COURT OF APPEAL S OF VIRGINIA

Present: Chief Ju dge Fitzpatrick, Judges Bumgardner and Frank Argued at Salem, Virginia

JESSE DONALD RICHARDSON, S/K/A JESSE DONALD RICHARDSON, JR. OPINION BY v. Record No. 0143-03-3 CHIEF JUDGE JOHANNA L. FITZPATRICK JANUARY 13, 2004 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF HENRY COUNTY David V. Williams, Judge Joseph R. Winston, Special Appe llate Counsel (Public Defender Commission, on briefs), for appellant. Virginia B. Theisen, Assistant Atto rney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Jesse Donald Richardson (appellant) appeal s his conviction by a jury of aggravated sexual battery under Code § 18.2-67.3. 1 At trial, appellant s ought to attack the victim’s credibility by introducing evidence th at the victim made prior false allegations of sexual assault. The sole issue on appeal is whether the trial court abused its discretion in finding inadmissible evidence of alleged prior false allegations by th e victim. We hold that the trial court did not abuse its discretion because appellant failed to pr ovide a sufficient proffer to allow the trial court to make the requisite threshold determination that a reasonable probability of falsity existed. Thus, we affirm the conviction.

1 Appellant was also charged with statutory rape under Code § 18.2-61, and was acquitted of that charge at trial.- 2 - I. BACKGROUND Under familiar principles of ap pellate review, we examine the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. See Juares v. Commonwealth , 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997). “In so doing, we must discard the evidence of the accused in conflic t with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences that may be drawn ther efrom.” Watkins v. Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998). On the evening of February 9-10, 2002, A.P., who was twelve years old, spent the night at the home of Rose Harris. Appellant, who was Harris’ brother, came to the house to change his clothes. When Harris left to run an errand, ap pellant went into Harris’ bedroom and pulled A.P. into the room. He touched her buttocks, put hi s hand under her shirt and rubbed her breasts, and exposed himself to her, saying, “You can’t handle this.” Appellant told her that he would be back later that night and that she should be wa iting for him. When Harris returned home, A.P. told her what appellant had done, and Harris told her to sleep ups tairs with the smaller children because appellant did not usually go upstairs. Wh ile in bed that night, appellant came into the room upstairs where the victim was sleeping, and se xually assaulted her. He threatened to kill her if she told anyone.
II. PRETRIAL MOTION Prior to jury selection, appe llant filed a “Notice of Admi ssion of Evidence” pursuant to Code § 18.2-67.7 to allow him to present evidence of earlier false allegati ons of sexual assault against “Rose Harris’s son Ronny Prillaman . . . and an adult male Matthew Hart.”- 3 - Appellant stated that he could present evidence that A.P. had made two prior false accusations against Ronny Prillaman and that Prillaman was “r eady to testify that both of these allegations are untrue.” The 1999 claim against Prillaman ha d never been adjudicated, although as a result of these allegations Prillaman and A.P. were “m ore or less quarantined from each other.” The more recent complaint was being investigated at the time of the hearing. At appellant’s preliminary hearing, A.P. testifie d that she also had been fondl ed by a former boyfriend of her mother who then left the area and was unavailabl e at trial. Appellant failed to proffer any evidence to prove that allegation was false. A ppellant conceded that he was “not sure exactly what these allegations – the deta ils of these allegations . . . other than what [he could] piece together from, you know, talking to Rose and the evidence that was presen ted at the preliminary hearing.” After reviewing the standard for the admissi on of this type of ev idence, the trial judge ruled as follows: I have considered the [Clinebel l] case, 235 Va. 319. I have also considered the law of evidence inVirginia by Professor Friend and the proffer of evidence from counsel for the defense. And it is the court’s opinion that the evidence listed on the Notice of Admission of Evidence pursuant to statut e 18.2-67.7 would not be admissible. Appellant was subsequently convicted of aggravated sexual battery under Code § 18.2-67.3. On appeal, appellant contends that the trial court abused its discretion in ruling that the evidence proffered was inadmissible and that he was deprived of hi s constitutional right to cross-examine the witness. We disagree.
III. ANALYSIS The issue we must decide in this case is wh ether the trial court abused its discretion in excluding the proffered testimony of Prillaman denyi ng that he had earlier sexually assaulted the- 4 - complaining witness. In effect, we must a ddress whether a mere denial was sufficient to establish “a reasonable probability of falsity.” “The admissibility of evidence is within th e broad discretion of the trial court, and a ruling will not be disturbed on appeal in the ab sence of an abuse of discretion.” Blain v. Commonwealth , 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988). “Cross examination is an absolute right guaranteed to a defendant by the c onfrontation clause of the Sixth Amendment and is fundamental to the truth-finding process. ” Clinebell v. Commonwealth, 235 Va. 319, 325, 368 S.E.2d 263, 266 (1988) (citing Davis v. Alaska, 415 U.S. 308, 315-17 (1974)). Ordinarily, “a witness’ credibility may not be impeached by s howing specific acts of untruthfulness or bad conduct.” Id. at 323-24, 368 S.E.2d at 265. However “the complaining witness [in sex offense cases] may be cross-examined about prior false accusations, and if the witness denies making the statement, the defense may submit proof of such charges.” Id. at 325, 368 S.E.2d at 266 (citing State v. Mikula, 269 N.W.2d 195, 198-99 (Mich. Ct . App. 1978)). However, such accusations are admissible “only if a court makes a threshol d determination that a reasonable probability of falsity exists.” Id. 2 The “reasonable probability of falsity” test enunciated by the Supreme Court in Clinebell , controls the admissibility of the proffered evidence in this case. In Clinebell, the trial court found that a father accused of rape by his daughter had a right to question her about two prior “patently untrue” claims that when she was ten a nd eleven years old she was pregnant and that

2 Because the evidence appellant sought to admit consists of prior allegations, not “sexual conduct” under Code § 18.2-67.7, the Rape Shield stat ute is not implicated in the instant case. See Clinebell , 235 Va. at 322, 368 S.E.2d at 264; Cairns v. Commonwealth , 40 Va. App. 271, 283, 579 S.E.2d 340, 346 (2003).- 5 - she had earlier accused her uncle and grandfather of sexual assault. 3 Because the victim’s prior claims were “obviously false,” the Supreme Court held that a jury could properly infer that her claims of sexual misconduct against her grandfat her and uncle, and her pending claim against her father, were also false. Unlike the factual scenario outlined above, the proffered evidence of falsity in the instant case is the mere denial by Prillaman of the earlie r allegations as outlined by appellant’s mother to defense counsel. Although we have not yet addr essed whether mere denial testimony provides a reasonable probability of falsit y, other jurisdictions that have considered this issue have concluded that it is inherently self-serving and does not, by itself , establish falsity. We agree. See Hughes v. Raines , 641 F.2d 790, 792-93 (9th Cir. 1981) (holding in a habeas corpus proceeding that the defendant’s denial and the non-prosecution of another for a rape alleged by the same complaining witness does not prove falsity); Commonwealth v. Hicks, 503 N.E.2d 969, 973 (Mass. App. Ct. 1987) (trial j udge did not abuse his discretion in determining that the offer of proof as to falsity of two allegedly false allegations did not “provi de evidence of similar probative force” sufficient to meet the thres hold requirements for admissibility); State v. Anderson, 686 P.2d 193, 200 (Mont. 1984) (holding that the “mere denial” of an act does not establish falsity); State v. Kr ingstad, 353 N.W.2d 302, 311 (N.D. 1984) (holding that a denial of prior allegation of rape was insufficient to showfalsity absent corroborating testimony); Quinn v. Haynes, 234 F.3d 837, 850 (4th Cir. 2000) (holding ina habeas corpus proceeding there was no violation of the Confrontation Clause because “simple denial testimony” is insufficient to establish a falsity basis and such testimony is “inherently self-serving and unreliable”).

3 Her grandfather was ac quitted after a trial.- 6 - Appellant’s reliance on Winfield v. Co mmonwealth, 225 Va. 211, 301 S.E.2d 15 (1983), is misplaced. In Winfield, a case controlled by Code §18.2-67.7(C) deli neating relevant past sexual conduct, the victim had a “distinctive pattern of past sexual conduct, involving the extortion of money by threat af ter acts of prostitution,” and “the proffered testimony of [the witness] appeared to contain elements of this kind.” Id. at 220, 301 S.E.2d at 20. This is a distinctly different factual s ituation from the one at bar. Thus, we hold that the trial court did not abus e its discretion in ruling that the proffered denial of Prillaman and the tota l absence of any proffer about the validity of her complaint of fondling by Matthew Hart does not satisfy the Cl inebell threshold requirement of reasonable probability of falsity. Defense counsel conceded that he was unsure of the details of the allegations other than “what [he could] piece together from, you know, talking to Rose [Harris (appellant’s sister)] and the evidence that was pr esented at the preliminary hearing.” There was no evidence presented to support the prior allegations other th an Prillaman’s denial, and no evidence at all was proffered about the compla int against Matthew Hart . Thus, it was not an abuse of discretion of the trial court to find that this testimony, standing alone, would not provide a reasonable probability that the victim’s allega tions were false. We, therefore, affirm the judgment of the trial court. Affirmed.