                      COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Humphreys and Agee
Argued at Chesapeake, Virginia


CHARLES RUSSELL GUY
                                           MEMORANDUM OPINION * BY
v.   Record No. 2270—01-1                   JUDGE ROBERT P. FRANK
                                                AUGUST 6, 2002
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF NORTHAMPTON COUNTY
                       Glen A. Tyler, Judge

          Lynwood W. Lewis, Jr. (Vincent, Northam &
          Lewis, on brief), for appellant.

          Donald E. Jeffrey, III, Assistant Attorney
          General (Jerry W. Kilgore, Attorney General,
          on brief), for appellee.


     Charles Russell Guy (appellant) appeals from his jury trial

convictions for aggravated sexual battery, in violation of Code

§ 18.2-67.3, and object sexual penetration, in violation of Code

§ 18.2-67.2.   On appeal, he argues the trial court (1) improperly

admitted hearsay testimony and (2) erred in overruling his motion

to strike the evidence. 1   For the reasons stated below, we affirm

the convictions.



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
       Appellant argues the trial court should have granted his
motion to strike the evidence because without inappropriately
admitted hearsay evidence, the evidence was insufficient to
convict him of these offenses. Although appellant's
characterization of his argument is confusing, he clearly raises
                             BACKGROUND

     M.G., an eight-year-old girl, walked over to her neighbors'

house on October 15, 1999.   Her neighbors, appellant and his

wife, lived in a house directly behind M.G.'s home.   After M.G.

had been gone for thirty minutes, her mother walked down the

lane toward appellant's home, calling out M.G.'s name.

     Mother knocked on appellant's door, which was answered by

his stepson.   The stepson told M.G.'s mother that the girl had

been at the home, but left, and he did not know anything more

about her.   Mother then continued to search for her daughter.

     Suddenly, M.G. responded to her mother's calls, sounding

very close and clear.    Mother found M.G. in the last shed of

three that were beside appellant's house.   M.G. was lying on the

floor of the shed with her pants and underwear down around her

ankles.

     Initially, M.G. said she was tired and lying down.    Her

mother said, "[T]hat's not what you're doing," and asked, "Who

was in here with you."    As M.G. pulled on her clothes, she told

her mother, "You know who he is, Mama.    He's not a stranger."

She then walked out of the shed, toward the end of the row, and

indicated, "[H]e's back here."    Mother walked to the side of the

shed and saw appellant.    When mother confronted appellant, he

denied knowing anything.


both a hearsay argument and a separate sufficiency argument in
his appeal. Therefore, we will address both arguments.

                                 - 2 -
     As mother and M.G. walked by the front door of appellant's

home, M.G. became hysterical, saying, "I'm going to get in

trouble," and "He's got a gun."   M.G. remained hysterical after

they got home.

     Mother testified M.G. told her that appellant pulled her

into the shed, and then licked her pubic area and put his finger

into her vagina.   Deputy Sheriff Mike Smith testified, when he

arrived about a half-hour after mother discovered M.G., she

described basically these same incidents.   When M.G. testified

at trial, she explained appellant pulled her into the shed,

pulled her pants down, and then put his finger into her vagina.

She said he did nothing else.

     Mother also testified on cross-examination that M.G. had

talked to her on two other occasions about the incident in the

shed and was clear each time that appellant had licked her and

put his finger in her.   She did admit M.G. also said "Matthew"

had a gun, not appellant.   Mother further testified that M.G.

told her appellant had pulled his penis out of his pants while

they were in the shed.

     The doctor who examined M.G. at the emergency room

testified that she had bruising on her vagina and some tearing

to her hymen.    Both injuries occurred within twenty-four hours

before the examination, according to the doctor.   He also

testified the injuries were consistent with a finger inserted



                                - 3 -
into the vagina, but were not likely self-inflicted or from a

fall.

        The SANE 2 nurse, who also examined M.G., testified the

injuries were no more than six hours old.     She explained the

injuries could be caused by a man's finger.     She also testified,

although a person possibly could injure herself in this way, it

would be painful to M.G. to cause these injuries to herself.

She explained the injuries were inconsistent with a fall.

        Appellant's wife and stepson testified that M.G. visited

their home on October 15, 1999.     Neither of them heard M.G. cry

out nor did they see anything unusual.     Wife testified appellant

was at the shed when she left for work.     The stepson was in the

shower before M.G.'s mother knocked on the door, asking about

her daughter.

        Appellant's doctor testified appellant was on disability

and prescribed oxygen for eighteen hours a day.     The doctor

admitted on cross-examination that appellant will feel better on

some days and could engage in more activity on those days.

        Appellant denied to the police and in his testimony at

trial that he ever touched M.G.




        2
       "SANE" is an acronym for sexual assault nurse examiner, a
discipline that involves training in the medical signs of sexual
assault.


                                 - 4 -
                             ANALYSIS

     Appellant argues the trial court erred by permitting mother

to testify regarding statements made by M.G, which affected both

his conviction for aggravated sexual battery and his sentencing.

Appellant further contends the evidence was insufficient to

convict him of aggravated sexual battery and object sexual

penetration.   The Commonwealth argues the evidence was

admissible under the excited utterance exception to the hearsay

rule, 3 appellant waived his objection to this evidence, and the

evidence was sufficient for the convictions.

                            I.   Hearsay

          Hearsay is "testimony which consists [of] a
          narration by one person of matters told him
          by another." Williams v. Morris, 200 Va.
          413, 417, 105 S.E.2d 829, 832 (1958). The
          strongest justification for the exclusion of
          hearsay evidence is that the trier of fact
          has no opportunity to view the witness on
          cross-examination and to observe the
          demeanor of the out-of-court declarant to
          determine reliability. C. Friend, [The Law
          of Evidence in Virginia] § 224 [(2d ed.
          1983)]. . . . [H]earsay evidence is
          admissible if it falls into one of the
          recognized exceptions to the hearsay rule
          which are based on necessity and inherent
          trustworthiness. C. Friend, supra, § 230 et
          seq.




     3
       The Commonwealth specifically denies the trial court
admitted the evidence under the recent complaint exception to
the hearsay rule. See Code § 19.2-268.2. Therefore, we do not
discuss this exception.


                                 - 5 -
Evans-Smith v. Commonwealth, 5 Va. App. 188, 197, 361 S.E.2d

436, 441 (1987).    See also Jenkins v. Commonwealth, 254 Va. 333,

338, 492 S.E.2d 131, 134 (1997).

     Hearsay statements are admissible under the excited

utterance exception when the declaration "is spontaneous and

impulsive, thus guaranteeing its reliability."      Goins v.

Commonwealth, 251 Va. 442, 460, 470 S.E.2d 114, 126 (1996).       See

also Braxton v. Commonwealth, 26 Va. App. 176, 184, 493 S.E.2d

688, 691 (1997).    "The statement must be prompted by a startling

event and be made at such time and under such circumstances as

to preclude the presumption that it was made as the result of

deliberation.    In addition, the declarant must have firsthand

knowledge of the startling event."      Goins, 251 Va. at 460, 470

S.E.2d at 126 (citations omitted).      Admissibility of evidence as

an excited utterance rests within the discretion of the trial

judge. 4   Walker v. Commonwealth, 19 Va. App. 768, 772, 454 S.E.2d

737, 740 (1995).


     4
       Appellant correctly notes the Commonwealth has the burden
to establish evidence falls within an exception when introducing
the evidence at trial. However, on appeal, we presume the judge
knows and understands the law, applying the appropriate
principles correctly. Yarborough v. Commonwealth, 217 Va. 971,
978, 243 S.E.2d 286, 291 (1977) (appellate court presumes the
trial court correctly applied the law to the facts); Justis v.
Young, 202 Va. 631, 632, 119 S.E.2d 255, 256-57 (1961)
(appellate courts presume a trial court's ruling is correct);
Dunn v. Commonwealth, 20 Va. App. 217, 219-20, 456 S.E.2d 135,
136 (1995) (the judgment of a trial court is presumed correct on
appeal). Therefore, where the trial court rules evidence is
admissible, but does not elaborate, appellate courts must
examine the record for justification of the trial court's

                                - 6 -
     Appellant argues M.G.'s statements to her mother do not

fall within the excited utterance exception because (1) the

evidence does not establish the proximate time between the

startling event and the statement, (2) M.G. was not excited by

the startling event when she made the statements, and (3) M.G.

was responding to questions from her mother rather than making

spontaneous statements.   We disagree.

     The lapse of time between a startling event and a

statement, while a factor to consider, is not determinative of

whether to admit the statement as an excited utterance.    Doe v.

Thomas, 227 Va. 466, 471, 318 S.E.2d 382, 385 (1984); Walker v.

Commonwealth, 19 Va. App. 768, 772, 454 S.E.2d 737, 740 (1995).

Failure of the evidence to indicate a specific length of time

between the event and the statement does not preclude admission

of the utterance.   See, e.g., Braxton v. Commonwealth, 26 Va.

App. 176, 185, 493 S.E.2d 688, 692 (1997) (finding trial court

did not err when admitting an excited utterance, even though the

record did "not establish how much time elapsed" between the

event and the statement).   Therefore, the fact that the

testimony did not delineate a specific time between the




decision. Additionally, if a defendant believes the trial court
has not justified its ruling, then he must ask the judge to
explain the rationale, especially when, as here, the defense
objection is a one-word statement. Id. (appellant has the
burden to prove the trial court erred).


                               - 7 -
startling event and M.G.'s statement to her mother did not

prevent the trial court from admitting the evidence. 5

     The record did disclose that M.G. made the statement to her

mother a very short time after the incident.   M.G. testified the

assault occurred around the time appellant's wife left for work,

at approximately 4:45 p.m.   M.G.'s mother began looking for her

around five o'clock.   Given the description of events, M.G. was

found and returned to her home within thirty minutes of the

assault.   M.G. made her statements at the time she was

discovered in the shed and soon after she returned to her home.

Based on this record, the trial court could conclude the

utterance was "the transaction speaking through the declarant,"

rather than "the declarant speaking about the transaction."

Royal v. Commonwealth, 12 Va. App. 928, 931, 407 S.E.2d 346, 348

(1991).

     Appellant also argues the hearsay should not have been

admitted, as M.G. was not excited by the startling event when

she made the statements.   However, the record "contains

sufficient evidence to establish" that M.G. was speaking "under

the agitation" of the assault when she made the statements to

her mother.   Goins, 251 Va. at 470, 470 S.E.2d at 126.

     M.G., who was eight years old at the time, started talking

to her mother after she pulled on her clothes.   A reasonable


     5
       We do not suggest that the criminal event must be the
startling event that precipitates the utterance.

                               - 8 -
inference is that this conversation occurred almost immediately

after the sexual assault.   Instead of telling her mother the

name of the person who had been in the shed with her, M.G.

described him as "not a stranger" and pointed to where he was

hiding.   The trial court could find, based on her age, the

immediacy of the statement, and the manner in which she

identified appellant, that M.G. was under the influence of the

event at the time she made her statements outside the shed.

     Additionally, when M.G. and mother began to leave

appellant's yard, M.G. became hysterical and overwrought.     She

was afraid someone with a gun would try to hurt her.   When they

arrived at their home moments later, M.G. would not sit still.

At this point, when M.G. was in the safety of her own home, she

told mother that appellant had licked her pubic area and put his

finger into her vagina.   Given all these factors, see Walker, 19

Va. App. at 772-74, 454 S.E.2d at 740, we cannot say the trial

court abused its discretion.

     Appellant also argues M.G. was responding to questions from

her mother and, therefore, the trial court erred in admitting

the statement under the excited utterance exception.   The

testimony directly contradicts appellant's assertion that M.G.'s

statement about the licking was in response to a question.    Her

mother testified, "I did not question her."   However, the

initial identification of appellant as the person who was in the



                               - 9 -
shed with M.G. was in response to her mother's questions, "what

were you doing" and "who was in here with you."

     Again, no fixed rules determine whether a statement is

admissible as an excited utterance.     Royal, 12 Va. App. at 931,

407 S.E.2d at 348.   This exception can apply when statements are

made in response to questions.     Martin v. Commonwealth, 4

Va. App. 438, 442, 358 S.E.2d 415, 418 (1987).    The key is

whether "the question or questioner suggested or influenced the

response, then the declaration may lack the necessary

reliability to be admitted."     Id.

     Mother did not frame her questions in such a manner that

they suggested an answer nor did M.G.'s responses directly

answer the questions.   When mother asked who had been in the

shed with M.G., the question did not suggest a particular name.

In fact, M.G. refused to say a name, but instead said the person

was someone mother knew.   She then pointed in appellant's

direction rather than directly answer her mother's question.

More importantly, mother did not ask questions about what

happened in the shed.   She testified, "I did not question her.

I have worked these cases before."

     We find the trial court did not abuse its discretion when

it admitted this evidence.   We also find, even if the mother's

statements on direct examination were improperly admitted,

appellant waived any objection to this evidence during his

cross-examination of the Commonwealth's witnesses.

                               - 10 -
     "[W]here an accused unsuccessfully objects to evidence

which he considers improper and then on his own behalf

introduces evidence of the same character, he thereby waives his

objection, and we cannot reverse for the alleged error."

Saunders v. Commonwealth, 211 Va. 399, 401, 117 S.E.2d 637, 638

(1970) (citations omitted).   While a defendant can cross-examine

a witness without waiving an earlier objection, once "evidence

that is similar to that to which the objection applies" is

introduced by the questioning, the original objection is waived.

Brant v. Commonwealth, 32 Va. App. 268, 278, 527 S.E.2d 476,

480-81 (2000).   See also Newton v. Commonwealth, 29 Va. App.

433, 451, 512 S.E.2d 846, 854-55 (1999).

     On cross-examination, mother initially answered questions

about M.G.'s statements made on the day of the incident, to

which appellant had previously objected.   These questions were

designed to clarify and impeach mother's testimony regarding the

statements and did not waive the previous objections.    However,

defense counsel then asked, "Now, you had the occasion over a

number of days to hear further descriptions of what had occurred

from [M.G.]; is that correct?"   When mother said they had,

counsel asked, "Were [sic] there more than one version of the

facts that were given to you by your daughter?"   Mother

answered, without objection or limitation, "She was very clear

on the three things that she originally told me that he had put

a cigarette in her mouth; that he had put his finger in her

                              - 11 -
private parts and that he had licked her private parts."    Since

this cross-examination was beyond the scope of mother's direct

testimony, her answers were introduced on appellant's "own

behalf."

     Additionally, Deputy Sheriff Smith testified on direct

examination, without objection, 6 "[M.G.] was very much upset and

scared that Mr. Guy was going to come and get her.     That's what

she told me.   [M.G.] then told me that Mr. Guy had basically

licked her vagina and stuck his finger in her hole."

     Appellant also argues M.G.'s statement was prejudicial as

to sentencing.   However, as we find the evidence was properly

admitted, appellant cannot complain of prejudice from this

testimony.

                         II.   Sufficiency

     Appellant argues the trial court should have granted his

motion to set aside the verdict as "a serious credibility issue"

existed about the victim's testimony.   We disagree.

     Appellant's motion to the trial court argued initially that

double jeopardy prevented conviction on both charges.    Counsel

then admitted the evidence was sufficient "for an incident to

have occurred and the jury having found guilt on the particular




     6
       At oral argument, appellant contended he made a continuing
objection at trial that included this testimony. The record
does not support this contention.

                               - 12 -
penetration offense it certainly seems that the penetration was

an offense that was committed and there was no further evidence

supported by testimony of any aggravated sexual battery act."

Clearly, appellant conceded sufficiency of the evidence for the

penetration offense, thereby waiving any sufficiency argument

related to this conviction.    See Redman v. Commonwealth, 25

Va. App. 215, 220, 487 S.E.2d 269, 272 (1997).    See also Rule

5A:18.

     Appellant claims several inconsistencies between the

witnesses' testimony made M.G.'s testimony incredible.   However,

credibility issues are in the province of the jury.    Wilson v.

Commonwealth, 31 Va. App. 495, 508, 525 S.E.2d 1, 7 (2000).       The

trier of fact resolves any inconsistencies in the testimony.

See Barker v. Commonwealth, 230 Va. 370, 373-74, 337 S.E.2d 729,

732 (1985).    As nothing in this record suggests the witnesses

were inherently incredible, we will not set aside the aggravated

sexual battery conviction.

     For the reasons stated above, we affirm appellant's

convictions.

                                                           Affirmed.




                               - 13 -
