                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Bumgardner
Argued at Salem, Virginia


JAMES EDWARD JOHNSON, S/K/A
 JAMES EDWARDS JOHNSON, JR.
                                            MEMORANDUM OPINION * BY
v.   Record No. 3023-00-3               JUDGE RUDOLPH BUMGARDNER, III
                                               FEBRUARY 26, 2002
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
                        Robert M. D. Turk, Judge

             Joseph Graham Painter, Jr.; Scott Weber
             (Painter Weber, on briefs), for appellant.

             Kathleen B. Martin, Assistant Attorney
             General (Randolph A. Beales, Attorney
             General, on brief), for appellee.


     A jury convicted James Edward Johnson of attempted rape,

forcible sodomy, and animate object penetration.      On appeal, he

contends the trial court erred in excluding an overheard

statement offered to contradict a witness by prior inconsistent

statement.     Finding no error, we affirm.

     The thirteen-year-old victim testified the defendant

sexually assaulted her when she spent the night with a friend,

Shamika Bishop.     Shamika lived with her mother (Teresa Bishop),

her mother's boyfriend (the defendant), and her brother (Chris

Bishop).   On cross-examination, the defendant asked the victim

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
if she had ever made the statement to Shamika Bishop, "our

little secret."   The victim denied making that statement.

Shamika testified and corroborated the victim's testimony.    On

cross-examination, the defendant asked her if she had ever said,

"this is our little secret, we've got to keep it."   She denied

making that statement.

     The defense called Teresa Ford as a witness.    She was a

friend and neighbor of the Bishops and had overheard Shamika and

the victim talking on the telephone after the incident.   When

asked to repeat what she had heard, the Commonwealth objected

because it was hearsay.   The defendant proffered that Ford heard

Shamika say: "it's our secret we can't tell nobody," and "well

he's out of the house now, he can't spend no more of our money."

She only heard Shamika's part of the conversation and did not

know the topic of the girls' conversation.

     The trial court sustained the objection and excluded the

statements.   It acknowledged that the defendant could impeach

the witness, "but it has to with something relevant."   Noting

that no evidence indicated the girls were talking about the

incident, the trial court ruled the defendant needed to

establish "some link that they were actually talking about this

particular incident."    Defense counsel conceded he had not laid

a good foundation and responded, "taken by themselves . . . [the

statements] may not mean anything and I agree with your Honor as


                              - 2 -
to relevance."    Shortly thereafter, the defendant excused Ford

as a witness.

     The statement that Ford overheard was offered to impeach

Shamika by showing she made a statement inconsistent with her

testimony at trial.    When the defendant asked Shamika if she had

ever said "our little secret," he raised the issue for the first

time on cross-examination.    Whether he could use extrinsic

evidence to contradict her denial depended on whether the

question elicited a collateral fact.

          "No question respecting any fact irrelevant
          to the issue can be put to a witness on
          cross-examination for the mere purpose of
          impeaching his credit by contradicting him.
          And if any such question be inadvertently
          put and answered the answer of the witness
          will be conclusive . . . . he cannot be
          asked as to any collateral independent fact
          merely with a view to contradict him
          afterwards by calling another witness."

Seilheimer v. Melville, 224 Va. 323, 326-27, 295 S.E.2d 896, 898

(1982) (quoting Allen v. Commonwealth, 122 Va. 834, 842, 94 S.E.

783, 785-86 (1918)).

     If a question calls for a collateral fact, the

cross-examiner must take the witness' answer because

"[e]xtrinsic evidence of collateral statements is not

admissible."     A Guide to Evidence in Virginia Rule 613(a)(ii),

63 (2001); Charles E. Friend, The Law of Evidence in Virginia

§ 4-3(f), 122-23 (5th ed. 1999).       The rule, known as the




                               - 3 -
"collateral facts" rule, is purely a matter of relevance.

Seilheimer, 224 Va. at 327, 295 S.E.2d at 898.

     Whether Shamika had ever uttered the words "our little

secret" bore no relation to the issues at trial.    It was no more

relevant than whether she had ever recited the alphabet.    The

fact that Teresa Ford heard Shamika make the statement "our

little secret" had no purpose other than for contradiction.   At

the time the trial court ruled on the objection, the fact was

irrelevant.   When the trial court made its ruling, it clearly

indicated the statement could become relevant if other evidence

established the topic of the girls' conversation.   The defendant

acquiesced in the ruling. 1

     Later in the trial, Chris Bishop testified that he

overheard a telephone conversation between the victim and

Shamika.   The defendant concedes he did not overhear the same

conversation Teresa Ford overheard.   Chris Bishop testified the

victim said, "Jimmy didn't do nothing to her and that was her

and Shamika's secret."   That testimony impeached the victim by a

prior inconsistent statement.


     1
       The defendant maintains on brief that the statement Ford
overheard provided exculpatory evidence by bolstering his theory
that Shamika and the victim fabricated their testimony against
the defendant. Disregarding the fact the testimony was hearsay
if offered as substantive evidence, it was not admissible as
substantive evidence because it was not relevant when proffered.
Boggs v. Commonwealth, 199 Va. 478, 486, 100 S.E.2d 766, 772
(1957) (irrelevant evidence is not admissible).


                              - 4 -
     Chris Bishop's testimony also served to give essential

definition to the phrase "our little secret" when uttered by the

two girls.   That distinctive definition gave meaning to what

Teresa Ford overheard and connected it to the issues at trial.

However, the defendant never suggested that the trial court

reconsider its earlier ruling and never recalled Teresa Ford to

tender her testimony in light of Chris Bishop's subsequent

testimony.

     The defendant called Teresa Bishop, who also overheard

conversations between the victim and Shamika.    Teresa Bishop

testified that she believed the girls' allegations against the

defendant until she heard two conversations between the victim

and Shamika. 2   The defendant never proffered the content of the

conversation.    As with Chris Bishop's testimony, the defendant

never suggested that the conversations Teresa Bishop overheard

supplied facts that made Teresa Ford's earlier testimony

relevant.

     When the defendant offered the testimony of Teresa Ford, he

offered extrinsic evidence of a collateral fact.    The trial

court did not err in excluding evidence not relevant to the

issues at trial.    The admissibility of evidence is left to the


     2
       In his reply brief, the defendant contends for the first
time that the conversation Teresa Bishop overheard impeached the
girls' credibility. We do not consider this argument for the
first time on appeal. Rule 5A:18.


                              - 5 -
sound discretion of the trial court, and its "ruling will not be

disturbed on appeal absent an abuse of discretion."   Coe v.

Commonwealth, 231 Va. 83, 87, 340 S.E.2d 820, 823 (1986)

(citation omitted).   Accordingly, we affirm the convictions.

                                                   Affirmed.




                             - 6 -
Elder, J., concurring in the result.

     I would hold that the defendant acquiesced in the trial

court's refusal to allow Teresa Ford to testify about two

statements she overheard Shamika Bishop make to the teenaged

victim.   Thus, I would hold that the defendant waived any

objection to the exclusion of this testimony, and I would affirm

the convictions without reaching the merits of the appeal.

     The defendant's theory of the case was that he did not

commit the charged acts and that the victim and Shamika lied

about his actions.   Defense counsel asserted in his opening

statement the evidence would establish that the victim and

Shamika talked about the lie as "their little secret[]" and

discussed "[getting the defendant] out of [the Bishops'

residence]" when Shamika's mother, Teresa Bishop, "threw [him]

out" following the victim's report of sexual abuse.

     When defense counsel cross-examined the victim at trial,

she denied that Shamika made the statement to her over the

telephone that "this is our little secret."   Shamika likewise

denied telling the victim over the telephone that "this is our

little secret, we've got to keep it."   Shamika also denied

telling the victim, "[W]ell, we got [the defendant] out of the

house, he's not going to take any [of] my Mom's money any more."

     When defense counsel attempted to establish through the

testimony of Teresa Ford, the Bishops' neighbor, that Shamika


                             - 7 -
had, in fact, made these statements to the victim, the

Commonwealth objected, and the following exchange took place

outside the presence of the jury:

               THE COURT: I guess the concern I've
          got[, defense counsel,] is even if [Shamika]
          made those statements[,] what were those
          statements in reference to, I mean there's
          been no testimony that [Shamika and the
          victim] were discussing this particular
          incident at the time that [Teresa Ford]
          overheard, and I don't know whether [Ford]
          can state that or not because obviously I
          don't think she heard [the victim] on the
          other end of the phone.

               [DEFENSE COUNSEL]: I understand
          . . . . I have done a poor job establishing
          [a] foundation . . . .

                . . . .

               THE COURT: . . . [Y]ou can impeach
          . . . , but it has to be with something
          relevant[,] and I don't think that you can
          establish the relevancy unless there is some
          link that they were actually discussing this
          particular incident at the time those two
          statements were made.

               [DEFENSE COUNSEL]: I can ask [Ford]
          the questions[,] Your Honor, maybe I can
          establish, I think I can establish
          relevance.

     Defense counsel proffered through examination of Ford that

Ford heard Shamika say, during a telephone conversation with the

victim, "[it's] our secret[,] we can't tell nobody," and

"well[,] he's out of our house now, he can't spend no more of

our money."   Defense counsel then inquired if "[Ford] hear[d]



                             - 8 -
anything in that conversation that led [her] to believe [the

victim and Shamika] were talking about their allegations

[against the defendant]," saying "I'm trying to see if there was

a link that why . . . these statements stand out in her mind, I

mean taken by themselves they may not mean anything and I agree

with Your Honor as to relevance."    (Emphasis added).   Thus,

defense counsel agreed, whether correctly or erroneously, that

Ford's testimony about Shamika's statements was irrelevant and

inadmissible unless Ford could provide specific testimony

connecting the statements to the victim's allegations of sexual

abuse.

     The court then questioned Ford about whether she could

"hear [the victim] on the other line" during that conversation

or whether she could "hear what [Shamika and the victim] were

talking about."   Ford indicated that she heard only the

statements Shamika had made, to which Ford already had

testified.   Defense counsel then said, "I think I have a witness

that can," referring to a witness who could testify about the

victim's responses to Shamika's statements in order to give them

the context he and the trial court believed was necessary to

establish their relevance.   The trial court then sustained the

Commonwealth's objection to the admissibility of Ford's

testimony without opposition from defense counsel, who said he

would "not go into those statements."   Thus, assuming without


                             - 9 -
deciding that the ruling was erroneous, defendant's counsel

acquiesced in that ruling.     See, e.g., Spruill v. Commonwealth,

221 Va. 475, 478-79, 271 S.E.2d 419, 421 (1980) (holding

defendant "acquiesced in the court's [ruling that a specific

clinical psychologist was not qualified to give the opinion

proffered] by responding, 'Very well' to the court's statement

and by saying he would not 'pursue' the issue but would call the

psychiatrist as a witness" in lieu of the psychologist).

     The defendant subsequently offered testimony from Shamika's

brother, Chris Bishop, about a telephone conversation he

overheard between Shamika and the victim.    In that conversation,

the victim told Shamika "that [the defendant] didn't do nothing

to her and that was her and Shamika's secret."    Chris testified

that he was listening on an extension and heard the statements

and responses of both girls.    The evidence established that this

conversation could not have been the one Ford overheard, because

it took place on a telephone at the Bishop residence, whereas

the conversation Ford overheard took place on a telephone at

Ford's residence.   Thus, the defendant did not attempt to use

Chris's testimony to provide a foundation for Ford's previously

excluded testimony.

     The defendant also offered testimony from Shamika's mother,

Teresa Bishop.   She testified that she believed Shamika's and

the victim's allegations "until [she] heard a conversation on


                               - 10 -
the telephone," and she subsequently testified that she

overheard her daughter's conversation "on two different

occasions."   Defense counsel did not attempt to elicit any

further details about the two conversations, such as what

Shamika said or to whom Shamika was speaking.   Defense counsel

also did not attempt to use Teresa Bishop's testimony to provide

a foundation for Ford's previously excluded testimony.

     The defendant offered no additional testimony about

Shamika's and the victim's conversations and made no additional

attempt to present to the jury Ford's testimony about Shamika's

statements.

     For these reasons, I would hold that the defendant

acquiesced in the trial court's ruling excluding Ford's

testimony about Shamika's statements, and I would affirm the

defendant's convictions without reaching the merits of the

appeal.   Therefore, I concur in the result.




                             - 11 -
Benton, J., dissenting.


     The evidence proved that James Johnson lived in the

residence of Teresa Bishop, his romantic friend, and that

Bishop's daughter was the friend of the teenage girl who made

the complaint of sexual abuse.   On the night in question, the

teenager stayed overnight at Bishop's residence and slept in the

living room with Bishop's daughter on a sofa that was converted

into a bed.   The morning after the alleged incident, Bishop

awoke both girls.    Bishop testified the girls "were just fine,

talking, laughing in the car" when she took them to school that

morning.   They made no complaint to her.

     On direct examination, the teenager testified that after

Johnson was arrested, she had an in-person conversation with

Bishop's daughter.   On cross-examination, the teenager admitted

she also had telephone conversations "maybe two times" with

Bishop's daughter after Johnson had been arrested.   The teenager

denied discussing with Bishop's daughter in those telephone

conversations that "this is our little secret."

     Bishop's daughter testified on cross-examination that she

talked to the teenager every day by telephone for eight months

after Johnson's arrest.   She denied saying to the teenager in a

telephone conversation that "this is our little secret."

Although she admitted talking to the teenager from the telephone

in Teresa Ford's residence when her brother and Ford were


                               - 12 -
present, she denied saying to the teenager that they had gotten

Johnson out of her mother's house and that Johnson would not

take any more of her mother's money.

        Johnson's theory of the case was that the girls concocted

their story of sexual abuse.    He testified that he had not

touched either the teenager or her friend in any sexual way.       He

acknowledged passing through the living room where they slept

when he came home at 3:00 a.m.    He testified, however, that the

passage in the living room of the mobile home is so narrow that

he likely bumped the converted sofa bed as he passed through the

room.    In her testimony, the teenager confirmed that when the

sofa opens to a bed the passage is "about two and a half feet."

        Johnson's witness, Teresa Ford, resides next to Bishop's

residence.    She testified that Bishop's daughter often came to

her residence to receive telephone calls from the teenager or to

make telephone calls to the teenager.    Ford testified that on

one occasion, when the teenager called and spoke to Bishop's

daughter, she heard Bishop's daughter's conversation.    The

prosecutor objected when Ford sought to testify that Bishop's

daughter said in the telephone conversation, "its our secret we

can't tell nobody" and "he's out of our house now he can't spend

no more of our money."    The prosecutor argued that the testimony

was hearsay.    Johnson contended, however, that he was entitled

to impeach the teenager and Bishop's daughter by Ford's



                                - 13 -
testimony.   The trial judge sustained the prosecutor's

objection.

     The Commonwealth argued at trial that the testimony was

hearsay.   Now on appeal, the Commonwealth abandons that claim

and argues, for the first time, only that Johnson failed to lay

a proper foundation for the testimony. 3    Because the Commonwealth

made no objection at trial that the proper foundation was not

laid, we are limited to the issue presented at trial and ruled

on by the judge, i.e., whether the evidence was hearsay.      See

Eason v. Eason, 204 Va. 347, 352, 131 S.E.2d 280, 283 (1963);

Driscoll v. Commonwealth, 14 Va. App. 449, 452, 417 S.E.2d 312,

313-14 (1992).

     Notwithstanding the prosecutor's failure to assert this

issue at trial, the evidence clearly established that the

foundation was sufficient and proper.      The Commonwealth

acknowledges the following rule applies to this case:


     3
       The Commonwealth also does not contend that Johnson's
attorney acquiesced in the trial judge's refusal to allow Ford
to testify about the statements she overheard. Indeed, the
record establishes that when Johnson's attorney said that he
"agree[d] with [the judge] as to relevance," he was making a
proffer of Ford's testimony. He made that statement as a
response to the prosecutor's further objection that Ford's
proffered testimony should be limited because "that calls for
speculation." After that exchange, the trial judge questioned
Ford and then ruled that "[b]ased upon the Commonwealth's
objection I will sustain the objection." The trial judge
certainly did not consider Johnson's attorney's response to the
prosecutor's objection to be an acquiescence in a comment the
judge made before he heard the proffer. In view of the manner
in which the record developed, we have no basis to preclude this
issue by invoking Rule 5A:18.

                              - 14 -
                It is fundamental to the right of
             cross-examination that a witness who is not
             a party to the case on trial may be
             impeached by prior statements made by the
             witness which are inconsistent with his
             present testimony, provided a foundation is
             first laid by calling his attention to the
             statement and then questioning him about it
             before it is introduced in evidence.

Pugh v. Commonwealth, 233 Va. 369, 374, 355 S.E.2d 591, 594

(1987).    When testimony is offered for this purpose, it is not

hearsay.     Id. at 374, 355 S.E.2d at 595.

        The rejected testimony of Ford was offered for the purpose

of impeachment.    Johnson's attorney questioned both girls and

gave them an opportunity to admit or deny the statements.

Clearly, Ford's testimony was admissible to impeach the

testimony of both girls so as to assist the jury in reaching a

determination founded on truth.

        The majority opinion rules, however, that Ford's testimony

impeaches the witness by a collateral fact.    This issue, which

also was not raised by the Commonwealth at trial or on this

appeal, is not properly before us.       Id.

        Moreover, Ford's testimony does not raise a collateral

fact.

                A fact is wholly collateral to the main
             issue if the fact cannot be used in evidence
             for any purpose other than for
             contradiction. "Evidence of collateral
             facts, from which no fair inferences can be
             drawn tending to throw light upon the
             particular fact under investigation, is
             properly excluded for the reason that such
             evidence tends to draw the minds of the jury

                                - 15 -
           away from the point in issue, to excite
           prejudice and mislead them." . . .
           Spurlin, Administratrix v. Richardson, 203
           Va. 984, 990, 128 S.E.2d 273, 278 (1962).
           Conversely, if the evidence tends, even
           slightly, to throw light upon the main fact
           in issue, it is not collateral, but
           probative. Every fact, however remote or
           insignificant, that tends to establish the
           probability or improbability of a fact in
           issue, is admissible. Stamper v.
           Commonwealth, 220 Va. 260, 269, 257 S.E.2d
           808, 815 (1979). See also Railway Company
           v. Golladay, 164 Va. 292, 309, 180 S.E. 400,
           407 (1935). As Professor Friend points out,
           the "collateral facts" rule is purely a
           question of relevancy. C. Friend, The Law
           of Evidence in Virginia, § 137 (1977). See
           Hemming v. Hutchinson, 221 Va. 1143, 1146,
           277 S.E.2d 230, 233 (1981).

Seilheimer v. Melville, 224 Va. 323, 327, 295 S.E.2d 896, 898

(1982).

     Johnson's theory is that the girls fabricated their

testimony to cause him to be removed from Bishop's residence.

On direct examination by the prosecutor, the teenager implied

she had limited contact with Bishop's daughter after Johnson's

arrest.   The questions posed to the teenager and Bishop's

daughter were probative of fabrication and, thus, cannot be

excluded under the doctrine of collateral facts.   Ford's

testimony that Bishop's daughter told the teenager that "its our

secret we can't tell nobody" and "he's out of our house now, he

can't spend no more of our money" clearly is not collateral to

the issue in the case.   The exposure of fabrication and

collusion by witnesses is designed to "assist the finder of fact


                              - 16 -
in its quest to ascertain the truth."   Motley v. Tarmac Am.,

Inc., 258 Va. 98, 102, 516 S.E.2d 7, 9 (1999).   Proof that two

witnesses colluded to lie about the facts of a case is always

germane.   "There is no gainsaying that arriving at the truth is

a fundamental goal of our legal system."   United States v.

Havens, 446 U.S. 620, 626 (1980).

     The Commonwealth further argues that in any event, the

exclusion of Ford's testimony was harmless error.   It points to

the testimony of Johnson's witness, Chris Bishop, who is

Bishop's minor son.   He was on the telephone when the teenager

and Bishop's daughter talked, and he heard their conversation.

He testified the teenager said to Bishop's daughter that Johnson

"didn't do nothing to her and that it was [the teenager's] and

[Bishop's daughter's] secret."

     Non-constitutional error is harmless only "[w]hen it

plainly appears from the record and the evidence given at the

trial" that the error did not affect the jury's sentence.     Code

§ 8.01-678.

           But if one cannot say, with fair assurance,
           after pondering all that happened without
           stripping the erroneous action from the
           whole, that the judgment was not
           substantially swayed by the error, it is
           impossible to conclude that substantial
           rights were not affected. . . . If so, or
           if one is left in grave doubt, the
           conviction cannot stand.

Clay v. Commonwealth, 262 Va. 253, 260, 546 S.E.2d 728, 731-32

(2001).

                              - 17 -
     The erroneous exclusion of evidence raises concerns about

the jury's truth finding function.     We have said that the

admission of "[o]ther evidence of a disputed fact, standing

alone, does not establish that an error is harmless."     Hooker v.

Commonwealth, 14 Va. App. 454, 458, 418 S.E.2d 343, 345 (1992).

Ford's testimony, if believed by the jury, tended to impeach the

testimony of both girls.   Although the jury apparently

considered and rejected the testimony of Chris Bishop, we cannot

say that the jury would have rejected Ford's testimony.       Ford's

testimony was less susceptible to being viewed, as Bishop's

son's might have been, as subject to the influence of Bishop,

who was Johnson's romantic friend.     Moreover, her testimony was

qualitatively different and more significant than the evidence

that was admitted.   Ford's testimony intrinsically establishes

both impeachment and a motive bearing on the impeached

testimony.   Error is not harmless when "the disputed testimony

may well have affected the jury's decision."     Cartera v.

Commonwealth, 219 Va. 516, 519, 248 S.E.2d 784, 786 (1978).

     I would hold that the trial judge erred in sustaining the

prosecutor's objection that the evidence was hearsay.

Accordingly, I would reverse the convictions and remand for a

new trial.




                              - 18 -
