COURT OF APPEALS OF VIRGINIA 

Present: Judges Frank, Felton and Kelsey 

Argued at Richmond, Virginia 

ALEXANDER ALMOND, JR. 

 MEMORANDUM OPINION* BY 

v. Record No. 3071-01-2 JUDGE D. ARTHUR KELSEY 

DECEMBER 17, 2002 

COMMONWEALTH OF VIRGINIA 

 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

Timothy J. Hauler, Judge 

 Matthew P. Geary for appellant. 

 Jennifer R. Franklin, Assistant Attorney 

General (Jerry W. Kilgore, Attorney General, 

on brief), for appellee. 

The trial court convicted the appellant, Alexander Almond, 

Jr., of sexually battering and forcibly sodomizing a 

seven-year-old girl, in violation of Code §§ 18.2-67.3 and 

18.2-67.1. At trial, the Commonwealth offered the corroborative 

testimony of the child's stepmother under the recent complaint 

rule codified by Code § 19.2-268.2. Almond objected, arguing 

that the child's "delayed making of the statement" took it 

outside of the recent complaint rule. The trial court overruled 

the objection. 

 

*

 Pursuant to Code § 17.1-413, this opinion is not 

designated for publication. 
For two reasons, Almond claims that the trial court erred 

by admitting the stepmother's corroborative testimony. First, 

Almond argues that the trial judge did not make sufficient 

findings on the record to support the admission of the 

testimony. Subsumed within this argument is the contention that 

the child unreasonably delayed her complaint to her stepmother. 

Second, Almond argues that, irrespective of the timeliness of 

the child's complaint, the trial court erred by allowing the 

stepmother to testify regarding certain factual details of the 

complaint. Finding neither contention persuasive, we affirm. 

I. 

On appeal, we must review the evidence "'in the light most 

favorable to the Commonwealth'" and grant it the benefit of any 

reasonable inferences. Ward v. Commonwealth, 264 Va. 648, 654, 

570 S.E.2d 827, 831 (2002) (quoting Higginbotham v. 

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975)). 

That principle requires us to "'discard the evidence of the 

accused'" which conflicts, either directly or inferentially, 

with the Commonwealth's evidence. Wactor v. Commonwealth, 38 

Va. App. 375, 380, 564 S.E.2d 160, 162 (2002) (quoting Watkins 

v. Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859, 866 

(1998)). We view the facts of this case, therefore, through 

this evidentiary prism. 

- 2 -
In 1999, the victim, K.F., resided with her divorced 

mother, younger brother, and maternal grandparents at her 

grandparents' home in Chesterfield. Her father resided in North 

Carolina with his new wife and had regular visitation with K.F. 

K.F.'s mother dated Almond throughout the year of 1999. 

From January to at least December 1999, Almond visited 

K.F.'s residence during the daytime "two or three days a week." 

K.F.'s grandparents normally departed the house in the morning 

for work, leaving K.F., her four-year-old brother, and her 

mother alone. K.F.'s mother was enrolled in classes and spent 

much of her time upstairs doing homework on a computer during 

the afternoon, enabling Almond to spend unsupervised time with 

K.F. downstairs. 

During these unsupervised times, K.F. testified that Almond 

attempted "to have sex" with her. Specifically, K.F. testified 

that Almond unzipped his pants and "put his hands behind [her] 

head and made [her] suck him." On other occasions, K.F. 

testified, Almond touched her on her chest, pulled down her 

shorts and underwear and touched her "privates . . . between 

[her] two legs" with his finger. 

K.F. testified that she was too scared to tell her mother 

what was happening because she was afraid of Almond and she was 

afraid that her mother might not believe her. As a result, it 

was not until July 2000, during a visit with her father in North 

- 3 -
Carolina, that K.F. finally complained to her stepmother about 

Almond's actions. She told her stepmother "[j]ust to get it out 

so it could stop happening." 

 After K.F's testimony, the Commonwealth called the 

stepmother to corroborate K.F.'s complaint. The stepmother 

testified that during a visit to North Carolina, K.F. "said that 

she had something she wanted to talk to me about in the bathroom." 

At that point, Almond's counsel objected: "Objection as to what 

[K.F.] has to say." Explaining the nature of this objection, 

counsel stated: 

Judge, just for the record, I'd state that I 

think a lot of the case law deals with 

parents and stepparents as far as the 

delayed making a statement. 

The Commonwealth argued in favor of admitting the testimony on the 

basis of the recent complaint exception to the hearsay rule and 

proffered a number of cases supporting its argument. The court 

overruled Almond's objection, stating only that it was "familiar 

with the cases" the Commonwealth cited.1

 The stepmother testified that K.F. told her "Alex tried to 

have sex with me." She asked the seven year old "what she meant 

 

1

 Almond briefly argued that "the Castelow case . . . can be 

read either way" in response to the Commonwealth's citation of 

Castelow v. Commonwealth, 29 Va. App. 305, 512 S.E.2d 137 

(1999), regarding the issue of a victim's delay in making a 

complaint. Almond, however, made no further objections 

regarding the recent complaint rule. 

- 4 -
by it" and stated that K.F. told her "he had pulled down her 

shorts and underwear and played with her private areas." The 

stepmother asked the victim, "What do you mean by your private 

areas?," and K.F. responded, "Where I pee from." 

 In response to further questioning, the stepmother 

testified that two days later, K.F. confided additional 

incidents to her. Specifically, K.F. told her stepmother that 

"Alex had made her put her mouth on his penis, and he would take 

her head and push it up and down and that, after he did this for 

a while, some slimy gook stuff had come out the end of it." 

Almond failed to object to any portion of this testimony. 

 After hearing the evidence, just prior to closing 

arguments, the trial judge made the following unprompted remark: 

The Court needs to relate for the record 

that in denying the defense motion regarding 

the objection to the -- or the recent 

complaint that the Court did consider the 

statutory requirements of 19.2-268.2. 

Neither the Commonwealth nor Almond offered any response to the 

court's statement. Following closing arguments, the trial court 

found the evidence established Almond's guilt beyond a 

reasonable doubt on the indictments alleging aggravated sexual 

battery and forcible sodomy. 

II. 

 Almond assigns error to the trial court's admission of the 

stepmother's testimony under the recent complaint exception to the 

- 5 -
hearsay rule. Decisions on the admission of such evidence "lie 

within the trial court's sound discretion and will not be 

disturbed on appeal absent an abuse of discretion." Mitchell v. 

Commonwealth, 25 Va. App. 81, 84, 486 S.E.2d 551, 582 (1997) 

(citing Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 

842 (1989)); see also Leonard v. Commonwealth, 39 Va. App. 134, 

148, 571 S.E.2d 306, ___ (2002) (admissibility issues fall within 

the "broad discretion of the trial court"). 

A. 

 Code § 19.2-268.2 codified the recent complaint exception to 

the hearsay rule. See generally Brown v. Commonwealth, 37 

Va. App. 169, 554 S.E.2d 711 (2001); Terry v. Commonwealth, 24 

Va. App. 627, 484 S.E.2d 614 (1997). The exception applies only 

to criminal sexual assault. Code § 19.2-268.2 permits testimony 

of the "fact that the person injured made complaint of the offense 

. . . not as independent evidence of the offense, but for the 

purpose of corroborating the testimony of the complaining 

witness." 

 Almond argues that the trial court erred by making "no 

findings on the record" to support the admission of the testimony. 

Almond relies on Castelow v. Commonwealth, 29 Va. App. 305, 311, 

512 S.E.2d 137, 140 (1999), which requires the trial judge to 

exclude recent complaint testimony when the victim's delay in 

making the complaint is "unexplained or inconsistent with the 

- 6 -
occurrence of the offense." However, Almond incorrectly reads 

Castelow to add a requirement that the trial court must make its 

foundation findings explicit on the record. 

 Code § 19.2-268.2 does not require a trial court to make 

express factual findings prior to admitting a recent complaint. 

We certainly agree with Almond that it would be better practice 

for a trial judge to state such findings on the record. Doing so 

would not only serve to clarify the issues for the litigants and 

avoid unnecessary appeals, it would defeat the unfair criticism of 

trial judges as being result-oriented in their decisionmaking and 

relying on legal analysis only as an after-the-fact rationale. 

Indeed, Almond lodges just such a charge in this case. See

Appellant's Brief at 11 (alleging the trial judge made his 

unprompted remark about Code § 19.2-268.2, long after he had 

sustained the objection, simply "as an afterthought"). 

 But the fact remains —— the failure of a trial court to 

record its express findings on routine evidentiary matters, in 

itself, does not constitute an abuse of discretion. "Absent clear 

evidence to the contrary in the record, the judgment of a trial 

court comes to us on appeal with a presumption that the law was 

correctly applied to the facts." Yarborough v. Commonwealth, 217 

Va. 971, 978, 234 S.E.2d 286, 291 (1977); Shenk v. Shenk, 39 

Va. App. ___, ___, ___ S.E.2d ___, ___, 2002 Va. LEXIS 680 at *10 

(2002) ("A trial court is presumed to apply the law correctly."); 

- 7 -
Oliver v. Commonwealth, 35 Va. App. 286, 297, 544 S.E.2d 870, 875 

(2001) ("The trial court's judgment is presumed to be correct."). 

This presumption assumes the trial court made whatever subsidiary 

factual findings necessary to support its decision to admit 

contested evidence. Put another way, when the trial judge said 

that in overruling Almond's objection "the Court did consider the 

statutory requirements of 19.2-268.2," we take him at his word.2

 The specific findings Almond contends the court failed to 

make relate to the timeliness of K.F.'s complaint to her 

stepmother. "'The initial determination of timeliness under the 

recent complaint rule is committed to the sound discretion of the 

trial court, and thereafter, timeliness is a matter for the trier 

of fact to consider in weighing the evidence.'" Brown, 37 

Va. App. at 172-73, 554 S.E.2d at 713 (quoting Woodard v. 

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

Terry, 24 Va. App. at 634-35, 484 S.E.2d at 617-18. The 

timeliness question asks whether the complaint has been made 

"'without a delay which is unexplained or is inconsistent with the 

occurrence of the offense.'" Woodard, 19 Va. App. at 27, 448 

 

2 Cf. Napert v. Napert, 261 Va. 45, 47, 540 S.E.2d 882, 884 

(2001) ("Although a better practice would be for a trial court 

to include a statement reflecting its decision to exercise its 

discretion, in the absence of such a statement, we presume that 

a trial court exercised its discretion to dispense with the 

Rule's requirements. Courts are presumed to act in accordance 

with the law and orders of the court are entitled to a 

presumption of regularity."). 

- 8 -
S.E.2d at 330 (quoting Edward W. Cleary, McCormick on Evidence 

§ 297 (3d ed. 1984)) (emphasis omitted). 

 We find ample evidence in the record to support the trial 

court's implicit finding that K.F.'s delay was both explainable 

and consistent with the offense. K.F. testified that she was 

afraid her mother would not believe her and continued to fear 

Almond given what he had done to her. Such fears are common and 

accepted explanations for delay in notifying others of sexual 

abuse —— particularly when the victim is a minor. See, e.g., 

Brown, 37 Va. App. at 173, 554 S.E.2d at 713 (child "didn't think 

anybody was going to believe" her and "felt scared and threatened" 

by the sex offender); Terry, 24 Va. App. at 636, 484 S.E.2d at 618 

(child was "afraid her mother would not believe her" and she was 

afraid her father would hurt the assailant and "end up in jail"). 

Such delays are "completely consistent with the all too common 

circumstances surrounding sexual assault on minors." Woodard, 19 

Va. App. at 28, 448 S.E.2d at 330. 

 Finally, Almond argues that while K.F.'s fear that her mother 

would not believe her "provides a conceivably valid explanation," 

it "does not explain the delay in telling anyone else," including 

her stepmother or father. We do not find this to be a convincing 

distinction. A child on the witness stand should not have to 

itemize the universe of potential reportees to explain her delay. 

Viewing the evidence in the light most favorable to the 

- 9 -
Commonwealth, it is reasonable to infer that a seven-year-old 

child's fear in this regard would be as acute, if not more so, 

with regard to her stepmother as it was with regard to her mother. 

B. 

 Almond also claims the trial court erred by allowing the 

stepmother to testify about the details of the complaint. At 

trial, however, Almond failed to make this specific objection. 

See Rule 5A:18. Nowhere in the record did Almond object that the 

details reported by K.F. were inadmissible. Because the trial 

court did not have the opportunity to consider this issue during 

the trial, Rule 5A:18 bars us from considering the issue for the 

first time on appeal. See Buck v. Commonwealth, 247 Va. 449, 

452-53, 443 S.E.2d 414, 416 (1994) (holding that an appellate 

court will not consider an argument on appeal different from one 

raised at trial even if it is related to the same issue); West 

Alex. Prop. v. First Va. Mort., 221 Va. 134, 138, 267 S.E.2d 149, 

151 (1980) ("On appeal, though taking the same general position as 

in the trial court, an appellant may not rely on reasons which 

could have been but were not raised for the benefit of the lower 

court."); Shenk, 39 Va. App. at ___, ___ S.E.2d at ___, 2002 Va. 

LEXIS 680 at *11 (to preserve an issue for appeal, the "specific 

argument" made on appeal must have been made in the trial court). 

- 10 -
 Though Rule 5A:18 contains a "good cause" or "ends of 

justice" exception to procedural default, we decline to use it in 

this case. See generally M. Morgan Cherry & Associates, Ltd. v. 

Cherry, 38 Va. App. 693, 701, 568 S.E.2d 391, 395 (2002) (en

banc). This exception "'is narrow and is to be used sparingly'" 

by an appellate court. Redman v. Commonwealth, 25 Va. App. 215, 

220-21, 487 S.E.2d 269, 272 (1997) (quoting Brown v. Commonwealth, 

8 Va. App. 126, 132, 380 S.E.2d 8, 10 (1989)). 

 Before we will apply the exception, "a defendant must 

affirmatively show that a miscarriage of justice has occurred, not 

that a miscarriage might have occurred." Id. (citing Mounce v. 

Commonwealth, 4 Va. App. 433, 436, 357 S.E.2d 742, 744 (1987)) 

(emphasis in original); Andrews v. Commonwealth, 37 Va. App. 479, 

494, 559 S.E.2d 401, 409 (2002). This showing cannot be made 

except in "extraordinary situations," when we fear that "clear, 

substantial and material error" has occurred. Phoung v. 

Commonwealth, 15 Va. App. 457, 463, 424 S.E.2d 712, 716 (1992) 

(citation omitted). In this case, we see no occasion for 

declaring the trial court's admission of the details of the recent 

complaint to be a miscarriage of justice.3

 

3 See generally Mitchell v. Commonwealth, 25 Va. App. 81, 

86, 486 S.E.2d 551, 553 (1997) ("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 

- 11 -
III. 

 In sum, ample evidence in the record explains K.F.'s delay in 

complaining to her stepmother. As a result, the trial judge did 

not abuse his discretion by admitting the testimony under the 

recent complaint rule codified in Code § 19.2-268.2. And because 

Almond failed to make a specific objection directed to the details 

of K.F.'s complaint, as opposed to the timeliness of the 

complaint, Rule 5A:18 bars this issue from being raised for the 

first time on appeal. 

 Affirmed. 

 

lies his complaint of the offense. The 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."). 

- 12 -