                               COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Beales and Powell
Argued by teleconference


BRIAN CONLEY CABLE
                                                             MEMORANDUM OPINION * BY
v.     Record No. 1960-07-4                                  JUDGE RANDOLPH A. BEALES
                                                                 SEPTEMBER 15, 2009
COMMONWEALTH OF VIRGINIA


                     FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
                          Herman A. Whisenant, Jr., Judge Designate

                 Lorie E. O’Donnell, Public Defender, for appellant.

                 Leah A. Darron, Senior Assistant Attorney General (William C.
                 Mims, Attorney General, on brief), for appellee.


       Brian Conley Cable (appellant) was convicted in a jury trial of aggravated sexual battery of

the twelve-year-old victim, A.D., in violation of Code § 18.2-67.3. Appellant argues on appeal

that the trial court committed reversible error by prohibiting him from attempting to impeach the

victim and her mother (J.D.) on issues that, appellant claims, concerned their motive to fabricate

the aggravated sexual battery allegation. For the following reasons, we disagree with appellant’s

argument and affirm his aggravated sexual battery conviction.

                                          I. BACKGROUND

       “On appeal, ‘we review the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth,

26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App.

438, 443, 358 S.E.2d 415, 418 (1987)); see Riner v. Commonwealth, 268 Va. 296, 330, 601


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
S.E.2d 555, 574 (2004) (viewing the evidence in the light most favorable to the Commonwealth,

“as we must since it was the prevailing party in the trial court”).

       So viewed, the evidence established that appellant and J.D. had lived together for several

years. Appellant and J.D. had one child together, and J.D. had two other children, including

A.D. Appellant and A.D. did not have a good relationship; they had arguments over chores and

yelled at each other “a lot.” The relationship between appellant and J.D. also had become

strained by early 2006. According to J.D., appellant called her “a b*tch” in front of his father,

who lived with them, and appellant was “very mean and rude” to A.D. and her sister. J.D. told

appellant that she planned to return to Indiana, where her family lived, with the children “if

[appellant’s] behavior continued.”

       On a typical day in their household, J.D. left for work before A.D. woke up.

Occasionally, J.D. would return home in the mornings and notice that A.D. and/or her sister were

sleeping with appellant in the bed shared by J.D. and appellant. When J.D. asked him to explain

why he had moved the girls to their bed after she left for work, appellant claimed that he “was

cold and he didn’t feel well and he wanted someone to snuggle” with him.

       On an evening in February 2006, the power went out in the family’s house. In order to

stay warm, J.D. suggested that she and appellant share their bed with the children. A.D. became

visibly upset at this suggestion. She told J.D. that appellant had rubbed her vagina with his

finger on several occasions in that bed. According to the victim, A.D., she would wake up some

mornings in appellant’s bed – having gone to sleep in her own bed the night before – to find

appellant rubbing her vagina over her underwear. She said that appellant wore a short black

nightgown and silky white underwear every time he touched her in this way. A.D. could not

remember exactly how many mornings appellant had rubbed her vagina, but she said it occurred

more than once between the beginning of January 2006 and February 11, 2006.

                                                -2-
       J.D. met with her pastor to discuss the victim’s allegation and decided not to report the

allegation to the police. Instead, on the pastor’s advice, J.D. attempted to establish “some ground

rules” for the household. Under these rules, appellant was not permitted to bring the children

into his bed. 1 Appellant became angry when he was informed of the rules, and he did not abide

by them. He continued to bring the children to his bed in the morning when J.D. was not there.

       J.D. and the children moved back to Indiana in July 2006, and J.D. contacted the local

police there about appellant’s behavior. The Fauquier County authorities learned of the

allegations later that month. 2 During an interview with a police lieutenant, appellant denied the

allegation that he touched the victim’s vagina in a sexual manner, but he also claimed that he

could not remember certain details because he suffered from posttraumatic stress syndrome. He

acknowledged that he could have touched A.D.’s vagina, but, if he did, he did not remember it.

Appellant did admit that he took the children to bed with him “a few times a week.”

       At trial, appellant sought to cross-examine A.D. and J.D. about appellant’s desire to move

the family to Canada; furthermore, appellant sought to cross-examine J.D. about disagreements

they had over how to discipline the children. The Commonwealth objected to these questions as

beyond the scope of direct examination and irrelevant. Appellant contended that the questions

related to the witnesses’ bias against appellant. The trial court sustained the Commonwealth’s


       1
        In addition, appellant – who would enter the bathroom and wash the victim’s hair while
she was showering – was not permitted to wash the girls’ hair anymore. During an interview
with Fauquier County authorities, appellant acknowledged that he washed A.D.’s hair even
though she did not want him to do so.
       2
          A.D. was interviewed by Fauquier police and child protective services on July 24, 2006,
and, the next day, she was evaluated by a sexual assault nurse examiner (SANE nurse) at Fairfax
Hospital. The SANE nurse found no injuries to the victim’s vaginal area, but she testified at trial
that she did not expect to find any since the reported act occurred well more than five days
before the examination, and, after five days had elapsed, it was often not possible to determine if
there had been any such injuries. She also noted that, if there were simply an inappropriate
touching of the vaginal area, as was charged here, there is often no sign of injury.

                                               -3-
objections. 3 Appellant did not proffer the questions that he wanted to ask A.D. and J.D. or the

expected answers to those questions.

       The jury convicted appellant of aggravated sexual battery, and appellant now appeals.

                                           II. ANALYSIS

       Appellant argues that the trial court erroneously prohibited his attempts to impeach A.D.

and J.D. The Commonwealth contends this Court cannot consider the merits of appellant’s

argument because he failed to proffer the expected answers from the witnesses. Furthermore, the

Commonwealth contends that any error at trial was harmless. For the reasons stated below, we

agree with the Commonwealth.

       When an objection is sustained and a party’s evidence is ruled inadmissible, as it was in

this case, “‘the party must proffer or avouch the evidence for the record in order to preserve the

ruling for appeal; otherwise, the appellate court has no basis to decide whether the evidence was

admissible.’” Lockhart v. Commonwealth, 34 Va. App. 329, 340, 542 S.E.2d 1, 6 (2001)

(quoting Smith v. Hylton, 14 Va. App. 354, 357-58, 416 S.E.2d 712, 715 (1992)). Consequently,

this Court “‘will not consider testimony which the trial court has excluded before it was

presented without a proper showing of what that testimony would have been.’” Id. (quoting

Holles v. Sunrise Terrace, Inc., 257 Va. 131, 135, 509 S.E.2d 494, 497 (1999)).

       In Lockhart, a forcible sodomy case involving a young child, defense counsel asked the

victim’s mother on cross-examination whether the victim had any disciplinary problems at

school around the time of the alleged sexual abuse. Id. at 339, 542 S.E.2d at 5. When asked by

the trial court how the question was relevant, defense counsel responded that he sought to ask the

mother whether the victim tended to make excuses for such disciplinary problems. Id. The trial


       3
        Prior to the Commonwealth’s objection during appellant’s cross-examination of A.D.,
she acknowledged that there “had been some discussion about moving to Canada.”

                                               -4-
court sustained the Commonwealth’s objection to this line of questioning, and counsel proceeded

to a different subject in his cross-examination of the mother. Id. On appeal, this Court found

nothing in the record constituted a proper proffer of the evidence rejected by the trial court, and,

without such a proffer, this Court could not “ascertain on appeal whether the evidence Lockhart

sought to introduce was relevant to show that M.B. had a motive to fabricate his testimony.” Id.

at 340, 542 S.E.2d at 6. Therefore, the failure to proffer this evidence, this Court ruled in

Lockhart, precluded appellate review of the alleged error in the trial court.

       Similarly, appellant here did not make a proper proffer of A.D.’s and J.D.’s expected

responses to the cross-examination questions. In the absence of such a proffer, “we are unable to

determine whether the circuit court’s decision to exclude that testimony, if erroneous,

prejudiced” appellant. King v. Cooley, 274 Va. 374, 380, 650 S.E.2d 523, 527 (2007). As an

appellate court, therefore, we have no basis for adjudication of appellant’s claim of trial court

error here. Whittaker v. Commonwealth, 217 Va. 966, 968, 234 S.E.2d 79, 81 (1977).

       Furthermore, if A.D.’s acknowledgement that the family discussed moving to Canada

was considered appellant’s proffer of evidence that A.D. and J.D. had a motive to fabricate, any

conceivable error by the trial court in excluding additional testimony on this issue was harmless.

       On brief, appellant claims that this Court should review the trial court’s evidentiary

rulings strictly as these rulings violated his constitutional rights to confrontation and due process.

However, appellant never contended below that these rulings implicated any constitutional

rights, and, therefore, appellant waived consideration of any constitutional error in this appeal.

See Rule 5A:18; Arnold v. Commonwealth, 4 Va. App. 275, 280, 356 S.E.2d 847, 850 (1987);

see also Taylor v. Illinois, 484 U.S. 400, 406 n.9 (1988).

       Under the non-constitutional harmless error standard that, therefore, we must apply here,

no judgment shall be reversed for error of the trial court “[w]hen it plainly appears from the

                                                -5-
record and the evidence given at the trial that the parties have had a fair trial on the merits and

substantial justice has been reached.” Code § 8.01-678.

               Whether such an error is harmless in a particular case depends
               upon a host of factors, all readily accessible to reviewing courts.
               These factors include the importance of the witness’ testimony in
               the prosecution’s case, whether the testimony was cumulative, the
               presence or absence of evidence corroborating or contradicting the
               testimony of the witness on material points, the extent of
               cross-examination otherwise permitted, and, of course, the overall
               strength of the prosecution’s case.

Sargent v. Commonwealth, 5 Va. App. 143, 154, 360 S.E.2d 895, 903 (1987) (quoting Delaware

v. Van Arsdall, 475 U.S. 673, 674 (1986)).

       Here, even if the trial court had permitted appellant’s cross-examination of A.D. and J.D.,

the witnesses’ responses to these questions, at best, would have been cumulative of other

evidence.

       A.D. and J.D. both readily acknowledged at trial that they did not have good relationships

with appellant in 2006. Appellant reminded the jury of this testimony in closing argument,

claiming that A.D. fabricated the allegation against appellant because she “was annoyed that

[appellant] would get on her case about doing her chores” and contending that J.D. “wanted out

of this relationship” and wanted to move back to Indiana. Certainly, the jury could have fairly

inferred from the evidence admitted at trial that both J.D. and A.D. were unenthusiastic about

moving to Canada with appellant and that the appellant and J.D. had many conflicts over the

children. Therefore, appellant fails to demonstrate that the exclusion of any additional testimony

affected the jury’s determination of whether or not the sexual abuse allegation was fabricated.

See King, 274 Va. at 380, 650 S.E.2d at 527 (holding the exclusion of cumulative testimony

could not have affected the jury’s verdict and, thus, was harmless).

       Notwithstanding the trial court’s evidentiary rulings, appellant was not prevented from

attempting to impeach the credibility of the witnesses by other means. During closing argument,
                                                 -6-
for instance, appellant argued that A.D.’s allegations were not credible because J.D. – the

victim’s own mother – did not call the police, take the child to the doctor, or “pack up her kids

and leave” immediately upon learning of the allegation. However, the jury, as it was entitled to

do, apparently accepted J.D.’s testimony that she acted on the advice of her pastor after learning

of the sexual abuse allegation. See Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d

781, 786 (2003) (“It is the province of the jury to evaluate the credibility of witnesses.”).

       In addition, the prosecution’s case against appellant was very strong. Viewing the

evidence in the light most favorable to the Commonwealth, as we must since it was the

prevailing party below, the evidence at trial established that appellant frequently took A.D. and

her sister from their beds during the morning, placed them in his bed, and “snuggled” with them.

Appellant then later disregarded household rules specifically designed to prohibit this behavior.

Even appellant’s denial of the alleged sexual abuse was equivocal. He admitted to the Fauquier

police that he possibly touched A.D.’s vagina, but he also claimed that he could not remember.

Furthermore, the jury saw A.D. testify and considered very similar evidence allegedly

impeaching her testimony, yet the jury found that she was credible. The strength of the

prosecution’s case reinforces the conclusion that, even if we assume without deciding that the

trial court committed error here, any conceivable error was harmless. On these facts, therefore, it

is plainly apparent that appellant was afforded a fair trial on the merits. See Code § 8.01-678.

                                         III. CONCLUSION

       For the foregoing reasons, we affirm appellant’s conviction for aggravated sexual battery.



                                                                                      Affirmed.




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