                     COURT OF APPEALS OF VIRGINIA

Present:    Judges Elder, Annunziata and Senior Judge Hodges


TYRONE OSCAR JACKSON
 s/k/a TYRONE R. JACKSON
                                          MEMORANDUM OPINION * BY
v.          Record No. 1558-94-1           JUDGE LARRY G. ELDER
                                             DECEMBER 5, 1995
COMMONWEALTH OF VIRGINIA



         FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                         John K. Moore, Judge

            Andrew M. Sacks (Sacks, Sacks & Imprevento, on
            brief), for appellant.

            Margaret Ann B. Walker, Assistant Attorney General
            (James S. Gilmore, III, Attorney General, on brief),
            for appellee.



     Tyrone Jackson (appellant) appeals his conviction for

abduction with intent to defile in violation of Code § 18.2-48.

Appellant contends (1) insufficient evidence supported his

conviction and (2) the trial court erred in overruling his motion

to set aside the verdict, where the Commonwealth failed to

produce exculpatory evidence prior to trial.    Because we agree

with appellant's second contention, we reverse the conviction and

remand the case for further proceedings if the Commonwealth be so

advised.

     Viewed in the light most favorable to the Commonwealth, the

facts show that the fifteen-year-old victim was talking on a pay

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
phone at a convenience store in Virginia Beach in the early

evening hours of January 4, 1993.    Appellant overheard the

victim's phone conversation, in which the victim discussed with

his girlfriend how the two could obtain money for her abortion.

The victim testified he was desperate for money at the time and

"would have done almost anything for money."

     Appellant interrupted the phone conversation and told the

victim he would pay him to help appellant paint and move

furniture.   The victim accepted the offer and agreed to accompany

appellant in appellant's car to a bank so that the victim could

be paid in advance.   The victim testified, "I didn't see no [sic]

problem with it because I am a trusting person."
     After the two parties entered appellant's vehicle, appellant

revealed he did not have his bank card for the automatic teller

machine and said he needed to retrieve the card from his

apartment.   Once at the apartment, the victim willingly assisted

appellant in bringing luggage from appellant's car into the

apartment.   After appellant and the victim entered appellant's

apartment, the two engaged in general conversation.   The victim

testified appellant then went to his bedroom and asked the victim

to join him so that he would not "have to yell across the

apartment" to continue their conversation.

     When the victim entered the bedroom, appellant turned on a

television and began playing a pornographic video.    The victim

testified he felt uncomfortable and placed a fake phone call to




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his girlfriend to occupy the time.    Appellant then asked the

victim to sit on his water bed; when the victim did so, appellant

pushed him back onto the bed.    The victim testified appellant

pinned him to the bed and ignored his requests to leave him

alone.   When appellant removed the victim's penis from his pants,

the victim blacked out, only to awaken to find appellant's mouth

on his penis.   After the victim ejaculated, he dressed and ran

out of appellant's apartment, punched the glass out of a fire

extinguisher box to secure the fire extinguisher for protection,

went to a neighbor's house, and called the police.
     The victim also testified as to the following facts:     prior

to the sexual encounter, appellant did not threaten or intimidate

him; he willingly entered appellant's car; he had no reason to

fear appellant up until the time appellant pushed him onto the

bed; appellant never concealed his true name or identity; and

appellant did not try to prevent him from leaving the apartment

prior to the sexual encounter.

     Appellant admitted he met the victim at the convenience

store; he offered to pay the victim to paint and move some

furniture in his apartment; and he offered to find the victim a

job at the restaurant where he was employed.   Appellant testified

the victim voluntarily accepted an invitation to his apartment to

allow him to get some money to serve as an advance payment.

Appellant testified that nothing sexual occurred in the apartment

and that he never deceived the victim in any way.    Appellant




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testified the victim left appellant's apartment "to get his

wallet" from appellant's car but then never returned.   There was

no evidence that appellant again offered, once the parties were

in his apartment, to get his bank card or to go to the bank.

     A jury acquitted appellant on the charge of forcible sodomy,

but convicted him of abduction with intent to defile.   After

judgment, appellant sought a new trial on the ground the

Commonwealth failed to produce exculpatory evidence in the form

of the victim's January 4, 1993 statement to police.    Appellant

sought to show the victim made inconsistent statements to the

police, which were both exculpatory and material to the results

of the trial.   The trial court overruled the motion.
     We hold that the trial court erred in failing to set aside

the verdict after it learned the Commonwealth failed to produce

certain pieces of exculpatory and material evidence.    Well-

accepted principles of law guide our analysis.

          Fairness to the defendant requires the
     Commonwealth's pretrial production of exculpatory
     evidence under the Due Process Clause of the Fourteenth
     Amendment of the United States Constitution. Brady v.
     Maryland, 373 U.S. 83, 87 (1963). And evidence that
     impeaches the credibility of a Commonwealth witness is
     exculpatory evidence. Robinson v. Commonwealth, 231
     Va. 142, 150, 341 S.E.2d 159, 164 (1986)(citing United
     States v. Bagley, 473 U.S. 667, 676-77 (1985)).


Ramdass v. Commonwealth, 246 Va. 413, 420, 437 S.E.2d 566, 570

(1993)(emphasis added), vacated on other grounds, __ U.S. ___,

114 S. Ct. 2701 (1994)(other subsequent history omitted).   Not

only must such evidence be exculpatory, but it must also be


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material.    See Mackenzie v. Commonwealth, 8 Va. App. 236, 244,

380 S.E.2d 173, 177 (1989).    "Exculpatory evidence is material if

there is a reasonable probability that the outcome of the

proceeding would have been different had the evidence been

disclosed to the defense.    A 'reasonable probability' is one

which is sufficient to undermine confidence in the outcome of the

proceeding."     Bowman v. Commonwealth, 248 Va. 130, 133, 445

S.E.2d 110, 112 (1994)(citation omitted).    "If the defendant does

not receive such evidence, or if the defendant learns of the

evidence at a point in the proceedings when he cannot effectively

use it, his due process rights as enunciated in Brady are
violated."     Id., 445 S.E.2d at 111 (citation omitted).

     In this case, appellant filed a pretrial motion for

discovery pursuant to Rule 3A:11, requesting, inter alia,

production of any exculpatory evidence.    Despite this request,

the Commonwealth did not provide appellant with the victim's

January 4, 1993 statement to police, even after the preliminary

hearing, "presumably because the prosecution determined that the

report did not contain material exculpatory evidence."      Id., 445

S.E.2d at 112.

     Appellant argues he was denied the opportunity at trial to

explore material inconsistencies between the victim's preliminary

hearing and trial testimony and the statement given to police on

January 4, 1993.    Appellant points to four separate material

issues.




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     First, at the preliminary hearing and again at trial, the

victim testified he did not know how his shoes were removed.

However, in his January 4, 1993 statement to police, the victim

stated appellant removed his shoes.

     Second, the victim testified at the preliminary hearing and

the trial that appellant pulled down his pants and two pairs of

underwear and then performed oral sodomy upon him.   However, in

his January 4, 1993 statement to police, the victim stated that

although appellant pulled the victim's pants down, his underwear

remained in place, and appellant stuck his hand down the

underwear and pulled the victim's penis out.
     Third, the victim testified at trial that appellant first

pinned him to the bed and then pulled up his shirt and felt his

stomach.   However, in his January 4, 1993 statement to police,

the victim stated this event occurred before appellant pinned him

to the bed.

     Fourth, the victim testified at the preliminary hearing and

the trial that he "blacked out" during the alleged sodomy

encounter and therefore could not remember what transpired during

the alleged sodomy.   However, in his January 4, 1993 statement to

police, the victim never mentioned any such blackout and never

indicated he could not recollect certain portions of the sexual

encounter.

     In determining whether the trial court properly ruled, we

are reminded that:




                                 6
     Our role in assessing whether the availability of this
     information would have produced a different result is
     difficult. We must look at the totality of the
     circumstances with an awareness of the "difficulty of
     reconstructing in a post-trial proceeding the course
     that the defense and the trial would have taken had the
     defense not been misled by the prosecutor's incomplete
     response" to the pre-trial request for Brady
     information.


Bowman, 248 Va. at 134, 445 S.E.2d at 112 (citation omitted).

     In this case, the trial court incorrectly overruled

appellant's motion with respect to the four pieces of exculpatory

and material evidence.   Appellant's inability to impeach the

victim's in-court testimony concerning these pieces of

information affected appellant's right to a fair trial.

Specifically, the Commonwealth deprived appellant of his right to

fully explore the one issue which played a critical role in the

trial--the victim's credibility.       One fair inference to draw from

the jury's inconsistent verdicts is that the jury simply did not

believe the victim's testimony as it related to the act of

sodomy, but did believe that appellant deceived the victim into

returning to his apartment to defile him.      If appellant had been

afforded the opportunity to fully cross-examine the victim

concerning the four pieces of information the Commonwealth failed

to disclose, the jury very well may have decided to also acquit

appellant of abduction with intent to defile.      In other words,

there is a "reasonable probability" that these pieces of

exculpatory information might have proven to be the proverbial

"straw that broke the camel's back."



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     As the trial court recognized, the jury's determination of

appellant's guilt or innocence hinged almost solely on the

credibility of appellant and the victim.   Based upon the record

before us, and in light of the verdicts rendered, the

Commonwealth's failure to produce these four pieces of

impeachment evidence undermines our confidence in the jury's

verdict convicting appellant of abduction with intent to defile.

We therefore hold that because this evidence was exculpatory and

material and was withheld from appellant in violation of Brady,

appellant is entitled to a new trial.

     Accordingly, we reverse the conviction and remand for

further proceedings if the Commonwealth be so advised.

                                            Reversed and remanded.




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