                     COURT OF APPEALS OF VIRGINIA


Present: Judges Bumgardner, Humphreys and Clements
Argued at Salem, Virginia


DANIEL LATTRELL BLACKMON
                                                  OPINION BY
v.   Record No. 2325-99-3                 JUDGE ROBERT J. HUMPHREYS
                                              NOVEMBER 14, 2000
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
                          Ray W. Grubbs, Judge

             Richard W. Davis, Jr. (Davis, Davis & Davis,
             on brief), for appellant.

             Richard B. Smith, Senior Assistant Attorney
             General (Mark L. Earley, Attorney General, on
             brief), for appellee.


     Daniel Lattrell Blackmon was convicted by a jury of

abduction and rape.    On appeal, Blackmon contends the trial court

erred when it denied him a "Rape Shield Hearing" to determine the

admissibility of certain evidence.

                            I.   BACKGROUND

     On November 19, 1998, Blackmon and Curtis Lee Martin went to

the Terrace View Apartments in Blacksburg to obtain marijuana

from an apartment tenant.    When they arrived, they burst into an

apartment and began yelling for "Rob," saying he had their

marijuana.    Blackmon and Martin told the several people who were

in the apartment that they had a gun and would shoot if the

individuals did not cooperate with them.      An argument ensued.
     While the argument continued, Blackmon went to the couch,

where Nisa McCarter was sitting.   Blackmon began to forcibly kiss

McCarter, despite the fact that she tried to push him away.      He

then pulled McCarter into a hallway closet and closed the door.

Martin joined the two in the closet shortly thereafter.   Martin

and Blackmon held the door closed as they held McCarter, pulled

off her jeans and tore off her underwear.

     A few moments later, someone in the apartment yelled that

the police were coming.   Martin and Blackmon then left the

closet.

     McCarter pulled on her jeans and went into a nearby bedroom

with a friend, Alicia Neuman.   As Neuman was attempting to lock

the bedroom door, Blackmon pushed his way in, grabbed Neuman by

the face and pushed her into the hallway.   He then shut and

locked the bedroom door behind him, pushed McCarter to the bed,

pulled off her jeans, and pulled his own pants down around his

ankles.   He "put his penis into [her] vagina . . . for a few

seconds," before the occupants in the apartment began to bang on

the door and eventually broke into the room.   Blackmon then

pulled up his pants and left the apartment.    He was apprehended

by the police as he was leaving the apartment building.

     Both Blackmon and McCarter were later tested at Montgomery

County Regional Hospital.   The examination of McCarter revealed

no semen present in her vagina, but semen was found on her inner

thigh.    The DNA in the semen was found to be consistent with

Blackmon's DNA.

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     During a preliminary hearing, Blackmon attempted to question

McCarter about her past sexual history.    The Commonwealth

objected to the question, arguing that the preliminary hearing

was not a "Rape Shield Hearing."    The trial court sustained the

objection.

     Six days before trial, Blackmon served notice of his request

for a Rape Shield Hearing pursuant to Code § 18.2-67.7.      In the

notice, Blackmon contended that he "need[ed] to question the

alleged victim, outside the hearing of the jury, to determine

whether the DNA found on her person could have come from another

source," and asked the court to then rule on the admissibility of

this evidence for purposes of trial.

     During a hearing to determine if Blackmon's request would be

granted, he argued the following:

             I will ask the Court to allow me outside the
             hearing of the jury . . . [to] ask her is
             there any chance that the presence of semen
             on her leg came from another
             source. . . . [I]f the answer is yes, then I
             believe it is something that I'm allowed to
             go into . . . . If her answer is no Mr.
             Davis I swear under oath that I, there's no
             other possibility where that came from then I
             think . . . I will move on . . . .

The prosecutor objected to the motion as a "fishing expedition,"

and explained that, based on the DNA results, "the probability of

it being someone other than Mr. Blackmon was [one in] 1.4 billion

in the black population.    It also says 2.9 billion in the

Caucasian population, and one in 5.5 billion in the Hispanic

population."


                                 - 3 -
     The trial court took the motion under advisement and just

before trial, denied the request, stating, "in light of the DNA

evidence that has been proffered by the Commonwealth, it would

appear to me that your inquiry would not be relevant to the

issues that will be confronted within this case."

                          II.   ANALYSIS

     On appeal, Blackmon argues that the trial court erred in

denying his motion for a Rape Shield Hearing, and by doing so,

violated his Sixth Amendment right to confront witnesses, as well

as his right to due process.

     Virginia's Rape Shield statute, Code § 18.2-67.7, provides

the following, in pertinent part:

          A. In prosecutions under this article . . .
          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:

              1. Evidence offered to provide an
          alternative explanation for physical evidence
          of the offense charged which is introduced by
          the prosecution, limited to evidence designed
          to explain the presence of semen, pregnancy,
          disease, or physical injury to the
          complaining witness's intimate parts; or

            *      *      *         *      *   *         *

          C. Evidence described in subsections A and B
          of this section shall not be admitted and may
          not be referred to at any preliminary hearing
          or trial until the court first determines the
          admissibility of that evidence at an
          evidentiary hearing to be held before the


                                - 4 -
            evidence is introduced at such preliminary
            hearing or trial . . . .

(Emphasis added.)

     We have interpreted the Rape Shield statute to "[require] a

defendant seeking to introduce evidence of a victim's prior

sexual conduct to request an evidentiary hearing before such

evidence can be elicited at trial."     Brown v. Commonwealth, 29

Va. App. 199, 213, 510 S.E.2d 751, 758 (1999) (citing Code

§ 18.2-67.7(C)).    However, the issue of whether a trial court

must hold an evidentiary hearing, in response to a party's

request, is a question of first impression.

     Blackmon contended during the hearing that "the rape shield

statute provides that I need to give notice to the Court for a

hearing if I wish to question her on [whether] someone else could

have left the sperm on her thigh, and it makes sense in a rape

shield hearing."    Blackmon misunderstands the purpose and meaning

of the Rape Shield statute.

     "Where the language of a statute is clear and unambiguous,

we are bound by the plain statement of legislative intent.    We

must 'take the words as written' . . . and give them their plain

meaning."    Adkins v. Commonwealth, 27 Va. App. 166, 169, 497

S.E.2d 896, 897 (1998) (citation omitted).    The plain and

unambiguous language of Code § 18.2-67.7 does not require a trial

court to hold an evidentiary hearing on every request.    Instead,

the statute merely requires that a trial court hold a hearing




                                - 5 -
before admitting evidence of specific instances of prior unchaste

character or sexual conduct.

     Furthermore, in both his motion for a Rape Shield Hearing,

as well as his argument at the hearing on the motion, Blackmon

failed to proffer any testimony or evidence which he intended to

elicit from McCarter concerning prior sexual conduct.    Instead,

he merely requested that the trial court allow him to question

McCarter, under oath, in order to discover potential exculpatory

evidence pertaining to the source of the semen on McCarter's

thigh.

     Code § 18.2-67.7 plainly states that "[u]nless 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 falls within the enumerated

exceptions.   (Emphasis added.)    We emphasize the words "specific

instances" and "prior" because, by their very nature, these words

demonstrate that the legislature intended this statute to provide

a mechanism for preventing the use of an alleged sexual assault

victim's sexual history, pre-dating the offense, from reaching

the ears of the fact finder, when such evidence has no relevance

or probative value beyond calling into question the chastity of

the complaining witness.   It logically follows that a trial court

can make a threshold evaluation of a motion to hold a hearing to

determine the "admissibility" of the evidence at issue based upon

its relevance and probative value only after "specific instances"



                                  - 6 -
of sexual conduct occurring prior to the charged offense have

been alleged and proffered.   See Code § 18.2-67.7(C).

     In his motion, Blackmon failed to proffer any specific

sexual conduct occurring on any occasion prior to the offense.

Moreover, Blackmon's stated reason for requesting the hearing was

to explore "an alternative explanation for the presence [of

semen]."   The court did not prevent Blackmon from cross-examining

McCarter, during the preliminary hearing or at trial, concerning

her explanation for the presence of semen at the time of the

alleged offense.

      Under these circumstances, we find that the trial court

correctly denied Blackmon's request for a Rape Shield Hearing.

Code § 18.2-67.7 does not mandate that a trial court hold a

hearing on every request, nor does it require a trial court to

hold a hearing for a reason outside the express purpose of the

statute.

     Finally, as to Blackmon's constitutional arguments, we note

that a "defendant does not have a general constitutional right to

discovery in a criminal case."     Goins v. Commonwealth, 251 Va.

442, 456, 470 S.E.2d 114, 124 (1996).    However, we do not address

these issues further, because Blackmon failed to raise these

arguments before the trial court.    See Swann v. Commonwealth, 247

Va. App. 222, 441 S.E.2d 195 (1994).

                                                          Affirmed.




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