COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Coleman and Willis 

Argued at Salem, Virginia 

STEPHEN WAYNE MITCHELL 

 OPINION BY 

v. Record No. 0362-96-3 JUDGE JERE M. H. WILLIS, JR. 

 JUNE 24, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF BOTETOURT COUNTY 

George E. Honts, III, Judge 

 Stephen R. Wills (William L. Heartwell, III; 

William L. Heartwell, III, P.C., on briefs), 

for appellant. 

 Eugene Murphy, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 Stephen Wayne Mitchell was convicted in a bench trial of 

proposing an act of sodomy to a juvenile in violation of Code 

§ 18.2-370. He contends on appeal that the trial court erred in 

admitting hearsay testimony concerning the details of the 

offense. We disagree and affirm the conviction. 

 I. 

 The victim, a twelve-year-old boy, testified that he met 

Mitchell, who was fishing along the bank of a creek near a 

trailer park in which they both resided. Mitchell asked the 

victim whether he wanted to make five dollars. The victim 

replied, "no." The victim then asked how he could earn the 

money. Mitchell replied, "Let me suck you." The victim 

testified that he then asked what time it was and ran home. 

Thereupon, he told his older brother, his mother, and her 
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boyfriend what had transpired. 

 Both the victim's mother and his brother testified during 

the Commonwealth's case-in-chief. Upon objection by the defense, 

the trial court did not permit them to relate what the victim had 

told them, but permitted them to testify that the victim had 

complained to them that he had been sexually solicited. 

 After the Commonwealth rested, Mitchell testified that he 

had been misquoted, and had said instead: "All you do is come 

around trying to suck up to me for more money." In rebuttal, the 

Commonwealth recalled the victim's brother. The Commonwealth 

proffered that the brother's testimony would corroborate the 

victim's. Over the defense's objection, the trial court ruled 

that the brother's testimony would be admitted as a report of the 

victim's prior consistent statement. The brother then testified 

as follows: 

 When I first walked in there he started 

telling me that he was down there with Mitch 

. . . okay, he told me that he was down there 

and . . . okay . . . it was . . . [.] 

 Okay, he started, he told me that he was down 

there and they was sitting down there, he was 

sitting down there watching Mitch fish and 

 . . . and then . . . and then I think and 

Mitch pulled out five dollars and like folded 

it up and stuffed it like in his shirt pocket 

. . . and then he asked Ricky, he asked Ricky 

would he, would he like to make five dollars 

and . . . and Ricky said how and . . . and 

then Rick told me that he told Ricky to lay 

back . . . he told Ricky to lay back and to 

let him . . . he told him to lay back and 

 . . . he told him to lay back and let him 

suck him so then, then Ricky asked him what 

time it was and I think he, I think he said 

he either ran home or just came back home. 
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 II. 

 Decisions on the admissibility of evidence lie within the 

trial court's sound discretion and will not be disturbed on 

appeal absent an abuse of discretion. Blain v. Commonwealth, 7 

Va. App. 10, 16, 371 S.E.2d 838, 842 (1989). The issue in this 

case is whether the trial court erred in permitting the victim's 

brother to testify on rebuttal as to out-of-court statements made 

by the victim describing details of the alleged criminal 

solicitation. The trial court admitted the rebuttal testimony of 

the victim's brother as a prior consistent statement by the 

victim. This ruling was error. 

 "As a general rule, a prior consistent statement of a 

witness is inadmissible hearsay." Faison v. Hudson, 243 Va. 397, 

404, 417 S.E.2d 305, 309 (1992). However, evidence of a prior 

consistent out-of-court statement is admissible when the opposing 

party: (1) suggests that the declarant had a motive to falsify 

his testimony and the consistent statement was made prior to the 

existence of that motive, (2) alleges that the declarant, due to 

his relationship to the matter or to an involved party, had a 

design to misrepresent his testimony and the prior consistent 

statement was made before the existence of that relationship, (3) 

alleges that the declarant's testimony is a fabrication of recent 

date and the prior consistent statement was made at a time when 

its ultimate effect could not have been foreseen, or (4) 

impeaches the declarant with a prior inconsistent statement. See
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id. at 404-05, 417 S.E.2d at 309-10. See also 1 Charles E. 

Friend, The Law of Evidence in Virginia § 4-12 (4th ed. 1993). 

In each of these instances, the statement is offered merely to 

show that it was made, rather than as proof of any matter 

asserted. 

 The brother's rebuttal testimony fell within none of the 

carefully delineated exceptions authorizing the admission of 

prior consistent statements. The defense did not suggest that 

the victim had a motive to falsify or a design to misrepresent 

his testimony. It leveled against him no charge of recent 

fabrication. It offered no prior inconsistent statement to 

impeach his testimony. Rather, Mitchell merely testified as to 

his version of the facts and circumstances surrounding the 

alleged solicitation. 

 III. 

 Although the trial court erred in admitting the rebuttal 

testimony of the victim's brother as a prior consistent 

statement, that testimony was properly admissible as a report of 

a recent complaint of sexual assault. Code § 19.2-268.2 

provides: 

 Notwithstanding any other provision of law, 

in any prosecution for criminal sexual 

assault under Article 7 (§ 18.2-61 et seq.) 

of Chapter 4 of Title 18.2, a violation of 

§§ 18.2-361, 18.2-366, 18.2-370 or 

 § 18.2-370.1, the fact that the person 

injured made complaint of the offense 

recently after commission of the offense is 

admissible, not as independent evidence of 

the offense, but for the purpose of 

corroborating the testimony of the 
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complaining witness. 

This statute makes admissible, as an exception to the hearsay 

rule, a recent complaint by the victim of one of the specified 

sexual offenses. Evidence of the victim's out-of-court complaint 

is not admissible as independent evidence of the offense. 

Standing alone, it is insufficient to support a conviction. 

However, it is admissible to corroborate the victim's testimony 

and other independent evidence of the offense. See Woodard v. 

Commonwealth, 19 Va. App. 24, 28, 448 S.E.2d 328, 331 (1994). 

 The "recent complaint" exception embraces only the fact of 

the complaint and not details reported by the victim. Woodard, 

19 Va. App. at 27, 448 S.E.2d at 330. However, the scope of 

admissibility lies within the sound discretion of the trial 

court. Id. Mitchell argues that the content of the brother's 

testimony went beyond reporting that the victim had complained of 

the offense and included inadmissible details, reported to the 

brother by the victim, but outside the scope of the "recent 

complaint" exception. We disagree. 

 The statute recognizes the probative value of the victim's 

recent complaint of a sexual offense. It is unreasonable to 

expect the victim of such an offense, particularly a child, to 

express his report in succinct, technical terms. It is 

consistent with human experience that such a victim will lodge 

his complaint in the form of a description of the event, and in 

that description lies his complaint of the offense. The 
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brother's testimony described such a complaint. It exceeded in 

no significant way a report of the offense. The details of the 

victim's complaint were elements of the offense. Without those 

details, the complaint would have been incomplete. Thus, the 

brother's testimony was properly admitted into evidence as a 

report of the victim's recent complaint of a sexual assault. 

 Because the brother's testimony was properly admissible as a 

report of the victim's recent complaint of a sexual assault, we 

find no error in the admission of that testimony into evidence. 

See Morrissey v. Commonwealth, 16 Va. App. 172, 179, 428 S.E.2d 

503, 507 (1993). The judgment of the trial court is accordingly 

affirmed. 

 Affirmed.