COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Annunziata and Senior Judge Hodges 

Argued at Norfolk, Virginia 

DAVID G. LINDSEY 

v. Record No. 0088-95-1 OPINION BY 

 JUDGE ROSEMARIE ANNUNZIATA 

COMMONWEALTH OF VIRGINIA MARCH 12, 1996 

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON 

Walter J. Ford, Judge 

 Charles E. Haden for appellant. 

 Robert B. Beasley, Jr., Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 The appellant, David G. Lindsey ("Lindsey"), was tried by 

the court on three counts of statutory rape. The court convicted 

Lindsey on one count and sentenced him to forty-five years 

imprisonment, with thirty-three years suspended. On appeal, 

Lindsey argues that the trial court erred in (1) admitting into 

evidence a complaint of rape made approximately two years after 

the alleged incident; and (2) allowing the witness to relate 

details of the complaint as described by the victim. Finding no 

error, we affirm the conviction. 

 Thirteen-year-old N.D. testified that Lindsey raped her 

sometime between July and September 1991 when she was eleven 

years old. Lindsey was N.D.'s basketball coach during that time. 

 N.D. testified that Lindsey picked her up from her house to take 

her to basketball practice. She further testified that Lindsey 

took her instead to his house where he engaged in sexual 
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intercourse with her. Lindsey testified in his own defense and 

denied the allegations. 

 N.D. remained silent about the alleged rape until she told 

her friend, Latoya M., approximately two years after the alleged 

offense. N.D. said she had been too frightened to tell her 

mother about the incident. 

 At trial, the Commonwealth asked Latoya what N.D. had told 

her about what had happened between N.D. and Lindsey. Lindsey 

objected, stating that the question called for hearsay. The 

court ruled that the statement was admissible as the "first 

outcry" in a rape, stating, however, that it would not allow the 

Commonwealth to elicit a "long dissertation." Latoya then 

testified that the two girls were at a school carnival sometime 

in the middle of the 1993 school year when N.D. told her that 

Lindsey had raped her. On cross-examination, Latoya testified 

that N.D. told her that the rape occurred at the appellant's 

house. On redirect, Latoya testified without objection that N.D. 

told her she had been at the appellant's house because he was 

dropping her off after basketball practice. 

 N.D.'s mother first learned of the alleged rape in 1994, 

upon finding a note written by her daughter describing the event. 

 Assigned to write on the topic of happiness or sadness, N.D. 

wrote about the alleged rape. However, N.D. placed the writing 

in her pocket instead of turning it in to her teacher. After 

finding the note, N.D.'s mother contacted the police. 
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 The complaint made by a rape victim has long been considered 

an expected and natural expression of the victim's feelings in 

response to the offense. See, e.g., Haynes v. Commonwealth, 69 

Va. (28 Gratt.) 942, 947 (1877). The complaint is a relevant 

circumstance in determining the complainant's credibility, on the 

theory that the failure to bring a complaint raises suspicion and 

doubt about the truth of the report. See Willis & Bell v. 

Commonwealth, 218 Va. 560, 563-64, 238 S.E.2d 811, 813 (1977); 4 

Wigmore, Evidence § 1135, at 298-99 (Chadbourne rev. 1972). As 

such, "under a rule unique to rape trials, evidence of an out-ofcourt complaint by a victim is admissible, not as independent 

evidence of the offense, but as corroboration." McManus v. 

Commonwealth, 16 Va. App. 310, 312, 429 S.E.2d 475, 475-76 

(1993); Cartera v. Commonwealth, 219 Va. 516, 518, 248 S.E.2d 

784, 786 (1978). The rule applies even where "the victim's 

consent is not a defense to the charge of rape." McManus, 16 Va. 

App. at 312, 429 S.E.2d at 476. When offered for the purpose of 

corroborating the victim's complaint, the details of the alleged 

rape are not admissible. See, e.g., Cartera, 219 Va. at 519, 248 

S.E.2d at 786. 

 Lindsey contends that the trial court erred in admitting the 

complaint as evidence corroborating the alleged rape in this case 

because the complaint was made approximately two years after the 

alleged incident. Indeed, admission of such evidence has often 

been predicated on establishing that the complaint was recent, 
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reflecting the rule's historical roots in the rule of 

"hue-and-cry" and its requirement for "fresh complaint." 

Wigmore, supra, at 298, 301. Early Virginia case law described 

the rule as allowing "complaint of the outrage [made] soon after 

its commission." Pepoon v. Commonwealth, 192 Va. 804, 810, 66 

S.E.2d 854, 858 (1951); see also Haynes, 69 Va. (28 Gratt.) at 

947 (describing rule as requiring victim to "at once make 

complaint, or . . . be suspected of consent"); Brogy v. 

Commonwealth, 51 Va. (10 Gratt) 722, 725-26 (1853) (describing 

rule admitting "recent complaint"). 

 However, the rule admitting an out-of-court complaint of 

rape to negative a victim's silence is an exception to 

the hearsay rule which is not to be confused with the 

rule permitting hearsay under the res gestae of the 

event. See Haynes, 69 Va. (28 Gratt.) at 948. Under 

the res gestae exception to the hearsay rule, the lapse 

of time between the event and the report is critical to 

the report's admission. See, e.g., Harris v. 

Commonwealth, 8 Va. App. 424, 430, 382 S.E.2d 292, 295 

(1989).1

 To impose a similar requirement to admit an 

 

 1 The admissibility of an out-of-court complaint of rape 

evidences a history which is "unusually complicated in principles 

and confused in precedents," because three distinct general 

principles govern its admission. Wigmore, supra, at 297-98. In 

addition to the rule admitting a complaint to negative a victim's 

silence, such evidence may be admitted as a prior consistent 

statement to rehabilitate an impeached witness or as a res gestae

declaration. Wigmore, supra, at 311-13. Each of the three 

principles governing admissibility differs in the foundation 

required and the scope of the evidence to be admitted. Id. at 
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out-of-court complaint as corroborative evidence 

ignores the purpose of such evidence. 

 [I]f it be considered that the purpose of the 

evidence [of an out-of-court complaint of 

rape] is merely to negative the supposed 

silence of the woman, it is perceived that 

the fact of complaint at any time should be 

received. After a long delay, to be sure, 

the fact is of trifling weight, but it 

negatives silence, nevertheless, and the 

accompanying circumstances must determine how 

far the delay has been successfully explained 

away. 

Wigmore, supra, at 302-03. 

 Citing Wigmore, the Virginia Supreme Court adopted this 

rationale and established the modern rule. Herron, 208 Va. at 

330, 157 S.E.2d at 198 (1967) (citing 4 Wigmore, Evidence 1135, 

at 222 (3rd ed. 1940)). The Supreme Court held that the "delay 

in making a report . . . should bear upon the weight to be given 

the evidence, not its admissibility." Id. Thus, while the lapse 

of time between the alleged event and the report is certainly an 

issue, it is a question of weight rather than of admissibility. 

"[T]he accompanying circumstances must determine how far the 

delay has been successfully explained away." Wigmore, supra, at 

(..continued) 

297-314 passim. For example, where the complaint is offered to 

negative silence, only the fact of the complaint is admissible; 

neither the details of the offense or a description of the 

assailant may be admitted. See, e.g., Cartera, 219 Va. at 

518-19, 248 S.E.2d at 786; Wigmore, supra, at 306-07. If the 

evidence is offered either to rehabilitate an impeached witness 

or under the res gestae exception to hearsay, the details may be 

admissible. Wigmore, supra, at 311-14. Furthermore, as noted in 

the text, under the res gestae exception, the timeliness of the 

report is critical to its admissibility. 
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303; see also Willis & Bell, 218 Va. at 563, 238 S.E.2d at 813; 

Corvin v. Commonwealth, 13 Va. App. 296, 299, 411 S.E.2d 235, 237 

(1991). 

 In this case, testimony of the victim's complaint was 

properly admitted; the issue of the two-year delay was one of 

credibility properly left to the trier of fact. Furthermore, 

contrary to Lindsey's contention, the witness did not improperly 

relate the details of the offense. The witness testified that, 

while attending a school carnival, she and the complaining 

witness encountered Lindsey, whom both the victim and witness 

knew, and the victim told her that Lindsey had raped her. The 

recitation of these facts does not constitute a discussion of the 

details of the rape or a description of the assailant within the 

meaning of Cartera. 

 Testimony about where the rape occurred was elicited by the 

appellant on cross-examination and, therefore, cannot be cause 

for complaint. See Fisher v. Commonwealth, 236 Va. 403, 417, 374 

S.E.2d 46, 54 (1988), cert. denied, 490 U.S. 1028 (1989). The 

defense opened the door to this line of inquiry, entitling the 

Commonwealth to make further inquiry on redirect examination. 

Furthermore, the appellant failed to object to the question asked 

on redirect, waiving his right to raise the issue on appeal. 

Rule 5A:18; Knight v. Commonwealth, 18 Va. App. 207, 216, 443 

S.E.2d 165, 170 (1994). 

 Accordingly, we affirm the decision of the trial court. 
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Affirmed.