                        COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Annunziata and Overton
Argued at Norfolk, Virginia


TERRY FEEBACK
                                              MEMORANDUM OPINION * BY
v.              Record No. 2469-95-1        JUDGE ROSEMARIE ANNUNZIATA
                                                   MAY 13, 1997
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                        Edward W. Hanson, Jr., Judge
               J. Roger Griffin, Jr. (Christie & Kantor, on
               brief), for appellant.

               Leah A. Darron, Assistant Attorney General
               (James S. Gilmore, III, Attorney General, on
               brief), for appellee.



        Following a jury trial, appellant, Terry Feeback, was

convicted of rape.       On appeal, he contends the trial court erred

in allowing the jury to hear certain statements made during his

interrogation concerning the alleged crime.       Finding no error in

the trial court's admission of the statements, we affirm.

                                       I.

        Kimberly Chapman testified that she met appellant and his

friend, Joshua Angel (Josh), at a Virginia Beach bar.         Chapman,

who had been drinking, discussed "doing drugs" with appellant and

Josh.       Chapman, appellant and Josh left the bar and proceeded to

a hotel room, intending to smoke crack cocaine.        Chapman

testified that she had money to pay for the drugs, and she denied

        *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
appellant's contention that she had offered to perform sexual

acts with appellant and Josh in return for drugs or money.      At

the hotel room, Chapman placed a telephone call, attempting to

obtain some crack.   When it became evident that she would be

unable to obtain any crack, Chapman attempted to leave.

       Chapman testified that as she moved toward the door,

appellant pushed her back onto the bed.   Appellant threatened

Chapman and told her he wanted her to perform oral sex on him.

While Josh restrained Chapman's arms, appellant removed her

shorts and Chapman performed oral sex on appellant.   Chapman

testified that, during these events, appellant continually struck

her on the head and called her a "crack whore."   Appellant also

attempted to insert his penis in Chapman's vagina, but his

attempts to have intercourse with Chapman were short-lived

because of a failed erection.   Appellant continued to threaten

and curse Chapman during these efforts.   When appellant stopped,

he ordered Chapman to "please" Josh.    Josh penetrated Chapman's

vagina with his penis.    Meanwhile, appellant sat on the bed

behind Chapman's head; he later sat in a chair to the side of the

bed.   When Josh's intercourse with Chapman ended, appellant

stated that he intended to phone the front desk to complain about

Chapman soliciting sex.   Chapman gathered her clothes and left.

Chapman's complaint of rape was corroborated by the investigating

detective and the emergency room nurse to whom she was referred.
       Some hours later, appellant was interrogated by Detective




                                - 2 -
Ball.    Appellant told Ball that he and Josh met Chapman at a

Virginia Beach bar and that the three of them returned to the

hotel room.    He stated that Chapman sought to "sell herself" to

the two men upon reaching the doorway of the room.    He stated

that he then called security, and Chapman ran away.    Ball then

stated, "[w]ell, she's claiming that she was raped by your buddy

and orally sodomized by you."    Appellant responded, "[t]o my

knowledge there was no sex whatsoever that went on in that room."

Appellant again stated that Chapman needed money and that she

had attempted to sell herself.
        Appellant then stated that Chapman had first attempted to

sell herself upon exiting the bar, and he subsequently

acknowledged that Chapman came inside the hotel room to place a

call, attempting to obtain crack.    Appellant also stated that

Chapman remained in the room for an hour but that he went to

sleep.    Ball then commented, "[w]ell, according to other people,

you were awake."    When Ball asked whether Josh had sex with

Chapman, appellant responded that he did not know.    Ball

responded, "He's already told me he did.    Okay? . . . Now, tell

me what happened."

        Appellant denied having sex with Chapman but admitted having

oral sex with her.    Appellant stated that he could not get an

erection, so that was the end of his "deal."    Although he

acknowledged that Josh and Chapman then had sex, he maintained

that the sex was consensual and that Chapman wanted the men to




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buy her crack in exchange for sex.      Appellant told Ball that

Chapman became upset and demanded to be paid for the sexual acts

when it became apparent to her that the crack deal would not go

through.   He stated that he told Chapman to leave and called the

front desk to assure her departure.     Ball stated, "Well, I've

heard it differently than what you're telling me . . . . [T]hat's

not what she told me.   That's not what Josh told me," but

appellant maintained his account of the events.
     In response to further questions from Ball, appellant denied

having hit or threatened Chapman.    Continuing the interrogation,

Ball then stated, "Josh has told me pretty much similar to what

she's told me, and . . . you're telling me something a lot

different than what they've told me."     When appellant continued

his denials, Ball left to interview Josh for the first time.

     Upon returning from interviewing Josh, Ball told appellant,

"I just got done talking to Josh again.     Okay.   And he's really

upset.   He's over there crying like I've never seen a man cry

before. . . .   [H]e's pretty much told me everything and he's

hoping that you'll do the right thing."     Ball then stated,

"[Josh] told me you hit her."   In response, appellant admitted

that he struck Chapman once on the head but stated he was just

"joking around."   Appellant also admitted that he attempted to

insert his penis in Chapman's vagina but stated he could not get

an erection; he further admitted that he and Josh had sex with

Chapman at the same time but stated he did not remember Chapman




                                - 4 -
being upset or afraid.    To appellant's latter contention, Ball

responded, "Josh does."    Appellant then admitted having smacked

Chapman another time but characterized the smack as foreplay.

Ball continued by telling appellant that Josh was "so sick," that

"he's worked himself up into such a tizzy and -- and he feels

really bad about it, and I think he's sincere."    Appellant

responded by admitting that he inserted his penis into Chapman's

mouth and told her to perform oral sex on him a second time from

the back of the bed, while Josh was penetrating her vagina.
     When appellant denied the use of force, Ball asked, "Well,

why was Josh trying to tell her . . . do what he says?"

Appellant again denied using force, but he admitted he could have

been a "little mean," raising his voice when he told Chapman to

perform oral sex on him and calling her a whore.   Appellant also

admitted telling Chapman to perform oral sex on Josh and that he

may have hit Chapman more than twice.

                                 II.

     Appellant contends that the trial court erred in allowing

the jury to hear the statements made and questions posed by Ball

during the interrogation which related the alleged statements of

Josh and Chapman.    Specifically, he contends that those

statements were inadmissible hearsay and "highly prejudicial"

and, therefore, should have been redacted from the presentation

to the jury. 1   We disagree.
     1
      The Commonwealth argues that appellant is procedurally
barred from raising a constitutional claim. However, we do not



                                - 5 -
     While Virginia courts have not addressed the precise issue

before us, we find the controlling principle well articulated in

Atkins v. Commonwealth, 13 Va. App. 365, 412 S.E.2d 194 (1991).
          Whether statements which draw responses are
          inadmissible as hearsay depends upon the
          nature of the statements. Words which
          constitute a question or accusation that
          result in a party admission are not barred by
          the hearsay evidence rule. It is only when
          the prompting statements have the quality of
          evidence (offered for the truth of the matter
          asserted) that they become inadmissible
          hearsay.

Id. at 368, 412 S.E.2d at 196 (citing Tellis v. Traynham, 195 Va.

447, 453, 78 S.E.2d 581, 584 (1953)); see also State v. Miller,

921 P.2d 1151, 1159 (Ariz. 1996) (declarant's statement, made

during course of interrogation, admitted to show effect on

defendant during interrogation, not for its substantive content

and therefore not hearsay); Williams v. State, 669 N.E.2d 956,

958 (Ind. 1996) (declarant's statements largely designed to

prompt defendant to speak held not to be hearsay; "it was the

statements made by [defendant] that really constituted the

evidentiary weight of the conversation"); Worden v. State, 603
So.2d 581, 583 (Fla. App. 1992) (questions propounded and

statements of detectives not offered for their truth, but to

place defendant's answers in context).

(..continued)
read appellant's brief to assert a constitutional claim
independent of his hearsay contention. Appellant simply frames
his hearsay argument, in part, in terms of the right to confront
witnesses, a right necessarily affected by the admission of
hearsay evidence.




                              - 6 -
     The statements at issue in the present case were not offered

for the truth of the matter asserted.    Rather, they were offered

to show the prompts to appellant's statements and the context of

the interrogation, throughout which, appellant's version of

events changed dramatically.   As such, the statements were not

objectionable as hearsay.    See Atkins, 13 Va. App. at 368, 412

S.E.2d at 196.

     It remains only to determine whether the probative value of

the statements is outweighed by the harm or prejudice to

appellant.    See Worden, 603 So.2d at 583.   We find that

appellant's case was not prejudiced by the admission of the

statements.   "Since the questions were set forth in their proper

context, interrogation of a suspected [rapist], we conclude that

a rational jury would understand that law enforcement officers

use many techniques to secure confessions and that the methods

used here were indicative of that."     Id.   Indeed, Ball admitted

on cross-examination that she spoke to Josh for the first time

when she left in the midst of appellant's interrogation.      As

such, the jury was fully aware that Ball's statements concerning

what Josh had told her prior to that point were subterfuge.

Furthermore, appellant's own statements ultimately established

the material facts asserted in the statements he challenges.       By

the end of the interrogation, appellant acknowledged having

struck Chapman at least twice and having spoken to her in a

"mean" tone as he told her to perform oral sex on him.       On all



                                - 7 -
material points, appellant's ultimate statements corroborated

Chapman's testimony.

     The decision of the trial court is accordingly affirmed.

                                                        Affirmed.




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