                               COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Bumgardner and Frank
Argued at Salem, Virginia


RICHARD FREDERICK MOTT, S/K/A
RICHARD FREDRICK MOTT
                                                             MEMORANDUM OPINION* BY
v.     Record No. 0058-03-3                                JUDGE RUDOLPH BUMGARDNER, III
                                                                  DECEMBER 16, 2003
COMMONWEALTH OF VIRGINIA


                    FROM THE CIRCUIT COURT OF TAZEWELL COUNTY
                                Henry A. Vanover, Judge

                 C. Eric Young (C. Eric Young, P.C., on brief), for appellant.

                 Leah A. Darron, Assistant Attorney General (Jerry W. Kilgore,
                 Attorney General, on brief), for appellee.


       A jury convicted Richard Frederick Mott of rape, Code § 18.2-61. He maintains the trial

court denied him the right to cross-examine the victim regarding her sexual activity before or

after the offense.1 Finding no error, we affirm.

       The 12-year-old victim testified the defendant raped her while she visited her friend. The

defendant was the boyfriend of the friend’s mother. The victim denied she had sexual

intercourse before the incident. A doctor examined her when she reported the assault

approximately two months later. The doctor determined her hymen was broken and diagnosed a

vaginal infection usually caused by sexual intercourse. At trial, the doctor testified the victim




       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       1
        The defendant also maintains he was denied the right to effective assistance of counsel.
We will not consider an argument raised for the first time on appeal. Rule 5A:18.
told him she was on her knees facing away from the defendant during the rape. That testimony

conflicted with the victim’s earlier testimony that she had been facing the defendant.

        At the close of the Commonwealth’s case-in-chief, the defendant made a motion to strike

the evidence arguing the victim was not credible. While arguing the motion, the defendant

“ask[ed] permission to cross examine her” on the inconsistency between her trial testimony and

the statement she made to the doctor about the direction in which she faced. The defendant

conditioned the request on whether the trial court relied upon the doctor’s testimony to bolster

the victim’s credibility. The trial court denied the request and overruled the motion.

        The defendant presented evidence, but did not call the victim as a witness. At the close

of the defendant’s case, he renewed his motion to strike. Two months after the verdict was

returned, the defendant filed a motion to vacate and grant a new trial alleging he “was not

permitted to cross examine witnesses against him regarding relevant, probative facts introduced

by the Commonwealth.” The trial court denied the motion and noted, “At no time . . . has any

evidence been proffered as to any prior sexual activity by the complaining witness or any

evidence that might be admissible on behalf of the defendant under the rape shield statute.”

        A motion to strike is “an attack upon the sufficiency of the evidence presented.” Charles

E. Friend, The Law of Evidence in Virginia § 1.4(C), at 12 (6th ed. 2003). See also Burks

Pleading and Practice § 284 (4th ed. 1952). On a motion to strike, the trial court is limited to

reviewing the sufficiency of the evidence. Cf. William Poole v. Commonwealth, 211 Va. 258,

260, 176 S.E.2d 821, 823 (1970) (admissibility of evidence may not be considered in motion to

strike). A conditional request made during an argument on a motion to strike is not the proper

place to move to recall a Commonwealth’s witness and reopen cross-examination of that witness.

Even if it were, the trial court did not err in denying the request in this instance.




                                                 -2-
       “[A] party has an absolute right to cross-examine his opponent’s witness on a matter

relevant to the case, which the opponent has put in issue by direct examination of the witness.”

Friend, supra § 3.8, at 112. The defendant fully cross-examined the victim and the doctor after

their direct examinations. He had a copy of the doctor’s office notes when he did cross-examine

them. While he contends he was denied the right to cross-examine, the defendant was denied, at

most, the opportunity to recall the victim to address points not previously recognized or

appreciated. After a witness has been subjected to cross-examination, the trial court has

discretion to allow or disallow further questioning. Shanklin v. Commonwealth, 222 Va. 862,

864, 284 S.E.2d 611, 612 (1981). The trial court did not abuse its discretion by denying renewed

cross-examination.

       Though the court did not permit reopening the Commonwealth’s case for further

cross-examination of the victim, the defendant had the opportunity to call the victim as his own

witness. He could have requested to examine her under the rules applicable to

cross-examination. Code § 8.01-401; see Mastin v. Theirjung, 238 Va. 434, 440, 384 S.E.2d 86,

89 (1989) (permissible to recall witness as adverse witness during rebuttal). The defendant

elected not to do so.

       The defendant argues the inconsistency in the victim’s and doctor’s testimony raised a

“strong inference” that the victim had engaged in another sexual encounter. He maintains such

evidence would have provided an alternative explanation for the victim’s injury. The defendant

concedes the rape shield law, Code § 18.2-67.7, controlled introduction of any evidence that the

victim had other sexual activity. As the trial court noted, the defendant failed to proffer any

evidence of sexual acts in which the victim engaged. A proper proffer would be an avowal or

stipulation of the “testimony expected.” Whittaker v. Commonwealth, 217 Va. 966, 969, 234

S.E.2d 79, 81 (1977).

                                                -3-
       The defendant maintains Neeley v. Commonwealth, 17 Va. App. 349, 358, 437 S.E.2d

721, 726 (1993), permitted him to offer evidence that provided an alternative explanation of the

physical evidence reported by the doctor. Neeley held the rape shield law did not exclude

evidence that rebutted the Commonwealth’s assertion that the defendant was the source of a hair

found in the victim’s cervix. However, Neeley proffered testimony that could have provided an

alternate explanation of the Commonwealth’s evidence. In this case, the defendant made no

proffer of the expected testimony that could have rebutted the Commonwealth’s evidence of

rape. Without a proper proffer, we do not address the argument. O’Dell v. Commonwealth, 234

Va. App. 672, 697, 364 S.E.2d 491, 505 (1988).

       For the reasons stated, we affirm the conviction.

                                                                                       Affirmed.




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