COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Bumgardner 

Argued at Salem, Virginia 

ROY T. HUTCHISON 

 MEMORANDUM OPINION* BY 

v. Record No. 0131-97-3 JUDGE RUDOLPH BUMGARDNER, III 

 APRIL 28, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF CRAIG COUNTY 

Duncan M. Byrd, Jr., Judge 

 Michelle T. Gibson (Harvey S. Lutins; 

Gordon H. Shapiro; Jonathan S. Kurtin; 

Lutins, Shapiro & Kurtin, on brief), for 

appellant. 

 H. Elizabeth Shaffer, Assistant Attorney 

General (Richard Cullen, Attorney General, on 

brief), for appellee. 

 Roy T. Hutchison was convicted at a bench trial of rape of a 

female under the age of thirteen years. The defendant claims 

that the trial court erred in admitting the victim's hearsay 

statements under the recent complaint exception to that rule. We 

find that any error was harmless and affirm the conviction. 

 The indictment charged that the rape occurred between July 

1989 and July 1994. At the time of the trial, July 1997, the 

victim was seventeen. She testified that the defendant, who was 

her uncle, had touched her vagina and breasts and had placed his 

penis in her vagina about ten different times. The first time 

was when she was eleven years old and in the fourth grade. This 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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occurred at her grandmother's home where the defendant lived. 

 The victim first made a complaint in 1995 to her school 

counselor. She told the counselor that the first rape occurred 

when she was in the third grade. The episodes had continued 

until that May and also included digital penetration of her 

vagina and anus, forced oral sex, and threats if she ever told 

anyone. On cross-examination, the victim testified that her 

cousin had seen one incident. 

 The victim's cousin, sixteen at trial, testified that she 

saw the defendant rape the victim. John Young, a long time 

acquaintance of the defendant, testified the defendant told him 

he had sexual relations with the victim. The statement was an 

unsolicited one before the defendant had been accused of 

anything. The defendant admitted to the sheriff's department 

that he had put his penis in the victim on three occasions. At 

trial he denied making that statement or having had any improper 

relations with the victim. 

 The defendant complains that the statements of the victim to 

the counselor should not have been admitted because they were not 

made recently after the commission of the offense. The recent 

complaint of rape exception to the hearsay rule was expanded in 

its application and then enacted as Code § 19.2-268.2. Early 

cases indicated that the complaint needed to be made soon after 

the rape. See Pepoon v. Commonwealth, 192 Va. 804, 810, 66 

S.E.2d 854, 858 (1951). Later cases held that delay in making 

the report should not control its admissibility but should be a 
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factor bearing on the weight to be given the evidence. See

Herron v. Commonwealth, 208 Va. 326, 330, 157 S.E.2d 195, 198 

(1967). 

 Timeliness of the complaint bears on the exercise of the 

discretion vested in the trial court in deciding whether to admit 

it. Thereafter, timeliness is a factor considered by the trier 

of fact in weighing the evidence. See Woodard v. Commonwealth, 

19 Va. App. 24, 27, 448 S.E.2d 328, 330 (1994); Terry v. 

Commonwealth, 24 Va. App. 627, 634-35, 484 S.E.2d 614, 617-18 

(1997). It is a question of weight rather than admissibility. 

See Lindsey v. Commonwealth, 22 Va. App. 11, 16, 467 S.E.2d 824, 

827 (1996). We find that the trial court did not abuse its 

discretion in admitting the statement though it was made long 

after the event. 

 The defendant also complains that the trial court erred in 

admitting details of the statement made to the school counselor 

rather than just the fact of the complaint. We find that any 

error made in admitting more detail than permitted was harmless. 

 The evidence of other witnesses independent of anything the 

school counselor attributed to the victim clearly established 

everything contained in that statement. "Even though testimony 

is objectionable as hearsay, its admission is harmless error when 

the content of the extra-judicial declaration is clearly 

established by other competent evidence." Schindel v. 

Commonwealth, 219 Va. 814, 817, 252 S.E.2d 302, 304 (1979). 

 Although the trial court may have erred in admitting details 
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of the victim's statement, the defendant is entitled to a 

reversal of his conviction only where the "improper evidence 

suggests a manifest probability that it was prejudicial to the 

defendant." Rider v. Commonwealth, 8 Va. App. 595, 600, 383 

S.E.2d 25, 27 (1989). "An error does not affect a verdict if a 

reviewing court can conclude, without usurping the jury's fact 

finding function, that, had the error not occurred, the verdict 

would have been the same." Lavinder v. Commonwealth, 12 Va. App. 

1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc). 

 Considering that the victim's cousin observed the defendant 

rape the victim, the defendant confessed to law enforcement that 

he had inserted his penis in the victim on three occasions, and a 

long time acquaintance of the defendant testified that the 

defendant had told him that he had sexual relations with the 

victim, we find no reversible error by the admission of the 

challenged evidence. Upon review of the entire record, any error 

was "inconsequential when viewed in comparison to the 

overwhelming evidence of [the defendant's] guilt." Hanson v. 

Commonwealth, 14 Va. App. 173, 176, 416 S.E.2d 14, 16 (1992). 

 We affirm the conviction of the defendant. 

 Affirmed.