COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick,* Judges Baker and Annunziata 

Argued at Alexandria, Virginia 

ERIC BLAYLOCK 

 OPINION BY 

v. Record No. 1579-96-4 JUDGE ROSEMARIE ANNUNZIATA 

 FEBRUARY 17, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY 

Benjamin N. A. Kendrick, Judge 

 Albert J. Ahern, Jr. (Louis Koutoulakos, on 

briefs), for appellant. 

 Richard B. Smith, Assistant Attorney General 

(Richard Cullen, Attorney General, on brief), 

for appellee. 

 Following a jury trial, appellant, Eric Blaylock, was 

convicted of aggravated sexual battery upon a child less than 

thirteen years of age in violation of Code § 18.2-67.3. On 

appeal, he contends that the trial court erred in making numerous 

evidentiary rulings and when instructing the jury. For the 

reasons which follow, we reverse the decision of the trial court. 

 The facts related here are limited to those pertinent to the 

issues raised on appeal and they are set forth in the light most 

favorable to the Commonwealth, the party prevailing below. 

McBride v. Commonwealth, 24 Va. App. 603, 605-06, 484 S.E.2d 165, 

167 (1997) (citing Martin v. Commonwealth, 4 Va. App. 438, 443, 

358 S.E.2d 415, 418 (1987)). After the Commonwealth brought 

 

 *On November 19, 1997, Judge Fitzpatrick succeeded Judge 

Moon as chief judge. 
 2 

child pornography charges against appellant relating to materials 

transmitted through the Internet and found on a computer in 

appellant's home, Jana Starr brought charges against appellant 

for sexually molesting her several years earlier. The 

Commonwealth chose not to pursue the pornography charges, but 

indicted appellant for aggravated sexual battery on a child under 

thirteen. 

 Starr testified she was eleven years of age when she was 

sexually molested in 1985 by appellant, the half-brother of one 

of Starr's close friends at the time. Appellant was then 

twenty-four years old. He lived directly across the street from 

Starr and was described by her as a "big brother" figure. 

 Starr testified that appellant entered her home one evening 

when she was alone and offered her a backrub. Starr stated that 

after moving her bra and shirt aside, appellant pushed down her 

shorts and underpants and began to lick her back and then 

proceeded to rub her genitals. Penetration occurred when 

appellant partially inserted one of his fingers into her vagina. 

 At the time, Starr never told anyone of the incident because she 

was embarrassed and because of the close relationship which 

existed between her and the appellant's church community. At 

trial, appellant denied the incident had occurred and presented 

an alibi defense. 

 The jury convicted appellant of the charge of aggravated 

sexual battery of a child under thirteen years of age. In 
 3 

accordance with the jury recommendation, the court sentenced 

appellant to eight years imprisonment. 
 4 

 I. 

 Evidence Regarding Starr's Reputation for Truth 

 Appellant proffered the testimony of Starr's two former 

Arlington neighbors who would have testified that Starr's 

reputation in Arlington for truthfulness was bad. Starr last 

lived in Arlington in 1993. The trial court sustained the 

Commonwealth's objection to the evidence and restricted 

reputation evidence to the community in which Starr lived at the 

time of trial. We find the exclusion of the evidence to be 

reversible error. 

 In support of the trial court's exclusion of the evidence, 

the Commonwealth relies in part on Mohler v. Commonwealth, 132 

Va. 713, 735, 111 S.E. 454, 461 (1922), which states that the 

"question to be investigated is the reputation of the witness for 

truth and veracity as of the time at which he testifies." The 

Commonwealth acknowledges that the fact the witness sought to be 

impeached no longer resides in a particular community does not 

per se bar reputation testimony from that community. See Clark 

v. Commonwealth, 202 Va. 787, 790-91, 120 S.E.2d 270, 273 (1961). 

 Nevertheless, relying on Cantrell v. Superior Loan Corp., 603 

S.W.2d 627, 639 (Mo. Ct. App. 1980), and State v. Thomas, 113 

P.2d 73, 77 (Wash. 1941), the Commonwealth contends that 

"reputation evidence from a former community is admissible only 

upon a showing of a present connection with the community." The 

Commonwealth argues that, because Starr had no present connection 
 5 

with the Arlington community, the evidence was properly excluded. 

 The question before us was settled in Brown v. Commonwealth, 

147 Va. 660, 662, 137 S.E. 492, 492 (1927). Citing Wigmore on 

Evidence1 and reasoning from the premise that "a status once 

established is generally presumed to continue unchanged until the 

contrary is shown," the Virginia Supreme Court held that the 

remoteness of a witness' knowledge of reputation goes to its 

weight and not to its admissibility. Id. To be sure, the 

evidence "must not be so distant in time as to be void of real 

probative value in showing present character." Id.

 The determination of whether evidence is so remote as to be 

without probative value rests in the discretion of the trial 

court. Id. at 662, 137 S.E. at 493. While some authority in a 

minority of jurisdictions supports the exclusion of evidence of 

character established at a time other than the time of trial, 

Wigmore on Evidence notes that the minority position is "wholly 

incorrect on principle, because it is founded on a fallacious 

analysis of the problem [and it is further] objectionable in 

policy, because it excludes a class of evidence often meritorious 

in itself and sometimes the sole kind that is available." 

2 Wigmore on Evidence § 928 (Chadbourne rev. 1970). 

 

 1"'On principle, the correct solution seems to be that prior 

character at any time may be admitted, as being relevant to show 

present character, . . . [t]he only limitation [being] . . . that 

the character must not be so distant in time as to be void of 

real probative value in showing present character . . . .'" 

Brown, 147 Va. at 662, 137 S.E. at 493 (quoting 2 Wigmore on 

Evidence § 928 (2d ed. 1923)). 
 6 

 The trial court's error in this case is one of law. In 

excluding the character evidence on the basis that it must 

concern the place "where she lives or where she works," the trial 

court applied the wrong standard to the evidence before it. 

 Our determination of whether the error is harmless is guided 

by familiar principles. Non-constitutional error "is harmless 

'[w]hen it plainly appears from the record and the evidence given 

at the trial that the parties have had a fair trial on the merits 

and substantial justice has been reached.'" Lavinder v. 

Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991) 

(en banc) (quoting Code § 8.01-678) (emphasis added in Lavinder). 

 Applying the standard articulated in Lavinder, we cannot say 

that it plainly appears that appellant received a fair trial and 

that substantial justice was achieved. First, the Commonwealth's 

case rested in large measure on Starr's credibility. Second, the 

defense specifically stated in its opening statement that they 

intended to produce witnesses to establish the victim's bad 

reputation for truth and veracity, evidence which they should 

have been permitted to present. Finally, in her closing 

argument, the attorney for the Commonwealth stated, over defense 

objection, that the defense had promised to prove that the victim 

had a bad reputation for truth and veracity and that the defense 

had failed to do so. Accordingly, we find the error was not 

harmless and, on that basis, we reverse appellant's conviction 

and remand for a new trial, if the Commonwealth be so advised. 
 7 

Although we reverse the conviction on this ground, we address the 

remaining issues raised on appeal as they may arise upon retrial. 

 

 II. 

Admissibility of Pornographic Material 

 Prior to trial, the trial court ruled admissible several 

exhibits offered by the Commonwealth: three exhibits were 

pornographic pictures involving children and two proposed 

exhibits consisted of stories taken from the defendant's computer 

portraying a fictional adult engaging in criminal and perverted 

sex with a child. The Commonwealth ultimately sought the 

admission of only one of the stories into evidence. The court 

reasoned that the exhibits were probative of appellant's 

lascivious intent in sexually assaulting Starr. 

 The Commonwealth also sought to have admitted a videotape 

taken from appellant's computer containing twenty-four 

pornographic pictures involving children. Three of the videotape 

pictures duplicated the three already admitted in Exhibits 3, 4, 

and 5. The court denied the motion, ruling that the prejudicial 

effect of presenting the video to the jury in the Commonwealth's 

case-in-chief outweighed its probative value. However, when 

appellant denied during cross-examination that he had ever seen 

the pornographic pictures taken from his computer, the court, on 

its own motion and reasoning that appellant's response during 

cross-examination put his credibility with respect to his 
 8 

knowledge of the pictures in issue, allowed the Commonwealth to 

play the videotape for the jury. 

 Appellant contends that the pornographic images and the 

sexually explicit story were improperly admitted. Citing Brown 

v. Commonwealth, 3 Va. App. 182, 348 S.E.2d 849 (1986), and 

Bunting v. Commonwealth, 208 Va. 309, 157 S.E.2d 204 (1967), 

appellant argues the pornographic materials were not relevant to 

the determination of the intent at issue in the charged assault 

and that they were more prejudicial than probative. He also 

argues that the videotape, composed of similar material, was 

improperly used for impeachment purposes. We agree with both 

contentions.2

 As a general rule, "other crimes" evidence has no probative 

value and is inadmissible. See Guill v. Commonwealth, __ Va. __, 

__, __ S.E.2d __, __ (1998) (citing, inter alia, Kirkpatrick v. 

Commonwealth, 211 Va. 269, 272, 176 S.E.2d 802, 805 (1970)); 

Bottoms v. Commonwealth, 22 Va. App. 378, 383, 470 S.E.2d 153, 

156 (1996) (citing Kirkpatrick, 211 Va. at 272, 176 S.E.2d at 

805). However, "where the motive, intent, or knowledge of the 

accused is at issue, evidence of other offenses is admissible if 

it shows the conduct or attitude of the accused toward his 

 

 2Appellant also contends that the acquisition of the 

pornographic materials in question was too remote from the 

alleged offense to be probative of the issue of intent. In light 

of our holding that the pornographic materials were erroneously 

admitted on the issue of appellant's intent, we do not address 

this argument. 
 9 

victim, establishes the relationship between the parties, or 

negates the possibility of accident or mistake." Moore v. 

Commonwealth, 222 Va. 72, 76, 278 S.E.2d 822, 824 (1981) (citing, 

inter alia, Kirkpatrick, 211 Va. at 272, 176 S.E.2d at 805). 

 In order to prove the charge of aggravated sexual battery in 

violation of Code § 18.2-67.3, the Commonwealth had to prove 

beyond a reasonable doubt that appellant had "sexually abuse[d] 

the complaining witness" and that "[t]he complaining witness is 

less than thirteen years of age." "Sexual abuse" is "an act 

committed with the intent to sexually molest, arouse, or gratify 

any person, where . . . [t]he accused intentionally touches the 

complaining witness' intimate parts." Code § 18.2-67.10(6). 

"Intent is the purpose formed in a person's mind that may, and 

often must, be inferred from the facts and circumstances in a 

particular case." Ridley v. Commonwealth, 219 Va. 834, 836, 252 

S.E.2d 313, 314 (1979); Jennings v. Commonwealth, 20 Va. App. 9, 

17, 454 S.E.2d 752, 755 (citing Ridley, 219 Va. at 836, 252 

S.E.2d at 314), aff'd, 21 Va. App. 328, 464 S.E.2d 179 (1995) (en

banc) (mem.). 

 The Commonwealth must prove each element of a charged 

offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 

307, 315-16 (1979); Satterfield v. Commonwealth, 14 Va. App. 630, 

636, 420 S.E.2d 228, 232 (1992) (en banc). That principle of 

law, however, does not mean that the Commonwealth may always 

offer other bad acts to prove the intent of defendants accused of 
 10 

specific intent crimes. If the Commonwealth's burden to prove 

intent were dispositive, "the general rule prohibiting 

introduction of prior bad acts to show character would never 

apply to specific intent crimes because intent would always be at 

issue." State v. Ives, 927 P.2d 762, 770 (Ariz. 1996). 

 Appellant maintained at trial that the incident reported by 

Starr never occurred. He introduced no evidence suggesting that 

the alleged sexual abuse took place without the requisite intent, 

or that the touching was the result of mistake or accident; 

instead, he denied the incident altogether and presented an alibi 

defense. The defense theory of the case did not relieve the 

Commonwealth of its burden to prove the element of intent. 

Estelle v. McGuire, 502 U.S. 62, 69 (1991); Essex v. 

Commonwealth, 18 Va. App. 168, 172, 442 S.E.2d 707, 710 (1994) 

(citing Pittman v. Commonwealth, 17 Va. App. 33, 35, 434 S.E.2d 

694, 696 (1993)). However, the question before us is whether 

"other crimes" evidence is admissible on the issue of intent when 

intent is not genuinely in dispute. We hold that it is not 

admissible. 

 In Hill v. Commonwealth, 17 Va. App. 480, 486, 438 S.E.2d 

296, 300 (1993), this Court set forth the principle which 

underlies our decision here: 

 The Commonwealth . . . argu[es] that when 

intent is an element of the offense, prior 

offenses should be admissible. Intent was at 

issue here, as it is in most crimes. 

Kirkpatrick, Boyd, Eccles, and Donahue, all 

clearly indicate, however, that a significant 

nexus must exist between intent and the 
 11 

charge at hand. That nexus must be greater 

than a basic recitation of the fact that 

intent is an element of the crime. To 

conclude otherwise is to allow the exception 

in Kirkpatrick to swallow the general rule. 

In Hill, we held that admission of prior bad acts evidence was 

reversible error because neither the Commonwealth's evidence nor 

the evidence presented by the defense put the matter of intent in 

controversy.3 Id. at 487, 438 S.E.2d at 300; see also Reynolds 

v. Commonwealth, 24 Va. App. 220, 225, 481 S.E.2d 479, 482 (1997) 

(citing Foster v. Commonwealth, 5 Va. App. 316, 323, 362 S.E.2d 

745, 749 (1987)); Tucker v. Commonwealth, 17 Va. App. 520, 

523-24, 438 S.E.2d 492, 494 (1993); Foster, 5 Va. App. at 323, 

362 S.E.2d at 749 (citing Henderson v. Commonwealth, 5 Va. App. 

125, 129, 360 S.E.2d 876, 878 (1987)); Henderson, 5 Va. App. at 

129, 360 S.E.2d at 878. 

 The position articulated by this Court in Hill represents 

the decisional law of the majority of courts which have addressed 

 

 3Jennings v. Commonwealth, 20 Va. App. 9, 454 S.E.2d 752, 

aff'd, 21 Va. App. 328, 464 S.E.2d 179 (1995) (en banc) (mem.), 

relied upon by the Commonwealth, is not to the contrary. In 

Jennings, 20 Va. App. at 12, 454 S.E.2d at 753, the defendant was 

accused of abduction with the intent to defile. The 

Commonwealth's evidence showed that the defendant had tied a 

child to a bed with the intent to anally rape him. It also 

showed, through the testimony of the child who had been 

victimized, that the defendant explained that his purpose in 

tying the child to the bed was to punish him. Id. at 17, 454 

S.E.2d at 756. Thus, the issue of intent was in genuine 

controversy, and this Court found admissible the evidence of the 

defendant's prior acts of sodomy. Consistent with the rule 

explained in Hill, 17 Va. App. at 487, 438 S.E.2d at 300, the 

evidence of "the prior offense was . . . necessary to show intent 

in the context of the Commonwealth's other evidence." 
 12 

the issue. See United States v. Jemal, 26 F.3d 1267, 1274 (3d 

Cir. 1994); United States v. Jenkins, 7 F.3d 803, 807 (8th Cir. 

1993); United States v. Hernandez, 975 F.2d 1035, 1040 (4th Cir. 

1992); United States v. Ortiz, 857 F.2d 900, 904 (2d Cir. 1988); 

State v. Ives, 927 P.2d 762, 770 (Ariz. 1996) (adopting Colon v. 

United States, 880 F.2d 650, 657 (2d Cir. 1989)); Howard v. 

United States, 663 A.2d 524, 528 n.6 (D.C. 1995) (citing, inter

alia, Pounds v. United States, 529 A.2d 791, 795 n.6 (D.C. 

1986)); Christian-Hornaday v. State, 649 N.E.2d 669, 671 (Ind. 

App. 1995) (citing Fisher v. State, 641 N.E.2d 105, 107 n.2 (Ind. 

App. 1994)); Emory v. State, 647 A.2d 1243, 1254-55 (Md. Ct. 

Spec. App. 1994); State v. Wallace, 943 S.W.2d 721, 724-25 (Mo. 

Ct. App. 1997) (citing State v. Conley, 873 S.W.2d 233, 237 (Mo. 

1994) (en banc)); State v. Jones, 899 P.2d 1139, 1142 (N.M. Ct. 

App.), cert. granted, 898 P.2d 120 (N.M. 1995), cert. dismissed, 

908 P.2d 750 (N.M. 1996); State v. Grubb, 675 N.E.2d 1353, 1356 

(Ohio Ct. App. 1996); Johnson v. State, 932 S.W.2d 296, 302 (Tex. 

Ct. App. 1996); see also 1 McCormick on Evidence 809-10 (4th ed. 

1992) ("[T]he issue on which the other crimes evidence is said to 

bear should be the subject of a genuine controversy. For 

example, if the prosecution maintains that the other crime 

reveals defendant's guilty state of mind, then his intent must be 

disputed."). But see United States v. Mazzanti, 888 F.2d 1165, 

1171 (7th Cir. 1989); State v. White, 538 N.W.2d 237, 244 (S.D. 

1995). 
 13 

 In appellant's trial, the "actual issue" was "'commission of 

the act itself,'" rather than appellant's intent in committing 

the act. Reynolds, 24 Va. App. at 225, 481 S.E.2d at 482 

(quoting Foster, 5 Va. App. at 323, 362 S.E.2d at 749). Neither 

the Commonwealth's evidence nor that developed by the appellant 

puts the issue of intent in genuine dispute. Cf. Jennings, 20 

Va. App. at 17-18, 454 S.E.2d at 756. The child pornography and 

sexually explicit story were, on this ground, inadmissible to 

prove appellant's intent.4

 Furthermore, where a defendant's intent is genuinely 

uncontested, any nominal probative value will be easily 

outweighed by the danger of prejudice. See Reynolds, 24 Va. App. 

at 225, 481 S.E.2d at 481-82 (citing Foster, 5 Va. App. at 

323-24, 362 S.E.2d at 748-49); Tucker, 17 Va. App. at 523-24, 438 

S.E.2d at 494; see also United States v. Beechum, 582 F.2d 898, 

914 (5th Cir. 1978) (en banc) ("If the defendant's intent is not 

contested, then the incremental probative value of the extrinsic 

offense is inconsequential when compared to its prejudice; 

therefore, in this circumstance the evidence is uniformly 

excluded."); State v. McGlew, 658 A.2d 1191, 1196 (N.H. 1995). 

 

 4This case does not involve the use of other bad acts 

evidence where the other acts are continuous and interwoven or 

part of a series of related crimes. Cf. Wilkins v. Commonwealth, 

18 Va. App. 293, 298-99, 443 S.E.2d 440, 443 (1994) (en banc). 

Similarly, this case does not involve circumstances in which 

intent may not be inferred from the unlawful act itself. Cf.

People v. Vargas, 666 N.E.2d 1357, 1358 (N.Y. 1996) (mem.); 

Johnson, 932 S.W.2d at 302. 
 14 

Since the issue of intent was not genuinely in dispute in this 

case, the probative value of the child pornography evidence was 

clearly outweighed by its prejudicial effect; the tendency of the 

child pornography and sexually explicit story to divert the jury 

and inject extraneous considerations into the fact-finding 

process, as well as the inherently inflammatory character of the 

evidence, was clear. Given the nature of the sexually explicit 

materials, the risk was great that the jury might consider the 

unpunished possession of the materials in arriving at their 

verdict. See Tucker, 17 Va. App. at 524, 438 S.E.2d at 494. 

Indeed, as the trial court noted in its initial ruling excluding 

the videotape evidence, admission of the sexually explicit 

materials "runs the risk of turning an aggravated sexual battery 

trial into a child pornography trial." 

 "'The admissibility of evidence is within the broad 

discretion of the trial court, and a ruling will not be disturbed 

on appeal in the absence of an abuse of discretion.'" Bottoms, 

22 Va. App. at 384, 470 S.E.2d at 156 (quoting Blain v. 

Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988)). 

Because the issue of intent was not genuinely in dispute, we find 

the admission of the child pornography and story on the issue of 

appellant's intent to be an abuse of discretion.5

 

 5We address this evidence only in the context in which it 

arose in the first trial. If, on retrial, appellant claimed 

accident or mistake, the evidence would be admissible, as the 

issue of intent would be genuinely in dispute. 
 15 

 We also agree with appellant that the videotape was 

improperly shown to the jury. The trial court, reversing its 

earlier ruling excluding the videotape on the ground its 

prejudicial effect outweighed any probative value it might have, 

allowed the prosecution to play the videotape to the jury to 

impeach appellant's denial of any knowledge of the pictures 

comprising the Commonwealth's child pornography exhibits and 

their presence on his computer. The Commonwealth's child 

pornography exhibits were part of the videotape compilation of 

pictures. The court reasoned that the jury should properly 

evaluate appellant's denial in light of the number of pictures 

found on appellant's computer, twenty-four of which were included 

in the videotape exhibit. 

 We find the admission of the videotape to be erroneous on 

the ground that a witness may not be cross-examined on a 

collateral subject.6

 If the witness answers a question on a 

collateral issue, the answer is conclusive and may not be 

contradicted with further evidence. Simpson v. Commonwealth, 13 

Va. App. 604, 607, 414 S.E.2d 407, 409 (1992) (citing Seilheimer 

v. Melville, 224 Va. 323, 326, 295 S.E.2d 896, 898 (1982)). 

 

 6As the Commonwealth notes, appellant failed to object to 

the Commonwealth's question which became the predicate for the 

court's ruling on the admissibility of the videotape for 

impeachment purposes. This failure to object, however, does not 

bar appellant from appealing the introduction of the material 

used to impeach him on the collateral matter. Simpson v. 

Commonwealth, 13 Va. App. 604, 607-08, 414 S.E.2d 407, 409 

(1992). 
 16 

"'The test as to whether a matter is material or collateral, in 

the matter of impeachment of a witness, is whether or not the 

cross-examining party would be entitled to prove it in support of 

his case.'" Williams v. Commonwealth, 16 Va. App. 928, 935, 434 

S.E.2d 343, 347 (1993) (quoting Allen v. Commonwealth, 122 Va. 

834, 842, 94 S.E. 783, 786 (1918)). Because we hold that the 

Commonwealth could not introduce the child pornography evidence 

in its case-in-chief, the videotape is impeachment evidence on a 

collateral matter and should not have been shown to the jury.7

 III. 

Admissibility of Hearsay Testimony 

 On direct examination, Starr testified that, in 1992, she 

told her husband she had been "sexually abused". Starr also 

testified that, in a subsequent conversation the same year, she 

told her husband that appellant "was the individual whom I had 

things to work out with." As appellant contends, Starr's 

statements given during her direct examination constituted 

hearsay and were erroneously admitted. See Haycox v. Dunn, 200 

Va. 212, 227, 104 S.E.2d 800, 809-10 (1958); 2 Charles E. Friend, 

The Law of Evidence in Virginia § 18-4 (4th ed. 1993). 

 However, we reject appellant's contention that the testimony 

of Starr's husband regarding Starr's report to him about the 

assault and the identity of the perpetrator was erroneously 

 

 7In light of our reversal and remand of this case on the 

issue of reputation evidence, we will not undertake harmless 

error analysis of other errors. 
 17 

admitted hearsay. Lance Curtis Starr, Starr's husband, testified 

over appellant's objection that, on one occasion in 1992, Starr 

told him she had been molested. He also testified that his wife, 

on a separate occasion, identified appellant as the person who 

had assaulted her. The testimony of Starr's husband was properly 

admitted. His testimony was elicited after appellant 

cross-examined Starr and attacked her testimony as a story of 

recent fabrication, impelled by her desire to become involved in 

the appellant's Internet pornography case. 

 In Faison v. Hudson, 243 Va. 397, 404-05, 417 S.E.2d 305, 

309 (1992) (quoting Honaker Lumber Co. v. Kiser, 134 Va. 50, 60, 

113 S.E. 718, 721 (1922)): 

 "Where a witness has been assailed on the 

ground that [her] story is a recent 

fabrication, or that [she] has some motive to 

testifying falsely, proof that [she] gave a 

similar account of the transaction when the 

motive did not exist, before the effect of 

such an account could be foreseen or motives 

of interest would have induced a different 

statement, is admissible." 

 Appellant first suggested in his opening statement that 

Starr had fabricated the charge "in order to get involved in [the 

publicity of the Internet] case" and because she was "infatuated" 

with appellant. Subsequently, during cross-examination, Starr 

was questioned about her motives to fabricate the charge. 

Accordingly, we find that the trial court did not abuse its 

discretion in admitting the statements made by Starr's husband.8

 

 8Appellant contended both at trial and on appeal that 
 18 

 IV. 

 Admissibility of Statements Obtained in Violation of Miranda

 Appellant contends the trial court erred in permitting the 

Commonwealth to cross-examine him with respect to certain 

statements he made before being informed of his rights as 

required by Miranda v. Arizona, 384 U.S. 436 (1966). Appellant 

made a statement when he was taken before the magistrate after 

his arrest on the pornography charges. According to an officer 

present at the time, in response to the magistrate's question, 

"what [is] this . . . all about?", appellant answered: 

 he liked young-looking girls and he liked 

pictures of them and he also said that he 

gets pictures of young-looking girls over his 

computer and he looks at some of them and he 

reroutes others. 

 This statement was suppressed prior to trial. However, the 

court limited the ruling to the Commonwealth's case-in-chief, 

 

Starr's statements and those of her husband were not "recent" and 

were therefore erroneously admitted in violation of Code 

§ 19.2-268.2. 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 complaining witness. 

Because we resolve the evidentiary question on other grounds, we 

do not reach the contention that admitting the statements 

violated the statute. 
 19 

stating, "I might consider it different as a cross-examination or 

impeachment issue." 

 The Commonwealth contends the substance of the statement 

was never made the subject of the cross-examination.9

 Assuming 

without deciding the statement's substance is implicated by the 

question posed, we find appellant's argument is lacking merit. 

See Harris v. New York, 401 U.S. 222, 226 (1971) (holding that a 

statement obtained from a defendant in violation of Miranda can 

be used by the government in cross-examination or rebuttal to 

impeach the defendant's credibility if he or she chooses to 

testify). Appellant's further contention that such statements 

are permitted during cross-examination only when a defendant has 

made "sweeping denials of the matter contained in the suppressed 

statements on direct examination" is likewise without merit. See

Harris, 401 U.S. at 223 (allowing use of suppressed statements to 

impeach a defendant whose trial testimony "partially 

contradicted" his prior statements); Jones v. Commonwealth, 228 

Va. 427, 441, 323 S.E.2d 554, 561 (1984) (explaining that the 

Commonwealth may impeach a defendant's inconsistent testimony 

with suppressed statements). 

 Appellant's challenge to a statement he made to Detective 

Smith,10 made before Miranda warnings were given, is likewise 

 

 9When appellant denied any knowledge of the pornographic 

materials on his computer, the Commonwealth's attorney asked, 

"Well, you have admitted that you like to look at pictures of 

young girls, isn't that correct?" Appellant answered, "No, sir." 

 10During her cross-examination of the appellant, the 
 20 

 

without merit as it was also properly the subject of 

cross-examination.11

 V. 

 Jury Instructions 

 Appellant cites as error the court's refusal to give five of 

his instructions and the court's acceptance of one of the 

Commonwealth's instructions.12 Defense instructions L, M, and E 

would have advised the jury that to convict the appellant on the 

charge, the Commonwealth had to prove beyond a reasonable doubt 

the victim was under the age of thirteen when assaulted. The 

jury was, in fact, duly instructed as to the age requirement.13

 

prosecutor asked him if he recalled "a detective who said to you 

that he was looking for child pornography." The appellant 

answered, "No, ma'am." She then impeached appellant with the 

answer appellant gave to Detective Smith, to the effect that he 

would "find things on the computer, but they are just fantasy." 

 11Appellant also contends he was wrongfully denied a hearing 

on whether the statement to Detective Smith should be suppressed 

on the ground it was made before he received Miranda warnings, 

citing Stockton v. Commonwealth, 227 Va. 124, 314 S.E.2d 371 

(1986), habeas corpus granted, 852 F.2d 740 (4th Cir. 1988). 

However, the failure to give appellant his Miranda warnings was 

never in dispute; the point was conceded by the prosecutor and 

accepted as established by the court, obviating the need for a 

hearing on the matter. 

 12Appellant contends the trial judge erred in granting one of 

the Commonwealth's instructions on the ground it "singled out for 

special emphasis a part of the evidence tending to establish a 

particular fact." This instruction addressed the child 

pornography evidence. In light of our decision regarding the 

propriety of admitting the videotape evidence, we do not address 

this question. 

 13The court instructed the jury that, "The Commonwealth must 

prove beyond a reasonable doubt . . . that Jana Starr . . . was 

less than 13 years of age." 
 21 

Accordingly, the trial court did not err in refusing the 

proffered defense instructions. See Cardwell v. Commonwealth, 

248 Va. 501, 514, 450 S.E.2d 146, 154 (1994) (explaining that a 

court is not obligated to grant duplicative instructions). 

 Defense instruction D sought to define reasonable doubt to 

the jury. Appellant concedes, however, that this Court, as well 

as the Supreme Court of Virginia, has consistently "discouraged 

trial courts from attempting to define reasonable doubt to the 

jury." See, e.g., Strawderman v. Commonwealth, 200 Va. 855, 858, 

108 S.E.2d 376, 379 (1989); Cooper v. Commonwealth, 2 Va. App. 

497, 500, 345 S.E.2d 775, 777 (1986) (quoting Strawderman, 200 

Va. at 858, 108 S.E.2d at 379). The trial court did not err in 

rejecting the proffered instruction. 

 Appellant tendered three instructions addressing the alibi 

defense. The court granted one of the three proffered 

instructions.14 On appeal, appellant contends the court erred in 

failing to instruct the jury that he did not bear the burden to 

prove his alibi.15 Contrary to appellant's contention, the court 

 

 14The alibi instruction as given reads: 

 The defendant relies upon the alibi, the 

defense of alibi, namely, that he was not 

present at the time and place the alleged 

offense was committed. If after 

consideration of all the evidence you have a 

reasonable doubt that the defendant was 

present at the time and place of [sic] the 

alleged offense was committed, you shall find 

him not guilty. 

 15The proffered defense instruction reads: 
 22 

fully instructed the jury on the defense of alibi, and informed 

the jury that the Commonwealth bore the burden of proof beyond a 

reasonable doubt. In addition, the court specifically instructed 

the jury that appellant bore no burden to produce any evidence. 

Read as a whole, the instructions clearly conveyed to the jury 

each principle of law offered by appellant. See Rollston v. 

Commonwealth, 11 Va. App. 535, 541, 399 S.E.2d 823, 826 (1991) 

(explaining that jury instructions must be read as a whole). 

Because the defense instruction was cumulative, it was neither 

necessary nor required. Cardwell, 248 Va. at 514, 450 S.E.2d at 

154; see also Crabbe v. Commonwealth, 221 Va. 419, 421, 270 

S.E.2d 727, 728 (1980) (per curiam) (holding that an alibi 

instruction is unnecessary where the court instructs the jury on 

the elements of a crime and the burden of proof). 

 The appellant's conviction is reversed and remanded for a 

new trial, if the Commonwealth be so advised. 

 Reversed and remanded. 

 

 The jury is instructed that the burden of 

proving alibi rests on the defendant. 

However, the jury is instructed that the 

defendant need not prove the alibi beyond a 

reasonable doubt, or even by a preponderance 

of the evidence. The defendant must only 

introduce evidence, which, considered with 

the whole evidence, creates a reasonable 

doubt of his guilt.