwear. When asked by the prosecutor if

“any part of [appellant] touch[ed] inside” her private parts, K.M. answered, “Yes.”

        On both direct and cross-examination, K.M. acknowledged that she previously testified at

the preliminary hearing that appellant did not penetrate “any part” of her. Defense counsel

cross-examined her at some length concerning her statements at the preliminary hearing. K.M.

explained that the preliminary hearing was her first time in a courtroom and she was very nervous.

She asserted that despite her prior inconsistent statements at the preliminary hearing, her trial

testimony was accurate. Appellant’s counsel attempted to read from and introduce the transcript of

the preliminary hearing. The Commonwealth’s Attorney objected to the introduction of the

transcript on the grounds that K.M. never denied making an inconsistent statement during her

testimony at the preliminary hearing. The trial court sustained the objection.



                                                  -2-
        Angela Lopez testified that the victim would often speak to her about what was happening

in K.M.’s life. Approximately five days after the incident, K.M. told her that on June 5, appellant

“wouldn’t leave her alone the whole time that she was there, that he kept tickling her.” Lopez stated

that K.M. said she had asked appellant to stop but he would not, and she was “uncomfortable.”

K.M. showed Lopez where appellant had been tickling her, on her inner thigh.

        Melissa Nelson, a child protective services investigator, testified at trial. She is certified as a

forensic interviewer and is trained to speak with children about allegations of sexual abuse. Nelson

explained that she met with K.M. on June 21, and K.M. told her about the events of June 5. Nelson

testified that K.M. told her that appellant put his finger in her vagina.

        Investigator Brian Dudley of the Campbell County Sheriff’s Department testified that he

interviewed appellant on June 12 and June 13, 2013. Appellant confirmed that he was alone with

K.M. on June 5 and on that night he “had consumed a lot of alcohol and . . . was well on his way to

being drunk.” During the second interview, Investigator Dudley told appellant that the police had

recovered appellant’s DNA from inside the victim, which was not true. In response to that

allegation, appellant told Investigator Dudley that the penetration must have been an accident.

        Appellant testified on his own behalf during trial and unequivocally denied committing the

offenses. He said that he and K.M. were merely wrestling and tickling but “nothing out of the

ordinary” happened. He testified that he did not put his finger on or in the victim’s vagina. He said

that he did not penetrate K.M.’s vagina accidentally, and the only reason he told Investigator

Dudley that he might have touched her accidentally was because Investigator Dudley lied to him

about the DNA evidence. At trial, however, he repeatedly testified that no such penetration

occurred.

        At the conclusion of the testimony, appellant’s counsel moved to introduce the transcript

from the preliminary hearing both as a recent complaint under Code § 19.2-268.2 and as evidence of

                                                   -3-
a prior inconsistent statement. The trial court sustained the Commonwealth’s objection to the

introduction of the transcript.

        Appellant proffered a jury instruction that modified an instruction from the Virginia Model

Jury Instructions from accidental killing to “accidental touching.” The court held that the

instruction referred to accidental touching as a defense to the charge, but found “touching . . . [is]

not an element” of any of the charges. Therefore, the court held that the instruction could be

confusing to the jury and declined to give it.

                                             II. ANALYSIS

                      A. Assignment of Error I: Preliminary Hearing Transcript

        Appellant contends the trial court erred by refusing to admit the transcript of K.M.’s

testimony at the preliminary hearing because it constituted a recent complaint and was therefore

admissible pursuant to Code § 19.2-268.2.

                                         1. Standard of Review

        “Generally, the admissibility of evidence is within the discretion of the trial court and [the

appellate court] will not reject the decision of the trial court unless [the appellate court] find[s] an

abuse of discretion.” Midkiff v. Commonwealth, 280 Va. 216, 219, 694 S.E.2d 576, 578 (2010). A

court abuses its discretion

                when a relevant factor that should have been given significant weight
                is not considered; when an irrelevant or improper factor is considered
                and given significant weight; and when all proper factors, and no
                improper ones, are considered, but the court, in weighing those
                factors, commits a clear error of judgment.

Turner v. Commonwealth, 284 Va. 198, 206, 726 S.E.2d 325, 329 (2012) (quoting Landrum v.

Chippenham & Johnston-Willis Hosps., Inc., 282 Va. 346, 352, 717 S.E.2d 134, 137 (2011)).




                                                   -4-
                     2. Admissibility of the Transcript Under Code § 19.2-268.2

        Appellant asserts that K.M.’s preliminary hearing testimony was admissible under the

provisions of Code § 19.2-268.2 and that the court erred by denying the introduction of the

transcript. We disagree.

        Code § 19.2-268.2 provides:

                Notwithstanding any other provision of law, in any prosecution for
                criminal sexual assault under Article 7 (§ 18.2-61 et seq.) of Chapter
                4 of Title 18.2, a violation of §§ 18.2-361, 18.2-366, 18.2-370 or
                § 18.2-370.1, the fact that the person injured made complaint of the
                offense recently after commission of the offense is admissible, not as
                independent evidence of the offense, but for the purpose of
                corroborating the testimony of the complaining witness.

Code § 19.2-268.2 is often referred to as the “recent complaint” statute. The statute’s origins are

found in the common-law rule that a prosecutrix of an alleged rape was required to prove a timely

complaint to corroborate her claim that an assault was committed against her will. Woodard v.

Commonwealth, 19 Va. App. 24, 27, 448 S.E.2d 328, 330 (1994). Otherwise, the lack of such an

outcry was viewed historically as casting doubt on the claim that the crime actually occurred. See

Terry v. Commonwealth, 24 Va. App. 627, 634, 484 S.E.2d 614, 617 (1997). Code § 19.2-268.2

codified this common-law principle and expanded the recent complaint provisions to extend to

numerous sexual offenses, not only rape.

        Furthermore, we have held that “evidence of an out-of-court complaint by a victim is

admissible, not as independent evidence of the offense, but as corroboration.” Wilson v.

Commonwealth, 46 Va. App. 73, 83, 615 S.E.2d 500, 505 (2005) (quoting Lindsey v.

Commonwealth, 22 Va. App. 11, 14, 467 S.E.2d 824, 826 (1996)). Accordingly, while Code

§ 19.2-268.2 provides an exception to the hearsay rule, it is only the fact of the complaint that is

admissible, not the details of the complaint. Breeden v. Commonwealth, 43 Va. App. 169, 185, 596

S.E.2d 563, 571 (2004). Further, “the scope of admissibility lies within the sound discretion of the

                                                  -5-
trial court” on this issue. Id. (quoting Mitchell v. Commonwealth, 25 Va. App. 81, 86, 486 S.E.2d

551, 553 (1997)).

        K.M.’s testimony at the preliminary hearing was not a “complaint of the offense” as

contemplated by the statute. The transcript that appellant sought to introduce was not an

“out-of-court complaint by a victim,” Wilson, 46 Va. App. at 83, 615 S.E.2d at 505, but rather,

in-court testimony by a witness. The portion of the preliminary hearing transcript that appellant

sought to admit as a “recent complaint” consisted of questions presented to K.M. on

cross-examination and included her answers, under oath, from the witness stand. Testimony at a

preliminary hearing differs significantly from the statements that are described in Code

§ 19.2-268.2. Accordingly, the trial court did not err by refusing to admit the preliminary hearing

transcript under Code § 19.2-268.2.

                    3. Admissibility of the Transcript for Impeachment Purposes

        Appellant also asserts that the trial court’s refusal to permit the introduction of the

preliminary hearing transcript precluded him from introducing evidence in his defense. He argues

that the transcript “can be used to establish inconsistencies with [K.M.’s] testimony.”1

        The inconsistency between the victim’s testimony at the preliminary hearing and at trial was

presented to the jury, first by the Commonwealth, and then, through extensive cross-examination,

by appellant’s counsel. Appellant’s counsel had the opportunity to impeach K.M. with her prior




        1
          In his brief, appellant also argues that Code § 19.2-268.2 “unlawfully and
unconstitutionally restricts the defendant’s right to counsel and to a fair trial.” Appellant never
contended at trial that the statute was unconstitutional and deprived him of the right to a fair trial.
Under Rule 5A:18, “No ruling of the trial court . . . will be considered as a basis for reversal unless
an objection was stated with reasonable certainty at the time of the ruling.” Although appellant
noted an objection to the trial court’s ruling that the transcript was inadmissible, he never asserted
that the statute itself was unconstitutional. Accordingly, we do not consider this argument on
appeal.
                                                    -6-
statements. She acknowledged that her testimony differed at the preliminary hearing and offered an

explanation for the discrepancy.

        We have held that when a witness acknowledges making a prior inconsistent statement, it is

not error for the trial court to refuse to admit the earlier statement into evidence. Currie v.

Commonwealth, 30 Va. App. 58, 72-73, 515 S.E.2d 335, 342 (1999) (affirming trial court’s denial

of admission of preliminary hearing testimony when the witness acknowledged making the

inconsistent statement). Therefore, we find that appellant was not denied an opportunity to impeach

the victim with her testimony at the preliminary hearing.

                B. Assignment of Error II: Jury Instruction on Accidental Touching

        Appellant argues that the trial court erred by failing to give an instruction to the jury

regarding “accidental touching.” We disagree.

                                        1. Standard of Review

        Granting or denying jury instructions “rest[s] in the sound discretion of the trial court.”

Cooper v. Commonwealth, 277 Va. 377, 381, 673 S.E.2d 185, 187 (2009). On appeal, we review

the trial court’s ruling for an abuse of discretion. Gaines v. Commonwealth, 39 Va. App. 562, 568,

574 S.E.2d 775, 778 (2003) (en banc).

        “A reviewing court’s responsibility in reviewing jury instructions is ‘to see that the law has

been clearly stated and that the instructions cover all issues which the evidence fairly raises.’”

Darnell v. Commonwealth, 6 Va. App. 485, 488, 370 S.E.2d 717, 719 (1988) (quoting Swisher v.

Swisher, 223 Va. 499, 503, 290 S.E.2d 856, 858 (1982)). However, while a defendant is entitled to

have the jury instructed on his theory of the case, such an instruction must be supported by “[m]ore

than a scintilla of evidence.” Eaton v. Commonwealth, 240 Va. 236, 255, 397 S.E.2d 385, 397

(1990). “The weight of the credible evidence that will amount to more than a mere scintilla . . . is a

matter to be resolved on a case-by-case basis.” Woolridge v. Commonwealth, 29 Va. App. 339,

                                                  -7-
348, 512 S.E.2d 153, 157 (1999). Upon review, the evidence must be viewed in the light most

favorable to the proponent of the instruction. King v. Commonwealth, 64 Va. App. 580, 583, 770

S.E.2d 214, 216 (2015) (en banc).

                              2. Jury Instruction on Accidental Touching

         At the conclusion of the evidence, appellant requested that the following instruction be

given to the jury (“Instruction B”):

                        Where the defense is that the touching was an accident, the
                defendant is not required to prove this fact. The burden is on the
                Commonwealth to prove beyond a reasonable doubt that the
                touching was not accidental. If after considering all the evidence you
                have a reasonable doubt whether the touching was accidental or
                intentional, then you shall find the defendant not guilty.

Instruction B is a modification of the Model Jury Instruction that addresses “accident” as a defense

to homicide. At trial, appellant argued that “accidental explanations for any intentional act are the

same.”

         The evidence presented at trial did not support granting Instruction B. Appellant’s theory of

the case was not that any touching was accidental; he vehemently and repeatedly denied ever

sexually abusing K.M. or penetrating her vagina with his finger. The only evidence supporting an

“accident” defense was appellant’s statement during his second interview with the investigator that

if his DNA was found inside the victim, it must have been because his finger slipped. However,

appellant repudiated that statement at trial.

         At trial, appellant explained that he only said that he may have committed the offense “by

accident” because he was deceived by the investigator’s false statement that his DNA was found

inside the victim, not because he actually thought he might have accidentally touched K.M. When

asked by the Commonwealth’s Attorney, “[W]ell did it happen, or did it not happen?,” appellant’s

response was that “[i]t did not happen.”



                                                 -8-
       A defendant is only entitled to instruct the jury “on those theories of the case that are

supported by evidence.” Connell v. Commonwealth, 34 Va. App. 429, 436, 542 S.E.2d 49, 52

(2001) (emphasis added). Accidental touching was not the defense theory of the case. Appellant

testified that he never touched the victim’s vagina, intentionally or otherwise. Rather, as defense

counsel argued during closing, the defense theory was that “[t]he poor thing [referring to K.M.] is

making it up as she goes along.” The court did not err by denying the jury instruction.2

                                        III. CONCLUSION

       For the foregoing reasons, the decision of the trial court is affirmed.

                                                                                             Affirmed.




       2
          Because we hold that the evidence did not support granting the jury instruction, we need
not address any alleged error in the trial court’s finding that touching was not an element of any
of the offenses.
                                                 -9-
